#LegalLegends: In Conversation with former Law Minister Shanti Bhushan [Part II]January 17 2018
In part 2, Shanti Bhushan talks about his stint as Law Minister of India, the state of the Indian judiciary and his political career.
In the aftermath of the Emergency, a change in government took place, and Shanti Bhushan was made Law Minister for the Janata Party government. His foremost goal while serving the post was to ensure that the events of 1975 would never take place again in the country. This, he did by introducing the forty-fourth amendment to the Constitution.
“The main reason why Emergency succeeded was that the Supreme Court took the absurd view that no habeas corpus lay during Emergency, and that Article 19 and 21 stood suspended. Anybody could be arrested, nobody could ask why. The essentials of a democracy were put on hold; if you don’t have these freedoms, it is a dictatorship.
The 44th amendment ensures that such a situation will never happen again. I put in an express provision stating that even during Emergency, Articles 19 and 21 cannot be suspended. Therefore, habeas corpus would always lie, and courts would always have the power to hear them. Secondly, people can always speak and criticize so long as they don’t incite violence.”
More than three decades later, the amendment would give impetus to one of the most prominent political movements in recent times, of which Bhushan played a significant role.
“The Anna Andolan succeeded because of the 44th amendment. If it didn’t exist, the government could have suppressed it by arrests, stifling of freedom of speech etc. That was why we made it clear that the protests would be peaceful.”
Going back to 1977, while serving as Law Minister, Bhushan made it very clear that he would not be a party to political vendetta. But despite his best efforts, the ruling government went ahead with their litigation against Indira Gandhi.
“A Law Minister needs to be so honest, not only monetarily, that he would eschew politics while doing his job, as I did. I am still proud of the way I ran the Ministry.
On October 2, 1977 (a Sunday, he says), Raj Narain told me that he was going to arrest Indira Gandhi the next day. I said, ‘That will be the biggest mistake you will make, because in our country, there has been a very old tradition of forgiveness. Let the law take its course, why should you go out of the way?’
He was supposed to consult the Law Ministry, but knowing my views, he did not send the files to me. The Prime Minister [Morarji Desai] told me later that he had signed off on it, assuming that I was consulted.”
Not one to shy away from his opinion, Bhushan made no bones about his government’s mistake in pursuing the case.
“The order passed by the Magistrate releasing Mrs. Gandhi was perfectly correct. When you are produced within 24 hours before a Magistrate, he has to see the case file, and if he is not satisfied that there is any material, he can dismiss it.
In this case, they did everything backwards. They recorded the statements first, but these were not kept in the case diary. After the evidence convinced them that there was a case, they recorded the FIR. So, the Magistrate directed her release. Though the Cabinet was insistent of filing a revision, I told them that it would not succeed. But to save the prestige of the government, they decided to file it anyway.”
Quite often, his insistence upon calling a spade has landed him in trouble. Having faced charges of criminal contempt himself, he is of the opinion that the law requires a change.
“Scandalisation of courts must not be a ground for contempt. Only violation of orders of the court, that is civil contempt, must remain. If people say things about me, I don’t care. My reputation is my shield. Nobody will take you seriously if you say ‘Shanti Bhushan takes money from the other side’. If you are an honest judge, nobody will believe things that are said against you.
How does the institution suffer if absurd allegations are made against judges? The real idea behind criminal contempt is that there is corruption, and they don’t want it to be exposed. I had filed an affidavit saying that eight out of the last sixteen Chief Justices were corrupt, and I had mentioned their names in a sealed cover. This was something that everyone at the Bar knew.”
And speaking of the judiciary, the veteran lawyer takes a low view of the current scenario. The problem, he says, lies in the fact that not enough youngsters are invited to join the Bench.
“One would have to admit that the standards of the judiciary have been going down. The best people are not getting attracted to the Bench, even though now, better salaries and perks are provided. People are not offered judgeship at the proper time; by the time they are recommended, they have made such a large practice, that it becomes difficult for them to accept it.
If they were offered at a younger age, all of them would have accepted. Today, nobody thinks of appointing people younger than 40-45. Collegium judges think, ‘I was appointed at such and such age, how can a young man be appointed?’”
While criticising the subordinate judiciary [80% of the judges in the Delhi subordinate judiciary are willing to take money in important matters, he says], he does, however, have positive words for some members of the higher judiciary.
“One intelligent judge properly disposes of at least five times the number of cases a mediocre judge can dispose of. You will require fewer judges to decide cases, if they are able. For example, in the Delhi High Court, there is Justice Vibhu Bakhru, who is very good; he should be picked up for the Supreme Court. If young talent is spotted and appointed, things would change dramatically.”
In view of the recent turmoil surrounding the Collegium, and the not-so-recent debate on judicial appointments, Bhushan is in favour of having a National Judicial Appointments Commission, with a few changes to the one that was proposed by the Centre.
