Tuesday, 25 January, 2022
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Prashant Bhushan is a selective crusader for democracy, with a cussed streak of intolerance

When it came to undemocratic attacks on AAP govt and Arvind Kejriwal, 'guardian of democracy' Prashant Bhushan mostly stayed silent, or rejoiced. 

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Shanti Bhushan and his son Prashant Bhushan have been plucky crusaders for judicial accountability and transparency. The two have also been the refuge for scores of human rights and environmental activists, representing them pro bono and tirelessly in the higher courts. The Bhushans are also not scared to take a principled stand on unpopular causes such as opposing the death penalty of Ajmal Kasab and Yakub Memon or supporting the right to self-determination of the people of Kashmir. But it’s also important to call them out for their more than occasional defamatory and irresponsible statements and selective targeting of public figures.

While battling for public causes, the Bhushans have developed a cussed streak of intolerance. Not only those who are ideologically opposed to them invite their wrath, but also co-travelers, the ‘liberals’, have been victims of their sweeping and at times baseless allegations. Reputations built after years of hard work have been damaged by the Bhushans in one sweep of an indiscriminate utterance, without substantial evidence.

Also read: Prashant Bhushan must express regret, says AG Venugopal, asks SC to let him go with warning

An endless list of the corrupt

In a 2009 interview, Prashant Bhushan termed eight out of the last 16 Chief Justices of India as corrupt. “In the applicant’s opinion, eight were definitely corrupt, six were definitely honest and about the remaining two, a definite opinion cannot be expressed whether they were honest or corrupt,” Shanti Bhushan gave a sworn statement before the Supreme Court while enclosing a list in a sealed cover identifying the respective eight, six and two chief justices in different categories of honesty.

Later, Prashant Bhushan watered down his allegation against former Chief Justice S.H. Kapadia by clarifying that the use of the word “corruption” against Kapadia was used only in the context of a “conflict of interest” that Kapadia had because he held shares in the mining group Vedanta Sterlite. Bhushan had objected to Justice Kapadia’s inclusion in the forest bench headed by Chief Justice K.G. Balakrishnan hearing a PIL matter relating to a project undertaken by the Vedanta Sterlite Group. Because the latter didn’t recuse himself from the bench, Bhushan termed him “corrupt”. Later Kapadia went onto become the CJI and during his tenure, the top court used its plenary powers to order court-monitored investigations into the 2G spectrum and coal allocations that eventually led to the arrests of ministers and business tycoons and the cancellation of all the concessions and licenses en masse.

The list of people whom Prashant and Shanti Bhushan have termed “corrupt” goes beyond Supreme Court judges. It includes Kapil Sibal, Pranab Mukherjee, Manish Tewari, Ravi Shankar Prasad, Salman Khurshid, almost every major corporate group of the country, colleagues at the bar and journalists in the media—their list of the “corrupt” is long and counting.

Junior Bhushan once called then Prime Minister Manmohan Singh “Shikhandi”, a transgender character from the Hindu epic Mahabharata, who was on the side of the kauravas and used his gender to avoid combat. Against Kapil Sibal, Prashant Bhushan as part of the AAP addressed a press conference levelling grave allegations of corruption. At the time, Sibal was the telecom minister in the UPA-II government and his son Amit Sibal a senior lawyer. Bhushan had also issued two press releases—one in Hindi and another in English—against the Sibals. The Hindi press release was termed “Kapil Sibal Gatha”. It was scandalous in its contents and claimed that Kapil Sibal had favoured a telecom company because his son Amit was its counsel. Again, no credible evidence of a quid pro quo was offered. The charges were atrocious and patently false. Many years later, the Sibals withdrew the defamation case they had filed against Bhushan citing the common values in the battle against anti-democratic forces. Prashant has also accused former AG Vahanvati and current A-G K.K. Venugopal of lying.

