On 14 August, a three-judge bench of the Supreme Court, headed by the judge Arun Mishra, held the advocate Prashant Bhushan guilty of contempt of court for two tweets he had posted in June with references to the incumbent and previous chief justices of India. The same bench will also hold a hearing on 17 August on whether Bhushan’s comments from eleven years earlier regarding corruption in the judiciary would amount to contempt of court. The case against Bhushan concerns a 2009 interview to the Tehelka magazine in which he said that half of the last sixteen or seventeen chief justices of India were corrupt.
In the following extract from “In Sua Causa”—the cover story of The Caravan’s July 2019 issue on the judiciary and the collegium system—Atul Dev, a staff writer at the publication, describes Bhushan as “a stubborn crusader for judicial probity.” Dev noted in it that after the retirement of the twenty-fifth CJI in October 1994, it became commonplace for CJIs to face corruption allegations.
WITH THE EXCEPTION OF RANGANATH MISRA, the twenty-first CJI, and KN Singh, the twenty-second, no judge to hold the country’s top judicial post had faced a corruption scandal before the institution of the collegium system, in 1993. Since the retirement of MN Venkatachaliah, the twenty-fifth CJI, in October 1994, such scandals have become commonplace.
AM Ahmadi, the twenty-sixth CJI, quashed the charge of culpable homicide against Union Carbide in a case arising from the Bhopal gas disaster. As a gesture of conciliation, he ordered the corporation to set up a hospital in the city. After he retired, Ahmadi was appointed the chairman, for life, of the trust managing the hospital. In 2010, the Supreme Court was petitioned to order an inquiry into Ahmadi’s alleged mismanagement of the hospital, and compel the release of the trust’s financial records. That order never came, but the court accepted Ahmadi’s resignation from his position. It took care to note its appreciation of his good services to the hospital.
MM Punchhi, the twenty-eighth CJI, faced the threat of dismissal before he assumed the office. The Rajya Sabha was presented with a motion for his impeachment on charges of copious wrongdoing. He had gone beyond the provisions of the law to acquit a businessman earlier convicted of breach of trust. His daughters had received plots of land at the discretion of the chief minister of Haryana, the Congress leader Bhajan Lal, on the same day that Punchhi dismissed a case alleging malfeasance by the chief minister. Punchhi had fixed cases, tried to hear matters in which he was an interested party, and more. The motion did not receive the required number of signatures in the Rajya Sabha before Punchhi was sworn in. JS Verma, the twenty-seventh CJI, had recommended his elevation to the president.
AS Anand, the twenty-ninth CJI, was accused of nepotism, and involvement in corrupt real-estate deals. The charges surfaced after his elevation, and he never faced impeachment proceedings.
Soon after Anand became the CJI, the Supreme Court responded to a formal query from the president asking it to clarify the workings of the collegium system. The court’s reply, in what came to be remembered as the Third Judges Case, noted, “We have heard with some dismay the dire apprehensions expressed by some of the counsel appearing before us.” Clearly, the system had not restored confidence in judicial integrity. The court insisted that it did not share the apprehensions, yet added, “We take the optimistic view that successive Chief Justices of India shall henceforth act in accordance with the second Judges case and this opinion.”
Chelameswar, in his NJAC opinion, dwelt upon this last line:
No wonder, gossip and speculations gather momentum and currency in such state of affairs. If a nine-Judge Bench of this Court takes an optimistic view that successive Chief Justices of India shall henceforth act in accordance with the Second Judges case, the only logical inference that can be drawn is that the law laid down by the Second Judges case was not faithfully followed by the successive Chief Justices, if not in all at least in some cases attracting comments. Instead of Ministers, Judges patronised.
YK Sabharwal, the thirty-sixth CJI, passed a series of orders to demolish illegally constructed commercial complexes in Delhi. This caused the value of floor space in legal commercial properties such as shopping malls to shoot up. After Sabharwal’s retirement, it was reported that, at the height of the demolition drive, his sons’ businesses had received millions of rupees in funding from owners of malls in and around the capital. Sabharwal wrote a public reply to dismiss the “reckless insinuation,” and to say that he worried “not as much about my individual pain and agony, but about the adverse impact such unwarranted public verdicts can have on the independence of the judiciary.” The journalists who broke the story were found guilty of contempt by the Delhi High Court. The Supreme Court overruled the verdict a decade later.
KG Balakrishnan, the thirty-seventh CJI, saw his family’s fortunes rise dramatically during his tenure. One of his sons-in-law acquired assets worth over ten crore rupees. Balakrishnan’s brother, an officer of the Kerala High Court who resigned after charges of corruption, came to own a farmhouse in Tamil Nadu. The judge’s nephew started large business ventures. A former member of parliament alleged that Balakrishnan’s son-in-law and brother had struck deals for favourable verdicts and judicial postings. A former judge of the Kerala High Court said he was once asked to be introduced to Balakrishnan’s relatives by a person looking to influence a case in the Supreme Court. A former Supreme Court judge accused Balakrishnan of concealing an attempt by A Raja, the former telecommunications minister, to influence a judge of the Madras High Court. When Balakrishnan retired, in 2010, the Congress-led government made him the chairman of the National Human Rights Commission.
In 2009, the lawyer Prashant Bhushan, a stubborn crusader for judicial probity, told Tehelka magazine that, in his view, half of the last sixteen or seventeen CJIs had been corrupt. He soon faced charges of contempt of court. Hearing the matter, the Supreme Court observed that the present case had more serious ramifications for its credibility than even earlier contempt cases heard against the former law minister P Shiv Shankar and Bal Thackeray. Shiv Shankar, while a cabinet minister in the late 1980s, had said that the Supreme Court was home to “anti-social elements,” including violators of foreign-exchange regulations, “bride burners and a whole horde of reactionaries.” Thackeray, the head of the Shiv Sena, had said that he pissed on the judgements of the courts, and likened judges to plague-ridden rats.
The Supreme Court challenged Bhushan to prove his allegation. He pointed to the many hurdles to investigating judicial conduct, including those created by the court itself, as a reason for the lack of hard evidence. His father, Shanti Bhushan, who served as the law minister right after the Emergency, made himself party to the case too, and submitted a sealed list naming the allegedly tainted CJIs.
The Supreme Court has put the case on the back-burner, but its own image has not improved since. Altamas Kabir, the thirty-ninth CJI, who heard the case against Bhushan, was later accused of engineering his sister’s appointment to the Calcutta High Court, and punishing a judge who had objected to it. JS Khehar, Dipak Misra and Ranjan Gogoi were to come after him.
This is an excerpt from Atul Dev’s “In Sua Causa,” the cover story of The Caravan’s July 2019 issue.