The Judiciary’s tryst with Prashant Bhushan: A decade of controversy

Prashant Bhushan, an Advocate-on-Record (AoR) and an ex-politician, is known for filing and appearing in Public Interest Litigations (PILs) before the Supreme Court. In the past, the Supreme Court has acted upon a few relevant issues highlighted by him.

Over the last decade, there has been a shift in the Court’s approach towards Bhushan, and it has made many observations on the AoR's conduct. Most recently, the Court initiated suo motu contempt proceedings against him for issuing two statements on micro-blogging website Twitter.

In the present piece, we go through a few instances from the last decade where the Supreme Court has reprimanded Bhushan.

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 author is an Advocate-on-Record at the Supreme Court.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.