Also read: Unity is not conformity — India should know that as Prashant Bhushan is convicted for contempt

Targetting AAP repeatedly

Prashant Bhushan’s curation of lists such as “ten most corrupt ministers”, “hundred most corrupt politicians”, “eight most corrupt chief justices”, and “four chief justices who have destroyed democracy” is deeply problematic. There is no clarity on how he arrives at such precise figures or the yardstick that he uses to measure corruption. These lists are often released without any verifiable evidence.

Between 2015 and 2018, each time an Aam Aadmi Party (AAP) member was booked by the state agencies, or an AAP MLA was arrested, a Delhi government functionary was raided by the CBI or IT department or Delhi Police, Bhushan and Yogendra Yadav would applaud from the sidelines, on TV and social media: ‘Didn’t we tell you they were all corrupt,’ would, in essence, be their stock response. Eventually, the AAP MLAs were acquitted in 99 out of the 130 cases filed against 52 MLAs by the police between 2015 and 2019. 

But not once did the ‘guardians of democracy’ speak against the undemocratic and unconstitutional assault on an elected government in Delhi. When the principal secretary to Delhi Chief Minister Arvind Kejriwal was raided and jailed by the CBI, Prashant Bhushan tweeted: “Kejriwal screaming vendetta merely because his ‘trusted man’ is raided by CBI w/o informing is absurd. Should an accused be warned of a raid? The case against Kejriwal’s ‘trusted’ Principal Secy is substantial. Can’t scream Vendetta merely because an opp politico or his man is raided [sic].” When the IT department raided Chhatarpur MLA Kartar Singh Tanwar’s house in 2015, Bhushan tweeted alluding that Tanwar was corrupt and he was one of the people whose MLA nomination he had opposed.

“Shameless”, “hypocrite”, and “liar” are the words that Bhushan repeatedly and openly used for his former colleague Arvind Kejriwal, who at one point of time was the “most honest person” in Bhushan’s books.

In 2018, when Kejriwal was accused by Delhi Chief Secretary Anshu Prakash of being slapped by AAP MLAs in the CM’s presence and the low-ranking officers of the Delhi Police grilled the Kejriwal for hours, Prashant Bhushan saw nothing wrong in a sitting chief minister being interrogated by the police on a trivial charge. Bhushan instead chose to side with the bureaucrat whom he called a “very respected chief secretary”. He told India Today: “It was firstly improper to call the Chief Secretary at midnight to the residence of the CM for a meeting and secondly, all evidence seems to suggest that he was assaulted in that meeting.” Between 2015 and 2018, Shanti Bhushan repeatedly asked for the imposition of President’s rule in Delhi arguing that the Arvind Kejriwal government was violating the Constitution.

The Bhushans’ tacit support to the misuse of agencies by the Centre against the AAP smacks of double standards.

Perhaps if the Bhushans, in particular, and the ‘liberals’, in general, had more vocally protested against the wrongful arrest of AAP MLAs by the Delhi Police, it would not have become so emboldened and blatant as it has become now when it is going after human rights defenders such as Harsh Mander and Apoorvanand with impunity.

Also read: Prashant Bhushan’s refusal to apologise puts him in the same league as Gandhi and Mandela

A cosy club

The outrage against state oppression cannot be selective. When P. Chidambaram, the former finance minister, was jailed on questionable evidence and seemingly trumped-up charges, no prominent voice from the liberal class took a principled stand. Human rights activist Teesta Setalvad, who has been facing a vicious witch hunt at the hands of the Gujarat government for the past six years, has been mainly leaning on Left-wing political parties for moral support. The mainstream non-BJP politicians and the Delhi intelligentsia has seldom stood with her in solidarity.

