Mr. Prashanth Bhushan Contempt Case – Appeal to Junior Lawyers and Law Students .

Recent controversy relating to conviction of Sri Prashanth Bhushan, Advocate (herein after referred to as the contemnor) for contempt of court has given opportunity to some interested persons to create erroneous impression in the minds of the public and more importantly among law students and Junior Lawyers about the judiciary in the country and in particular the Supreme Court of India. People are led to believe that this judgment of the Supreme Court is a frontal attack on freespeech exercised against judiciary and in particular the Supreme Court or an assault on an independent Bar attempting to prevent it from fearlessly speaking out against wrong doing in the judiciary. It is alleged that, by this judgment, the Supreme Court wants to send a message that the judiciary will not tolerate any criticism, however justified it may be, and that it wants to threaten and warn members of the bar by misusing its power to punish for contempt. Nothing is farther than truth as it will be discussed later.

In their attempt to find fault with the Supreme Court, actions of the contemnor are glorified and he is portrayed as a crusader fighting against corruption and a fearless champion of right causes. Students of law and junior lawyers are led to believe that a lawyer who frequently criticizes judiciary and judges will receive great admiration as a fearless lawyer and gain immense popularity. Several articles and write ups supporting Prashanth Bhushan and critical of judgment of the Supreme Court are thus misleading the law students and junior lawyers, virtually leading them on the wrong and dangerous path which will undoubtedly mar their future career. This article is essentially to prevent the same.

So far as the assertion that the judgment is to threaten the members of the Bar impairing their freedom of speech so that they may not level any criticism against judiciary or the judges is concerned, it may be remembered that the Bar in India is independent and strongenough not to be swayed away by such threats. Experience has shown that the lawyers have never lagged behind nor shirked their responsibility to criticize judges whenever the same was justified and necessary. Such criticisms are frequent occurrences and there have been no instance of any action for contempt. Those supporting the contemnor and criticizing the judgment are not bringing it to the notice of the public that the contemnor is a repeat offender so far as contempt of court is concerned and there are numerous instances in the past when the Supreme Court has passed adverse comments against him. They have also been instances where action was not taken since he withdraw the allegations/tendered apology.

In an article by Sri Namit Sexena, Advocate on Record published in Bar & Bench dated: 4thAugust, 2020 there is a long list of instances where different judges of the Supreme Court including Chief Justice R.M.Lodha, Chief Justice Dipak Misra, Chief Justice Khehar, Chief Justice T.S.Thakur, Justice Dr. DY Chandrachud, Justice Madan Lokur, Justice Kurian Joseph, Justice A.K.Sikri, Justice R.Bhanumathi, Justice Arun Misra, Justice S.K.Kaul, Justice Gavai have passed adverse comments on the Contemnor for his conduct. (For the purpose of substantiating the above statements, the entire article is reproduced hereunder)

Allegations of corruption among judges. In 2009, Bhushan gave an interview to Tehelka magazine and allegedly made serious imputations against former Chief Justice of India SH Kapadia by stating that the judge had heard a matter involving Sterlite despite holding shares in it. In the same interview, Bhushan had claimed that half of India’s last 16 CJIs were corrupt. A contempt petition was preferred by Senior Advocate Harish Salve, who was the amicus curiae in the Sterlite case. The petition was held to be maintainable and is pending before the Court for final adjudication.

Coal Scam. In 2013, the Supreme Court through Justice RM Lodha, had warned Bhushan on his comments on the ongoing Coal Allocation Scam. Taking strong exception to the statements made by Bhushan to the magazine, the bench said,

“We got very disturbed when it was brought to our notice and listed the case for today.”

The Court said that judges hear and decide cases fearlessly and without favour, and that fingers should not be raised questioning their conduct.

“Judges never lag behind in passing order when justice demands. If we cannot act fearlessly, without ill-will and without favour, then who will?”.

The Bench, also comprising Justices Madan B Lokur and Kurian Joseph, however, refused to proceed against Bhushan any further after he apologized for his remarks.

CPIL. In January 2016, a Bench of Chief Justice TS Thakur and Justices AK Sikri and R Banumathi grilled Bhushan on the credentials of his organisation, Centre for Public Interest Litigation (CPIL), which had challenged the allocation of 4G spectrum to Reliance Industries Ltd’s Jio. The Bench questioned Bhushan on whether his list of PILs can be allowed to take the “system for a ride”. The Bench told Bhushan.

“Prashant Bhushan, you have an image of a crusader. But can you become the centre for public interest litigation? Can the system be taken for a ride in such a manner? We cannot allow this. We must be satisfied that you have a committee which scrutinizes the complaints and allows only genuine ones to be converted into public interest litigations.”

