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Friday, January 21, 2022

SC checked Bhushan, failed to cut him to size

The enduring essays of Michel de Montaigne are awash with observations on the frailties and follies of humans since time immemorial. The corruption of an age, said he, is made up by the contribution of every individual: some contribute treachery, others injustice, atheism, tyranny, avarice, cruelty, according to their power. Had he been alive and been aware of the existence of an anarchist civil rights lawyer from L’Inde named Prashant Bhushan, he might have added “systematic slander’’ to the list of contributions.

Bhushan, to most outside his circle of nihilist admirers, is a “piece of impertinent correspondency, a preposterous shadow, a perpetually recurring mortification,” to employ the words of another celebrated essayist. The legal gadfly has made a lucrative career of helping Left-leaning NGOs deluge the apex court with infructuous public interest litigation (PIL), randomly accused the privileged and powerful in  government, judiciary, and industry, of being submerged in the silt and slime of crookery and corruption.

A decade back he crossed the Rubicon of calumny by grading the last 16 chief justices on the graft graph. Eight were certified unpardonably corrupt, six doubtlessly honest, and two left dangling in between. Bhushan also courted notoriety by releasing arbitrary lists of the most corrupt ministers and politicians. Shooting and scooting, disparaging, muckraking is a favorite pastime which he indulges with glee. Ex-CJI Ranjan Gogoi told TV channels after demitting office that some lawyers had virtually held the court to ransom, and that everyone knew who they were. That Bhushan tops the infamous list is common knowledge.

Leading advocate Harish Salve was the first to call his long-tongued colleague’s bluff in 2009 when he slapped the charge of contempt on the self-appointed guardian of public morality. This was over his scandalous observations on the top court in his interview to the now defunct Tehelka magazine edited by a rapist editor, Tarun Tejpal. The case, however, remained on the backburner till suddenly given a new lease of life by a three-judge bench headed by the redoubtable Justice Arun Mishra who retired on September 2. Hearings will resume later under an “appropriate” bench.

In Justice Arun Mishra, Bhushan met more than his match. Having repeatedly got away with his smear campaign against judges, he was caught napping when charged with criminal contempt over two tweets which he thought innocuous. The first concerned a photo showing CJI Sharad Arvind Bobde astride a Harley Davidson motorcycle owned by the son of a BJP politician sans mask when the court was in “lockdown”. The second tweet was on the role of four CJIs in the “destruction of democracy”.

Bhushan’s defenders immediately went into overdrive. Quite apart from signed appeals from assorted Bar associations, proffered were counterfeit ripostes on the unlikelihood of two tweets obstructing the administration of justice. Was judicial dignity so fragile that it could be shattered by the perorations of an activist-lawyer? Scores of observations from the British and American case laws were cited. Questions were raised on the untenability of the law of contempt in a modern democracy and the dire need to get rid of it.

The three-judge bench, however, refused to go along with the liberal view pointedly rejected in the CK Daftary (1971) ruling that  “a scurrilous attack on a judge in respect of a judgment or past conduct has adverse effect on the due administration of justice [which] in a country like ours has the inevitable effect of undermining the confidence of the public in the judiciary”. Also cited was Justice Ruma Pal’s observation that “to ascribe motives to a judge is to sow the seeds of distrust in the minds of the public about the administration of justice as a whole and nothing is more precarious in its consequences than to prejudice the mind of public against judges of the court who are responsible for implementing the law”.

Bhushan’s army of self-serving defenders never realized that the SC’s wrath was not aroused by a couple of tweets but his long record of obloquy dating back to 2001. The court even then had observed in a case involving him that slandering a judge by imputing personal motives could not be construed as “fair criticism”. Contempt proceedings against him were dropped as they were again in early 2019 at the behest of the liberal Attorney-General (AG) K K Venugopal. Bhushan’s libellous tweets involving courtly hearings on the appointment of the CBI director were on the firing line which the AG later ascribed to a “genuine mistake”.

Ironically enough, the token one-rupee fine which Bhushan got away with was largely due to the stolid defence put up by the AG, the very person who should have got the contemnor the maximum punishment of six months in jail. If Bhushan paid it, it was only to avoid going to jail and having his license to practice suspended for three years. Eighty-nine-year-old Venugopal kept pestering the bench that forgiving Bhushan was the better option than making a martyr of him. Especially since this was not the first time that the court had been verbally attacked, or the integrity of judges questioned. The AG’s stand weakened the court’s resolve to take a hard line. The impression conveyed was that anyone is welcome to repeatedly sully the court’s reputation whose moral duty it is to turn a blind eye lest it be labelled intolerant and lacking the broad shoulders to take the traducement in stride.

None of the specious arguments advanced by the anti-contempt brigade, however, can diminish the merit of the SC’s judgement in the Baradakanta Mishra (1974) case. Here CJI A N Ray had observed that vilifying the judge was tantamount to scandalizing the court. Were the guns trained on the judge or the individual? Was the castigation carried out in good faith? To arrive at a decision, it was necessary to see the surrounding circumstances, the character of the contemnor, his knowledge of the judicial process, and the motive of his bad words.

Bhushan’s most ardent admirers admit he is a motormouth readily inclined to assassinate the character of anyone who comes in his way. He quit the party he co-founded with Arvind Kejriwal after which he lost no chance to disparage him and his former colleagues with the vilest epithets. All this pales into significance before his anti-national views on the hot button issues of the day. He spoke out against the hangings of terrorists Ajmal Kasab and Yakub Memon. He wants Kashmiris to be given the right to self-determination.

A major reason why lawyers like Bhushan thrive is due to the Modi regime’s utter failure to create its own support base in the courtly community. The overwhelming majority is still part of the Congress eco-system. That even the AG canvasses for an anarchist who sees himself as an anti-government crusader is an absurdity to beat all absurdities. The paucity of experienced advocates who believe in its policies and programs compels the government to hang on to the coattails of a nonagenarian liberal.

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Sudhir Kumar Singh
Sudhir Kumar Singh is an independent journalist who has worked in senior editorial positions in the Times Of India, Asian Age, Pioneer, and the Statesman. Also a sometime stage and film actor who has worked with iconic directors like Satyajit Ray and Tapan Sinha.


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