When the AAP government’s powers were whittled away illegally by an authoritarian central government, P. Chidambaram, casting away his trenchant political opposition to AAP, represented the Delhi government before the Supreme Court in 2017 and argued against the Centre’s unconstitutional assault on the elected government in Delhi. Senior lawyer Gopal Subramanium fought the Delhi government’s case against the Centre pro bono at a time when most commercially successful lawyers were not willing to touch the AAP with a barge pole. Sibal not only represented the Kejriwal government before the Supreme Court, but he also stood for Right-wing activist Madhu Kishwar in the courts in defence of her civil liberties. But these examples are exceptions.

Most liberals act as a cosy club. If you are not part of this circle (which mostly operates online, on Twitter, YouTube and Facebook, and in private spaces like seminars and symposiums), and you don’t agree with all their views or don’t retweet each other, mutually praise each other in 280 characters and hashtags, then either you are dishonest or compromised or just don’t matter. And since you are not part of this exclusive club, any state action against you—in the form of a raid by the ED or IT department, an arrest by Delhi Police or charges of corruption levelled by the CBI—is justified.

Also read: India turned a blind eye to Justice Karnan, an ‘outsider’. Prashant Bhushan is different

Moving on

Ironically, Bhushan had supported Justice C.S. Karnan’s — a Dalit judge — jail sentence of six months for contempt of the higher courts. Bhushan had tweeted; “Glad SC finally jailed Karnan for gross contempt of court. He made reckless charges on judges &then passed absurd ‘orders’ against SC judges!”. Noted lawyer Fali S. Nariman in his book God Save the Hon’ble Supreme Court has criticised the Supreme Court for convicting and jailing Karnan, terming the seven bench decision as one of the top court’s worst moments and the use of court’s contempt powers against a judge as an unfortunate precedent.

Prashant Bhushan has now made it clear to the Supreme Court that he will not apologise. That’s consistent with his last 30 years of public conduct. He has very rarely apologised for his sweeping remarks. A couple of occasions that one could recall where he publicly apologised are when he tendered an apology to Baba Ramdev for his defamatory tweets and to the Supreme Court in 2013 for questioning the integrity of then Attorney-General G.E. Vahanvati and for calling him a liar.

One could argue that Bhushan’s latest tweets against the Supreme Court and the Chief Justice were coarse and irresponsible, but they certainly didn’t amount to contempt. It would be a travesty of the Supreme Court’s contempt powers if the court jails Bhushan, even if it’s for a day. In the last two weeks, I have argued that Indian democracy and its institutions need more inquiring and invigilation. Even if it appears that sometimes those asking questions have stepped beyond the line of decency.

As the US President James Madison had famously said: “It is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding proper fruits”. Prashant Bhushan has done more good to the public interest through his social action jurisprudence, than occasional harm by making wholesale allegations. The court must recognise that and move on to other pressing matters.

The author is a former journalist and AAP member. He is now a corporate and arbitration lawyer and provides corporate legal services to business groups in Mumbai. Views are personal.

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  1. Was Khaitan instrumental in throwing out Prashant Bhushan and Yogendra Yadav out of AAP? If yes, then his grouse against Prashant Bhushan is understandable !
    At least Bhushan had the gumption to tweet about the photo of CJI Bobde on the bike, and that too, which belongs to the ruling dispensation ! That is how “bridges” are built for post- retirement benefits and , it would not be wrong to say, favourable judgements; at least, that is the least a common man can conjecture in today’s environment of rewards of Rajya Sabha seats, Governorships, Ambassadorships !
    And hence that saying Caeser’s wife should be above suspicion !!
    That is what all the common right thinking citizens expect of the judges of the Apex court.

  2. Author has brought out the selectivity and double standards. Repetitive irresponsible and damning comments ; there appears a streak of frustration. The SC will take its considered and final decision now, after enough chances and opportunities. Murar.

