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.
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.
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.
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.
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.