The Bench added, “We must have the confidence that when CPIL files a petition, it is not prompted by someone who has a vested interest even though the cause may appear genuine…Why should CPIL be a front for settling corporate rivalry or personal vendetta? CPIL should not become proxy litigant. It should not become an instrument in the hands of commercial players.”

Bhushan said CPIL was now operating from his office though its founder members were Fali S Nariman, Shanti Bhushan, Rajinder Sachar and Anil Divan, and that it has authorized advocate Kamini Jaiswal to file PILs on behalf of the NGO.

To this, the Court said, “If these five eminent persons file an affidavit saying they have examined the contents of the PIL filed by CPIL, then the courts will not waste its time examining the maintainability of the public interest litigation.”

After this incident was reported, Fali Nariman wrote to the Registrar General of the Supreme Court, categorically stating that he had not scrutinized or even seen any PILs filed by CPIL. Nariman thereafter proceeded to resign from CPIL.

Sahara-Birla cases. In 2017, Bhushan, through NGO Common Cause, had accused Prime Minister Narendra Modi of accepting suspicious cash payments in the Sahara-Birla Diaries Case. The Supreme Court dismissed the plea while holding that the material on the basis of which investigation is sought was itself irrelevant to constitute evidence and not admissible in evidence.

In the same case, Bhushan had earlier sought the recusal of Justice JS Khehar. However, he was reprimanded in strong words.

“You are talking about the highest court of the country. Do you think we can succumb to any pressure?” Why should you say all this? it’s very unfair. You appeared twice, thrice before us but you didn’t say anything. Today you are saying things.….If you had any problem you should have pointed out. It is very, very unfair. You are talking about the highest court. You are doubting a Constitutional functionary.”

Chit Fund schemes. Once again, in April 2017, the Court took strong exception to Bhushan questioning its approach regarding PILs and asked him if he wanted a “super agency over and above”. These observations were made during the hearing of a PIL by NGO Humanity Salt Lake, which had sought investigation into banned chit fund schemes. A Bench led by then CJI Khehar said,

“Who are you to ask? If there is something, the parties concerned will approach us or hire you as a counsel. You are a private person who has no authority to ask questions. Whenever there is something substantial, we will pass directions. You point out if a serious fraud has been committed.”

Medical College bribery case. 2017 did not end well with Bhushan, with the Supreme Court imposing a fine of Rs 25 lakhs on Citizens for Judicial Accountability and Reforms (CJAR), which had demanded a probe by a Special Investigation Team (SIT) into the alleged medical college bribery scandal. In the proceedings earlier, Bhushan had walked out of the courtroom alleging that he was not allowed to argue. Reportedly, the Supreme Court, speaking through Chief Justice Dipak Misra, orally observed that “Prashant Bhushan is not worthy of contempt“. The petition was later held to be “…wholly frivolous, a contemptuous, unwarranted, aim[ed] at scandalizing the highest judicial system of the country”.

Judge Loya case. In 2018, while disposing petitions seeking an investigation into death of Judge BH Loya, the Supreme Court slammed the role of Bhushan and CPIL holding that “attempts were made to misrepresent and mislead the court by manufacturing evidence to cast a doubt on the circumstances leading to the death of judge Loya”.

Deploring the role played by Bhushan in the case, Justice DY Chandrachud, who authored the judgment said,

“Prashant Bhushan adopted a dual mantle and went to the length of personally collecting evidence to bolster the case. The petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions.”

The Supreme Court, while strongly condemning Bhushan’s oral request for recusal of Justices Khanwilkar and Chandrachud without any formal application and on the sole reason that they hail from Bombay, concluded,

“The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt…We rest in the hope that the Bar of the nation is resilient to withstand such attempts on the judiciary. The judiciary must continue to perform its duty even if it is not to be palatable to some. The strength of the judicial process lies not in the fear of a coercive law of contempt. The credibility of the judicial process is based on its moral authority. It is with that firm belief that we have not invoked the jurisdiction in contempt.”

Later, while deciding an application filed by Senior Advocate Indira Jaising for expungement of these remarks, the Court held,

“The application proceeds on the basis that the observations which were made in regard to the conduct of the petitioners and intervenors attach to the applicant personally. In paragraphs 76 and 78, this Court has adverted to “the conduct of the petitioners and the intervenors” (emphasis supplied).

If the applicant identifies with the intervenor, that is a matter of perception for counsel…”

CBI Director case. In early 2019, a contempt petition was filed by Attorney General KK Venugopal and the Centre against Bhushan for his alleged criticism of the Court on the appointment of M Nageshwara Rao as interim CBI Director. AG Venugopal later withdrew the contempt proceedings, stating that Bhushan has realised his mistake and that he did not want Bhushan to be punished. Bhushan, however, refused to apologise and the Court has kept the matter alive for the larger issue.