  3. Is the author an advocate for an imposter? Look at some of his assertions:

    ‘… “corruption” against Kapadia was used only in the context of a “conflict of interest” that Kapadia had because he held shares in the mining group Vedanta Sterlite.’;

    ‘In 2018, when Kejriwal was accused by Delhi Chief Secretary Anshu Prakash of being slapped by AAP MLAs in the CM’s presence and the low-ranking officers of the Delhi Police grilled the Kejriwal for hours, Prashant Bhushan saw nothing wrong in a sitting chief minister being interrogated by the police on a trivial charge.’;

    ‘the AAP MLAs were acquitted in 99 out of the 130 cases filed against 52 MLAs by the police between 2015 and 2019’

    Now the questions:

    Isn’t ‘conflict of interest’ reason enough to bar a judge from hearing a case? I understand Bar Council rules bar relations of judges from appearing before them. But a Chief Justice of the Punjab and Haryana HC saw that there were many relations of judges of the court practising in the same court but only avoiding their own relations. It did not require Einstein’s brains to understand that though the Bar Council bar was being followed in letter there was nothing preventing one judge helping out a brother judge’s son appearing before him and likewise his own son appearing before that brother judge being helped out on a quid pro quid basis. So he issued an administrative order that no relations of judges will appear before any of the judges in that court. Outlook magazine had reported that this CJ was transferred within weeks of that order.

    Is physical assault on an individual a trivial charge? And that too when committed by ministers to a subordinate employee?

    So, if in 99 out of 130 cases against 52 MLAs, they have been let off does it mean that they are innocent in all the cases?

    I just brought out the above to highlight the bias/incompetence of the author. Of course that sikhandi reference is also another example but it has been coverd by others elsewhere.

    Now for some more facts from my side:

    1. Contempt of court is anathema in a democracy. Democracy demands a Contempt of Citizen (Prevention of) Act.
    2. Disobedience of court orders, which is catered for as civil contempt, should be covered under existing provisions of law dealing with disobedience of orders of a lawful authority.
    3. As it stands, the court, having taken suo moto cognizance of the tweets to be prosecuted for contempt, is right in convicting Prashant Bhushan.
    4. As per reports, it wanted to give time to Prashant Bhushan to consider apologizing, before deciding on the punishment. This is unwarranted. Apology can only be for errors committed unknowingly or by mistake not for deliberate comments in public domain.
    5. We know that in all disputes before a judge there are two parties and each will have some facts, some laws and some precedence/ case laws to support their stands. Ultimately the judge can as well toss a coin and decide whom to favor. But even there there is an element of fairness. There are worse reasons where the judgments can be as whimsical and wayward as whimsical and wayward can be.
    6. A former CJI had himself commented that 20 percent judges are corrupt. But till date we have not heard of a single judge being punished for corruption.
    7. An apex court bench had observed that there is something rotten in the Allahabad High Court. Again we do not know what action has been taken to clean up.
    8. A high court judge, P D Dinakaran, resigned on the eve of being impeached. But is resignation a punishment for his crime(s)? Why hasn’t he been prosecuted for his crimes?
    9. Another high court judge, Karnan, had made many allegations against his colleagues. Were they investigated? By whom? What was the result? Don’t the citizen, tax payer have a right to know the facts/truth?
    10. We know that high court and supreme court judges can be removed only through impeachment. And there appears to be no laws for any other form of punishment. Even the National Commission to Review the working of the Constitution had only recommended empowering the Chief Justice to withhold work from judges against whom allegations have been made.
    11. But Karnan was sent to 6 months prison for contempt of court. Doesn’t it imply that contempt of court is the greatest crime of this land and that the other safeguards provided to judges wouldn’t save them from prosecution under this law?
    12. Suffice to say that there is a need for a National Judicial Commission for trying and punishing errant judges as per laws applicable to every citizen. And this body/institution should be free from judiciary, except, may be, for a law qualified person to guide the proceedings. The logic is simple. The credibility of the judiciary itself rests on the concept that it is an indifferent and objective third party in the dispute brought before it for adjudication.

