Conversation with Prashant Bhushan

Senior Advocate Prashant Bhushan is a noted civil liberties lawyer and is a Member of the Committee of Judicial Accountability and Reform. He talks about his becoming a lawyer and studying Philosophy at Princeton, discusses instances of corruption in the judiciary and changes in the Contempt of Court Act along with Judicial Standards and Accountability Bill.

B&B: Have you personally experienced corruption in the judiciary?

PB: I have not personally experienced corruption. I don’t think I have ever been asked for a bribe by any judge, but since I have been involved in this campaign for Judicial Accountability or the Committee for Judicial Accountability for many years therefore I get a lot of complaints and documents which provide evidence, against judges and a lot of information about corruption or misdemeanor by judges which I have had the opportunity of going through. In that sense I have secondary experience of corruption.

B&B: What are your thoughts on the rule of not having been able to register a FIR against a judge, without the permission of the CJI?

PB: We have found from experience, that this too has had the effect of virtually stifling any criminal investigation of judges, even when there is prima facie evidence of corruption. In the Provident Fund Scam which involved several judges out of whom some have become High Court judges too, the investigating agency had to seek permission from the Chief Justice of India, even though the FIR had been registered by the High Court itself. In the first instance the permission was only granted to send the judge’s written questions which asked them to send back written answers. Even oral interrogation was not permitted. We have ourselves complained against several judges and sought permission to register a FIR against them, but permission was never granted.

B&B: What do you think of the Contempt of Court Act? Any changes needed?

PB: Yes, I think that the definition of criminal contempt needs to be amended and the clause which says scandalizing the court or lowering the authority of the court needs to be deleted from the definition of criminal contempt. Reason being, this clause has been used to deter and stifle public exposure of corruption in the judiciary. It has been used to effectively gag the press against exposing corruption in the judiciary. In any case the reputation of the judiciary or judges does not depend on whether this gag is there or not, reputation depends upon how they are perceived and how their behavior is perceived by the people. If a judge is corrupt, generally the reputation travels.

If a person makes a completely wild allegation against a judge, people can see it’s a wild allegation. Only allegations which are made with evidence are believed by the people or when allegations are made by people who enjoy a great deal of credibility. This is the way it should be. Reputation cannot be protected by preventing people from speaking out openly.

B&B: In what manner does your second affidavit differ from the one you had filed previously?

PB: In my first affidavit I had not given the evidence that I had regarding corruption of some of these Chief Justices and that was because I had thought that it was not necessary, as it would further embarrass the court. But I had mentioned in my view, half of the last 16 -17 Chief Justices were corrupt, I was merely voicing my perception. It was based on some documentary evidence, oral evidence and some circumstantial evidence and for this kind of voicing of one’s perception about the level of corruption in the judiciary or at the apex of the judiciary, one should not come to providing evidence to prove that. But when they passed the order of July, in which they said that contempt is far more serious than even with the likes of Bal Thackeray or Shiv Shanker. Then I thought that maybe they are under the impression that I had made a reckless, baseless and malafide statement and in order to dispel any such impression, I should now provide some of the evidence that I have regarding corruption of former Chief Justices, which I have done in my second affidavit.

B&B: What do you comprehend will be the outcome of your contempt proceedings and at the same time apex court clearing its name?

PB: It’s very difficult to say what the outcome will be and I don’t know how they will proceed with this difficult case. I don’t think they will be able to clear the name of the apex court, in the sense that whatever evidence I have provided against six of these former Chief Justices cannot be erased or wished away. Irrespective of what the apex court does, the fact is that those facts are now in the open and it is for the people to draw their own conclusions by looking at those facts as to whether they regard this evidence as strong and adequate evidence of corruption by those judges.

B&B: Do you think the Judicial Standards and Accountability Bill will make a difference?

PB: I don’t think it will make any substantial difference because the oversight committee is not really going to be able to function credibly as it comprises of mostly sitting judges or sitting Attorney General etc. They will not have the time to go into the allegations or corruption by judges. What we really need is a ful- time body which is independent of both the judiciary and the Government. We can’t have sitting judges or an Attorney General who is not independent from the judiciary or the Government. Therefore we are suggesting an independent and credible full-time body called the National Judicial Commission. We need to change the procedure of removal as currently the procedure goes through impeachment, the Parliament etc. Even in this Judicial Standards and Accountability Bill it will eventually still have to go through the procedure of impeachment. We are suggesting a constitutional amendment to suggest a full-time body which has the disciplinary powers over the judges of the higher judiciary.

