#LegalLegends: In Conversation with veteran lawyer Shanti Bhushan [Part I]

To have a conversation with Shanti Bhushan is to flip through the pages of history itself. To say that the nonagenarian has a formidable memory is an understatement; during our conversation, he suggests that I read his biography, but soon, I find that there is no need.

One cannot help but marvel at his storytelling prowess, as he recounts events that took place decades ago like they happened yesterday.

In the first of this two-part interview, the veteran lawyer talks about how he fell in love with the profession, the multiple times he was asked to join the Bench, the Emergency case, and a lot more.

He begins with his first taste of the law.

“My father was a Public Prosecutor in the Allahabad High Court. In 1943, when I was in college, I passed by his office and found lots of juniors and police officers preparing charts. I was curious and asked my father’s clerk what was happening. He said, ‘A question of law under the Code of Criminal Procedure has been referred to a Full Bench of three judges’.

So, a chart was being prepared showing the views of all the high courts in the country on the topic. That was when I first became interested in law.”

“The case was Zamir Qasim v. The Emperor and the question was if there are two distinct offences with which the accused has been charged, and the trial court has convicted him for one offence and acquitted him for the other offence, and the government does not file an appeal against the acquittal, is it open to the High Court in the appeal of the accused to acquit him for the offence for which he was convicted and convict him for the offence of which he was acquitted?”

He remembers an exchange between then Chief Justice Sir Iqbal Ahmad and his father during the case.

“Chief Justice Ahmad said to my father,

‘Mr. Bhushan, why should I apply my mind to this case? There is a difference of opinion among high courts, so I should side with the accused’.

My father replied,

‘Yes, Your Lordship may, but in that case, we will have to file government appeals in a large number of cases’.

To this, Chief Justice Ahmad said,

‘If you are suggesting that we will be flooded with government appeals, then I will have to apply my mind!’

Ultimately, when the judgment was delivered, it was a 3:2 split verdict in favour of the prosecution.

So, I felt that it was quite an intellectual exercise, to interpret the provisions of the Code and come to various conclusions.”

From that point on, he was hooked, and he would look for every opportunity to witness the courts in action.

“When I joined university to do my B.Sc, I used to go to the High Court for two hours every morning. I would have to miss some lectures as a result. I was so fascinated by law that except for the three months before the B.Sc final exam, I went to the High Court every day.

When the results came, and I secured a very high position, my father was insistent on my joining M.Sc in Mathematics. He was against my joining law. He also told me to sit for what was then known as the Indian Civil Services exam. I told him that I wanted to do LL.B. instead, but he was not convinced. My classmate was [former Chief Justice of India] RS Pathak. His case was the opposite. His father, [former Vice-President of India] Gopal Swarup Pathak wanted him to join LL.B., but he didn’t.”

So adamant was his father about his not joining the profession, that he took young Shanti Bhushan to meet legendary jurist and freedom fighter Sir Tej Bahadur Sapru, confident that he would deter the youngster. However, the plan backfired.

“After I was introduced to him, Sir Tej said,

‘Young man, you join LL.B. tomorrow and start attending conferences in my chamber’.”

And so, with the blessing of the foremost leader of the Bar in those days, Bhushan embarked on his journey in the legal profession. About his first senior, he says,

“He was excellent. His system was that he would prepare a case so thoroughly that he would be able recite the facts and arguments orally to his junior, who would take it down in long hand. This would be typed out and kept in the brief, which would only be opened when the case was called up for hearing. In the evenings, he would hold darbars, where lawyers, professors and high court judges used to come.”

He recounts an anecdote from one of these darbars.

“One day, GS Pathak met me at one of the darbars, and asked me what I was doing. When I told him I was doing law, he said,

‘Today I must tell Bhappe (pet name of RS Pathak) that he has to join law’.

So, RS Pathak had to join law by force. He did MA in Political Science and law at the same time. But for that chance meeting between me and his father, he would not have been a lawyer, or a judge, or the Chief Justice of India!”

Bhushan always was a prodigious talent from the get go; this was evident when he was compared with one of the most famous lawyers at the time, CK Daphtary. In his first ever case in the Supreme Court, no less.

He takes us back to 1966, when he was Additional Advocate General for Uttar Pradesh. The case was before a Constitution Bench, and CK Daphtary, who was to appear for the state, sent word at the last moment that he was not well. Though Bhushan had not appeared in the High Court, he was well versed with the case, since he had drafted the statement six months earlier.

He cannot help but make a barb at how things work today, in his opinion.

“At that time, drafting statements used to be taken more seriously than it is today.”

“So, I got word from the state government that I had to argue the case. I reached Delhi in the morning and went to the Supreme Court to tell Daphtary that I was not in a position to start the case that day. He agreed that if the case was called that day, he would start. The case came up on the next day, and I had to start arguments. Daphtary used to come for some time and go away. Back then, final hearings used to take place on all five days, and this hearing went on for three weeks. Justices Subba Rao and Hidayatullah were part of the Bench that was hearing the case.