  4. Why does “The Print” provide space to politicians in its editorial. Their analysis is so much biased and politically colored, It is totally wastage of time to read their articles. If the same article wd hv been written by even a young intern at ‘The Print’, it wd hv created greater impact.

  5. Communists fought for a long period and they had conviction but unfortunately they lost ground slowly. Upstart AAPs have been benefited disproportionately in the so called war against corruption. Everyone knows how these turncoats and hypocrites hounded out Bhushans .

    • To this the media will come out with the “freedom of speech” and rights under the Constitution.
      The media, some politicians, many activists and all liberals seem to always know “freedom” but are ignorant of responsibilities, especially to the people and to the Nation and of course to the Government(s) – NO I do not mean any specific Government – who seem to be the perpetual enemy…
      A travesty of our times!

  6. Prashant Bhushan’s conscience is obvious – Oppose when people dont obey. Like how he deals with AAP and AK. Contempt of his conscience is no great thing.

  7. Ashish Khetan is even more biased and selective than Bhushan, being an AAP politician. AAP has done everything he accuses Bhushan of and in fact benefited from Bhushan’s wholesale accusations of corruption against its opponents while he was a member. Pot calling the kettle black.

    Ultimately this bunch can make as much noise as they like, in the eyes of the public the Supreme Court has 100 times more credibility than some angry AAP/Congress politicians.

  8. Thank God at least one person standing for democracy in ” largest democracy !” The latest horse trading of MLAs from Arunachal to Karnataka gave us an impression that largest democracy means largest horse trading?!

  9. Ashish, do not place Bhushan on high pestal along with God! He is a man with flush and blood like any other common individuals like you and me. He too may have weakness, but that not make him a lesser crusader against injustice! What he has left out is for you and me to take up and make this country an ideal one!

  10. I respect your thoughts doesn’t mean I like or approve them. The fact of the matter is that it isn’t so easy to say something and take a stand when you are being held guilty by the top most court and trolled ny every other person who knows nothing about law and contempt even right and wrong on the social media. At least he has the balls to do so maybe he is right or he believes that is not wrong but at the same time he has that courtesy to say sorry if he feels he did a mistake like he did last year in K.K Venugopal contempt case but if in this case he is refusing to say sorry maybe he has something which is the basis of his comments. Many Judges, lawyers have been vocal. Just beacuse they haven’t said these exact words as Prashant said doesn’t mean they did not comment on the system , and they are as guilty of contempt as Prashant Bhushan is in this case. Moreover, such an article written by you at such a time is astounding and even if each and every point is factually true and if your inferences are also correct that doesn’t justify in any way the treatment being meted out to Prashant Bhushan and the way he is being tried. Also Late Ram Jethmalani Sir once said that it is the biggest Fellacy that Judges are impartial because they are as human as anybody. However well trained a judge maybe he is not free of errors because “To err is human” and the judges are as human as everybody they are not gods and goddesses. So please try to understand the stand and viewpoint of the person whether you like or hate him/her, maybe could learn something or know that the other person knows and you don’t. Also I would like to end with a thought I had in my that The contempt of the Constitution would be greater that any contempt of any court or any judge. It is the duty of the judges too to save the constitution so that if 5-10 or maybe 20 years later if the next generation looks back in the past and at this judgement they don’t judge the supreme court on the basis of a decision made by a bench of just 3 judges. Maybe at times maintaing one’s own dignity is in one’s own hands.

  11. I can’t understand how any body can have any grouse against a person ,who did not criticize action against AAP govt. In Delhi, he might not have criticized many other related incidences happened with various govts including toppling of elected governments, Inquiries assaults,by various government agencies which are patently false and malicious. In his ttmost duty as Lawyer he mentioned the issues which as an advocate, he experienced and noticed. This particular case pertains to those issues only. Not criticizing each and every wrong does not reflect on morale, principles and stand he has taken elsewhere.