“They must reorganize the judiciary and have a full-time National Judicial Commission under which there is a Secretariat to hunt for talent all over India from judicial services and the Bar. Ultimately, the government should not have a major role in appointing judges. That role should be played by members of the Bar and the Bench, because they have knowledge and are not doing politics.
There should neither be a majority of judges, nor a minority. People from the services and the Bar should be allowed to send their suggestions freely. The Secretariat should have officers going all around the country, consulting the Bar and scouting for talent, irrespective of whether they are junior or senior. Find out the most honest, intelligent and efficient people.
For elevation to the Supreme Court, they must quietly consult the members of the High Court Bar. They should be asked their opinion without disclosing their names. If a large number of persons say he is corrupt, why should you elevate him? A few lawyers may have something against the judge, but if it is a majority, then it should be considered.”
Commenting on the Collegium’s decision to publish its deliberations, he says,
“It is a good step. Now, the announcement happens after the names have been finalised and sent to the government. It should happen earlier, when names are being considered tentatively. People may raise objections at this stage; those can be checked.”
From here, the conversation drifts on to his political career. After taking a while to gather his thoughts, the nonagenarian recounts an incident from four decades ago, when he was President of the Congress (O) in Allahabad.
By way of background, he had begun his political endeavours way back in 1957, when he campaigned for Jawaharlal Nehru along with Indira Gandhi. Then, in 1969, when the Congress split, he decided to oppose the Gandhi-led faction. In 1972, he would lead a campaign against the ruling Congress (R) government, which had effected a price rise.
“Mrs. Gandhi had won the election on the slogan ‘Garibi Hatao’, but the price rise was making the poor poorer. So, we informed the Collector and the SP that we would be organizing a protest meeting at the Collectorate. Section 144 [of CrPC] was imposed, though I argued that we were exercising our constitutional right to protest. More than 500 people from different parties had assembled, and were later arrested.
So, I asked the SP which police truck I should sit in. He replied, ‘You sit in my car’, and he took me to the jail. All 500 of us remained in jail for one week, after which the Magistrate came. The trial took place in jail.
He told me that if everyone pleads ‘not guilty’, it will take a long time, and that I should persuade everyone to plead guilty. I said, ‘Ok. I will persuade everyone to plead guilty, except myself. I will plead not guilty and make a long statement, please record it’.”
After recording Bhushan’s statement, the Magistrate decided to convict all protestors.
“He then asked me, ‘What sentence shall I impose? Shall I administer a reprimand?’
I replied, ‘Who are you to reprimand us?’
After that he responded, ‘Everyone is sentenced till the rising of the court, and the court has risen!’”
So impressed was then Chief Minister CB Gupta with Bhushan’s boldness, that he proposed his name for the Working Committee of the party.
“I was elected unanimously. People who had been ministers with Gupta for 10-15 years were not happy with this. Gupta told them, ‘Shanti Bhushan does not need the party, but the party needs him’.”
After a stint as Law Minister for the coalition government that defeated the ruling Congress (R), Bhushan would go into relative obscurity, politically speaking.
More than thirty years later, he would be at the helm of a movement that would capture the imagination of the country. Well, at least Delhi, anyway.
“After the Anna Andolan on corruption, we decided, in this very room, to form the Aam Aadmi Party”, he says proudly.
But his current feelings towards the party which he helped form do not smack of pride. Quite the contrary, in fact.
“It is a great opportunity lost. I donated two crores to the party. Our objective was that whether we win or lose is immaterial. But, we must create an ideal political party; everyone must be totally honest. When we give a ticket to somebody, we must be 100% sure that he will never become corrupt.
The main function of the party was to identify the problems of different sections of society, and to find out the best solution for those problems with the help of experts in that field. All details of donations would be put up on our website. This is what we decided when the party was conceived by us. And if Arvind [Kejriwal] had not destroyed the party, we could have become bigger all over India.”
Despite rueing lost opportunities, despite having seen the good, the bad and the ugly of Indian polity and the legal system, the ninety-two-year-old is still an optimist.
“By and large, the common man is not corrupt. If lakhs and lakhs of people can fight the freedom movement and the Anna Andolan, without thinking of any reward, then this country is in good hands. Every person in society can contribute a little time to making things better. If there is an ideal political party, it will attract good people to help it out, without demanding anything in return.”
He also believes that there is hope for the judiciary, and is full of praise for one judge in particular.
“There are many good people in the judiciary, for instance, Rohinton Nariman. Can anybody raise a single finger against him? Not only is he transparent and honest, he is very able and knowledgeable. This is the kind of people that you need.
What is his motivation? He has earned a lot as a lawyer, so money does not attract him. But he is giving something to society. That should be the motivation behind becoming a judge. What is more important than people’s esteem and respect? That should be enough.”
On the topic of India’s political future, he believes that change is on the horizon.
“My feeling is that in 2019, BJP is going to lose the election.”
Only time will tell whether his vision for the future is as limpid as his prodigious memory.
Read Part I of the interview here.
Justice Vibhu Bakhru – Delhi High Court website
Justice Rohinton Nariman – Supreme Court of India Annual Report
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