Later, Daphtary told me that he had met Hidayatullah at a dinner, where the judge told him,

‘Mr. Daphtary, Shanti Bhushan is arguing the case better than you could have!’

He was so kind to tell me that. He also told me that the judges wanted me to come to the Supreme Court more often.”

His performance in the Supreme Court would lead to an offer to join the Bench, not for the first time.

“After this case, Subba Rao rang up the High Court Chief Justice Nasirullah Beg, and asked him to recommend me for judgeship in the High Court. Chief Justice Beg told Subba Rao that I had already declined an offer.”

Bhushan was first offered judgeship when he was 37 years old (on February 15, 1963, apparently). The Chief Justice rang him up (on a Saturday) and asked him to come to his chambers. Bhushan would eventually give his consent to be elevated.

“He then told me that I would lose out financially by accepting judgeship. I replied,

‘I live simply; I don’t drink or smoke. What I have already saved from my practice so far and my investments will be more than Rs. 25 lakh by the time I retire as a judge. What do I need the money for?’

BP Sinha was the Chief Justice of India at that time. That year, twelve judges were to be appointed to the High Court, in three batches of four. I was going to be a part of the last four, and my brother-in-law Satish Chandra was also to be appointed. Sometime later, the Chief Justice rang me and said that though my name had been approved, the CJI felt that it doesn’t look good to appoint two members of the same family. So, he told that my appointment might be withheld for 3-6 months. I accepted that.”

PB Gajendragadkar would replace Sinha as CJI, and with that, came a change in policy.

“Then the High Court Chief Justice again called me and told me that the CJI wants to have a minimum age of 45 for high court judges, but he was willing to make an exception for me, if I reached 40. At that point, I withdrew my consent.”

He would be invited yet again in 1967, but this time, things would get ugly. As a result, he affirmed to stay a lawyer.

“When Hidayatullah was CJI, I received a letter from the High Court Chief Justice asking for my consent once again. At that time, an anonymous pamphlet had been published and sent to ministers and judges of the Supreme Court. It stated that I had paid Rs. 10000 to the High Court Chief Justice MC Desai to get my name recommended for judgeship, and that he had spent that amount on Geishas in Japan. So, in my reply to the Chief Justice, I said that whatever happened thereafter filled me with great anguish and I decided to withdraw my consent.”

Years later, Bhushan would be directly involved in a case that would lead to perhaps the darkest period of independent India’s history, the Emergency. He appeared for Raj Narain, who filed a case against then Prime Minister Indira Gandhi in the Allahabad High Court, accusing her of electoral malpractices.

“CB Gupta, the former Chief Minister, had appointed me as Advocate General for Uttar Pradesh at the age of 43. He rang me up and told me that Raj Narain would be paying a visit and that I should accept the case. Gupta was my political mentor; I regarded his word as a command.

The petition was initially based on the allegation that the ballot papers were chemically treated. I said that this was absurd, and I refused to argue the case on this ground. I told them that I was ready to file something which had serious allegations. So, I completely re-drafted the petition and used points like use of government machinery and misuse of public expenses etc.”

While the case was being heard in the High Court, Gandhi would prefer a stay application in the Supreme Court. Bhushan recounts the hearing, appearing opposite Nani Palkhivala, and before the great Justice Krishna Iyer.

“It was a charged atmosphere, and very crowded. Arguments in the stay application went on for the whole day. Krishna Iyer then gave his judgment, which was neither entirely in our favour, nor in Mrs. Gandhi’s favour. My argument was that how can a Prime Minister, who was found to have spoken lies in court, continue in office? The Congress party could have selected someone else.”

When the High Court judgment finally came out, all hell broke loose. Bhushan remembers where he was on the day of the proclamation.

“Nobody expected it. I was arguing a case in Bombay when Emergency was declared. In fact, the day the Allahabad High Court judgment was announced, I was holding a conference in the Taj Mahal Hotel. My brother, who was in the Railways, called me from Delhi. He told me that I had won the case, and that not only was the election set aside, Mrs. Gandhi had also been disqualified for six years. So, the lawyers and I decided to celebrate and postpone the conference to the next day.

When Emergency was declared, top leaders were arrested, and people expected that I would also be arrested. Anil Diwan came to me in Bombay to take down my particulars for a habeas corpus petition, in case I was detained, but I was not arrested. Everyone I knew was going to jail, even my juniors.”

While his peers were being thrown behind bars with impunity, Bhushan somehow emerged unscathed. When asked why, he says,

“I speculated as to why I was being spared and came to two possible conclusions. One was that our family had been very close to Jawaharlal Nehru; my father had gone to jail with him in 1921. I had campaigned for Jawaharlal with Mrs. Gandhi, in her own car, back in 1957. But after the split in the Congress, I became her opponent.

The second reason could have been that since I was the lawyer in the case, which had garnered international attention, she might have thought if other lawyers were arrested, nobody would know. But if I was arrested, the international community would have said, ‘Look here, she is arresting the lawyer who appeared against her in court’, and her image would have suffered.

But I never came to know the real reason.”

Watch this space for Part II of the interview.