  12. Unfortunately, Neither the author, nor the people in the AAP remember that it was Shanti Bhushan who was the first AAP Donor, who donated 1 Crore to a party that had just started. I guess even the “Voice of the Voiceless” have forgotten gratefulness.

  13. “Cosy club…” Do you think that a section of the media, especially Editors and well known anchors, have also fallen prey to this symptom of “liberal” pandemic?
    Robespierre, Marks, Engels and even MK Gandhi had a circumstance for a radical movement. We can’t re-engineer revolutions. Neither can you revolutionize against non existent issues.
    I really wonder what is Mr. Prashant Bhushan’s grievance in the first place.

  14. This is a most interesting piece on Bhushan by a former colleague . Most of what khetan says in the article has an apparent ring of truth but as khetan himself must have realised , these things are not crimes and even if they were, could not be proven in a court of law . Of all the cases mentioned in the article , Teesta Setalvad’s case seems to be the most instructive . The moral here is , there are real costs to be paid for fighting for what you believe is truth and justice .Apart from the the fact that the idea of truth is not fixed , there is a real danger , your truth might get tinier and tinier directly in inverse proportion to the size of the individual against whom the truth is . This happens to most of us . Then the right approach I believe is to realize the unimportance of all us in the scheme of earthly affairs . The Supreme Court has taken a stand for the truth that is travelling with the tide and it is a strong one at that , the tide that is .

  15. Thanks someone, at least in parts calling Prashant Bhushan by rightful titles. To say that shikhandi fought from Kaurav side is a mistake that deserves a lot more than a slap on the back of the wrist. To continue with petulant behaviour is beyond disgust. I say punish this Shishupal now, that will be like doing God’s job and yes I add: shubasya sheeghram

    • Shikandin fought on the side of the Pandavas. Just like Paris fought on the side of the Trojans. Please do not misrepresent the facts.

  16. Crusaders of lost causes.He may be onlu one among thousands and lacs but he may correct becuse most of us blind to the beaten track. Has the system taken of supposed rot which was pointed by many in the past ,this situation would not have arised. Who is the complainant ? What are his credentials ,bonafieds and anticedents ??? Why SC preferred to carry him on its showlders by taking it suomotto without AGs approval. Even eminent jurist Sri Soli Sobarjee expressed the opinion AGs approval is needed. What is the CORRECT constitutional or other laid down procedure lest this case become a quotable precedence. AG was not allowed to dwell eloborately on the issue. Even Bhushan submission in the form of affidavit was not fully gone through as the SC said the advocate had taken them upto page 40. It amounts to “condemned unheard “. Crux of issue was lost in the melee. Judges raised some issues in the historic and one such in free independent India ,but why that issue was not taken up suomotto by any bench. There should fair ,unbiased and a process of delivery of justice without conflict of interest. Now the actual issue is side lined and focus is on other consequent issue.There are many legal issues to be cleared in the light of this case.

  17. Fully agree with the writer. His integrity in highlighting the double standards of Bhushans and still saying that Supreme Court should leave him is magnanimous. But I feel that Bhushan’s conviction is proper because he is not serving any noble cause by his defamatory tweets – he is just ranting his frustration and intolerance against those who do not agree with his view of the judiciary – and the polity.

  18. To the author of this piece.
    Very well written – except for one point – Shikhandi – fought from the side of the Pandava’s. was stopped because she was a transgender – and was desperate to fight as she had been given a boon by Bhishma – that he would leave his weapons the day – she stepped on the battle field. So if Prashant Bhushan gave that analogy – he clearly dint know what he was talking about. And if the author has used the analogy and then explained who shikhandi was – then the author too doesn’t know. Do correct it. Its the only flaw in an otherwise well written piece. Thank you

    • I guess precisely those who write liberals in quote deserve a read. Today’s so-called flag bearers of “liberalism” are a joke with role models like Mohua Moitras and Owaisis. The better word to use for them is Hypocrites(without quotes). Probably my 90 year old dadi is more liberal than them.

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