This Judicial Accountability Bill also provides that when there is a vexatious complaint, one can be sent to jail. With this kind of a provision, even honest complainants will be afraid to file a complaint because who knows if there are two sitting judges and if the judges happen to be a good friend of the judge concerned against whom the complaint is made, they might persuade the oversight body to hold that this is a vexatious complaint and impose heavy penalty on the complainant.

B&B: Your thoughts on the present Chief Justice of India?

PB: The present CJI is regarded as a very honest and having great financial credibility and I have no reason to think or doubt that perception. However I have mentioned in my affidavit regarding the order that he passed in the ‘Vedanta’ case and I felt and still feel that those orders were unconscionable. I feel he ought to have not dealt with this case, having his shares and the explanation that has been given on his behalf for having dealt with that case is not really proper or correct explanation. Therefore, I have certainly faulted him for that.

B&B: Your thoughts the cash-at-door scam with Justice Nirmal Yadav and on Justice Dinakaran’s probe?

PB: In Justice Nirmal’s case I believe initially the prosecution sanction was denied to the CBI, but finally it was given. But we still don’t know what the current situation is, or what the CBI has said in its report. Unfortunately, these things are shrouded in secrecy and people don’t even come to know what’s really happened. There was a Judges Committee which indicted Nirmal Yadav and it was also said, that the CBI has also indicted her and then some sanction was denied. Nothing is clear as to what had happened. Therefore we have been pleading for more transparency and ideally we need an investigating agency which is not under the Government. The CBI is also under the Government. We need investigating judges who are under the Judicial Performance Commission or Judicial Complaints Commission.

Regarding Justice Dinakaran, the charges against him are so strong and so well documented that by now the Enquiry Committee should have finalized its report and indicted him. Unfortunately, ten months were wasted because the Chairman of that Committee happened to be a close friend of his, who did not even frame charges against him (for ten months). Now he has recused himself and a new Committee has come, let’s hope they will deal with the matter expeditiously.

B&B: What made you decide on taking up law as a career?

PB: That’s a long story. I completed my law and afterwards in-between went to Princeton to do a Ph.D in Philosophy of Science and at that point of time I had every intention of becoming an academic philosopher, but I somehow got disillusioned with Philosophy and the way philosophy was dealt with and the manner in which people were thinking about philosophical issues so I returned to law. I got intense exposure during Mrs. Gandhi’s elections case which was essentially in 1975 and I had heard the arguments in the Allahabad High Court and the Supreme Court. I wrote a book about it which was published in 1977, while I was still a first year student of law. Also, I had attended the hearings in the Habeas Corpus case during the Emergency. I had fairly had an intense exposure to law also because of the fact that my father was a lawyer. I found that law was interesting, but at that point of time I found Philosophy and Physics more interesting and that’s what made me pursue my Ph.D, but came back after two and a half years and joined the profession.

Fairly earlier on also, I had started getting interested in public interest issues and wanted to focus more there, than normal disputes which I didn’t find any interest in and it was quite frustrating as they hardly ever get decided.

B&B: What inspirational lessons have you learned from your father?

PB: Yes, The ability to think from first principles i.e. to analyse every issue and problem from the fundamentals and I think that’s the most important lesson that I have learnt from my father. The other thing about my father which has inspired me is his integrity and his remaining steadfast on his principle. These are the most important lessons and one should stay true to your values and principles, because then you are hardly ever likely to get into trouble.

B&B: What is your next plan of action?

PB: I live from day to day and week to week, but we are setting up an institute in Palampur which is for educating young people on public policies and we hope to educate some of the new generation of young activists, who will spend their time engaging with the Government and with civil society to pansteer public policies of the country which are not towards public interest.

Unfortunately, public policies in India are largely influenced by and run by corporations with commercial vested interests and most of these are not in public interest. One of the reasons why this happens is because those with commercial vested interests, atleast understand the issues and they have a strong motivation to steer those in their own commercial interest. And on the other side there is hardly anybody who understands the issues as well or as deeply and also who is as motivated, purely from public interest. It’s the main reason why public policies are held hostage to commercial vested interests. In order to break that hold, we need to create a cadre of young activists who are motivated only by public interest and who have the energy and time to engage with all stakeholders and the policy issues.