Resignation from CPIL and Common Cause. In April 2019, citing that Prashant Bhushan had appeared for CPIL, Common Cause and Swaraj Abhiyan while being a member of the said organisations, retired Major SK Punia filed a complaint before the Bar Council of Delhi (BCD). Bhushan thereafter resigned from the Governing Councils of these NGOs.

Haren Pandya case. Soon thereafter, the Supreme Court pronounced its judgment in a plea filed by CPIL through Bhushan seeking further investigation or reinvestigation into the murder of former Gujarat Home Minister Haren Pandya. The Bench led by Justice Arun Mishra in its 234 page judgment held that the PIL was filed with an “oblique motive” at the instance of the accused persons. It held,

“In all fairness, such petition ought not to have been filed by CPIL at the instance of accused, it is clearly misused of forum of PIL. Only an application could have been preferred by the accused persons or by the petitioner or any other interested person in the criminal appeals. Even otherwise, we have not found on merits any material or ground worthy to direct further investigation or reinvestigation in the case.”

The Court went on to impose costs of Rs. 50,000 on CPIL, and laid down that a lawyer cannot represent an organization if he is part of its Executive Committee.

COVID-19. Recently, the Supreme Court, speaking through CJI SA Bobde, refused to entertain a petition filed by Bhushan in connection with the decongestion of jails during the Coronavirus outbreak. It asked Bhushan

“Why don’t you understand our point of view on some occasion at least?”

Another bench led by Justices SK Kaul and BR Gavai reacted strongly to Bhushan’s tweets and observed: “Every time there is an order in which you do not get any relief, you insult the institution…you cast aspersions on the judges …you don’t have any respect for constitutional bodies. You don’t have any faith in the judiciary”.

Justice Gavai added,

“If you don’t have faith in this institution, why should we hear you at all?”

An Advocate on Record of the Supreme Court has immense responsibility under the Supreme Court Rules, 2013 and various judgments of the Court. Under the Rules, if the Supreme Court is of the opinion that an AoR has been guilty of misconduct or of conduct unbecoming of an AoR, the Court may make an order removing his name from the register of Advocates on Record either permanently or for such period as the Court may think fit.

Bhushan is currently facing multiple contempt proceedings by the Court itself. He is an accused in an FIR registered in Gujarat u/s 295A/505(1)(b), 34 and 120B IPC and is currently protected by the Supreme Court.

I leave it to reader’s wisdom to decide on correctness of the judiciary’s tryst with Bhushan in the last decade. Till then, fingers crossed!

The present case should not be seen in isolation but has to be considered in the light of the past conduct which unmistakably points to the malicious intention to malign judges whenevertheir judgments are not in favour of the contemnor. Very rarely courts have initiated action for contempt and it is unfair to say that judges are intolerant of any criticism. Mostly, even wholly unjustified criticism is ignored. But where an Advocate continuously makes scandalous allegations and in spite of several warnings and reprimand continuous to denigrate the Supreme Court and the judges, will not the court be justified in taking action? That is what has happened here. The court would have failed in the duty if no action was taken when such persistent and deliberate attempts are made to malign and denigrate the Supreme Court resulting in people to losingfaith in the highest court of the country.

Now coming to the facts of the case, as I pointed out, there are two tweets. Suffice to deal with only one that too very briefly. In the second tweet the contemnor says democracy is destroyed by the Supreme Court in the last six years and four Chief Justice of India are also responsible for this. In justification of the comment, Sri Navroj Seervai, Senior Advocatehas referred to only two instances, one regarding complaint of sexual harassment against Former Chief Justice of India Justice Gogai and the other is the conduct of Former Chief Justice of India Justice Dipak Misra as complained of by four judges in the press conference mostly relating to allotment of work amongst judges. One fails to understand what these allegations have to do with destruction of democracy by the entire Supreme Court. Allegation in the tweet is not against individual judge but on the entire Supreme Court as an institution. It is a scandalous allegation against every judge of the Supreme Court during the last 6 years and that includes four judges who held press conference. Apart from the question of contempt, can it even be considered as a responsible statement of an advocate practicing before Supreme Court and who claims to have lots of love and affection for the Supreme Court?

My appeal to the law students and junior lawyers is to not consider the conduct of contemnor as a model worthy of emulation so far as criticism of the Judiciary and Judges is concerned. They should not be guided by the fact that the contemnor has quoted Mahathma Gandhi in the contempt action initiated by the British against the latter. Those circumstances were entirely different. There is no comparison between the two cases.

B.V.Acharya (Senior Advocate and Former Advocate General, Karnataka)