In Bhushan Contempt Hearing, the Unsaid is Finally Said to SC

From the Gogoi sexual harassment case to handling of Kashmir cases, issues normally hushed up are in the spotlight.

From L-R: Prashant Bhushan, Dushyant Dave and Justice Arun Mishra.

(Photo: Aroop Mishra/Shruti Mathur/The Quint)

Over the last few years, there has been a growing realisation that something is amiss with the judiciary of the country. Some of this relates to longstanding problems with the institution and how it operates – the delays or lack of transparency in the appointments process, for instance.

Some of it comes from a greater awareness of how the courts operate, thanks to the advent of live-tweeting of court proceedings as well as legal blogs and websites, which have made the critique of judicial decisions publicly available, rather than be lost in some musty old law journal.

However, even after factoring in both these aspects, there is growing concern over new problems with the functioning of the courts – and the Supreme Court in particular.

These include the assignment of sensitive cases to particular judges, the disregard for habeas corpus petitions, the propriety of judges sitting in their own causes, and the unwillingness to assess the government’s actions in Jammu and Kashmir, to name a few.

While these concerns have been aired from time to time in the media by eminent jurists, even retired Supreme Court justices, it’s not been possible to raise them in court with the judges themselves, what with the danger of being held in contempt, and the inability to tie them to proceedings in the courtroom.

Until now.

On 5 August, during a hearing in the contempt case against Prashant Bhushan for his tweets about the judiciary, ironically, the unsaid was finally said, in open court (such as it is in these times), to a bench of Supreme Court judges. And it wasn’t pretty.

ASSIGNMENT OF CASES TO ‘PREFERRED’ JUDGES

Rewind to 12 January 2018. The four senior most judges of the Supreme Court (after the Chief Justice of India) are seated on the lawns at Justice Jasti Chelameswar’s house.

“It is with no pleasure in our hearts that we are compelled to take this decision to call for a press conference. But sometimes, the administration of the Supreme Court is not in order, and many things which are less than desirable have happened in the last few months,” says Justice Chelameswar, flanked by Justices Kurien Joseph, Ranjan Gogoi, and Madan Lokur.

They release a letter sent by them to then Chief Justice of India, Dipak Misra, in which they highlight their concerns about the way the Supreme Court had been functioning in recent times. Key to this was the following paragraph:

“There have been instances where cases having far-reaching consequences for the Nation have been assigned by the Chief Justices of this Court selectively to the benches “of their preference” without any rational basis for such assignment. This must be guarded against at all costs.” (sic)

The judges don’t specify which cases or which benches they are talking about here. However, when asked by the journalists present (including myself) if one of these was the Judge Loya case, which had just been assigned to be heard by a bench headed by Justice Arun Mishra, Justice Gogoi replied “Yes”.

Cut to 5 August 2020. Justice Arun Mishra, along with Justices BR Gavai and Krishna Murari, is hearing the apex court’s suo motu contempt case against Prashant Bhushan for his tweets on 27 June (about CJI SA Bobde on a motorcycle) and 29 June (where he said the last four CJIs of the country had played a role in the destruction of India’s democracy, which had been taking place over the past six years).

Senior advocate Dushyant Dave has already brought up the January 2018 judges’ press conference once, to point out that former judges have also been criticising the judiciary, so why can’t Bhushan, who also has a right to free speech, and to criticise judges.

However, he has thus far avoided bringing up the question of allocation of cases to certain judges.

Back when the judges’ press conference happened, this had been an issue building up for weeks, following a major controversy over the assignment of cases by CJI Dipak Misra, especially to Justice Arun Mishra. Following the press conference, Justice Mishra was even reported to have broken down at an internal meeting of judges as he felt he was being targeted, and he then recused himself from the Loya matter.

While the concerns over allocation of politically sensitive cases have remained in the two and a half years since, they’ve mostly been relegated to private conversations among the legal fraternity.

One of the most persistent questions asked in these conversations, never articulated in public, has been why Justice Rohinton Nariman has not been on the bench for any politically significant cases, despite him being regarded as one of the finest legal minds at the court.

A couple of hours into his arguments, Dave finally broke the omerta over this issue and asked it openly in court. “Why for example, do only certain judges get politically sensitive matters? Justice Nariman for example – he never gets assigned such matters!”, Live Law reported him as saying.

The judges pointed out that Justice Nariman had been part of Constitution Bench cases (such as triple talaq and the Sabarimala matter) and had heard a case relating to disqualification of MLAs in Manipur (where he only, however, ordered that the Speaker should take action in a particular time).

However, Dave contended that he was referring to politically sensitive matters, not saying that Justice Nariman hadn’t heard any important ones, and said he could list 50 such cases which the judge had not been part of.

Dave did not list his 50 cases finally, but reminded the bench that this had been the key point raised in the judges’ press conference. At this point, Justice Mishra is reported to have laughed about him using this again, while Dave smilingly called it a “trump card”. He then wrapped up his arguments.

THE HANDLING OF THE GOGOI SEXUAL HARASSMENT CASE

The Nariman point was eye-catching given it hadn’t been made publicly before, but the most powerful moment in Dave’s arguments was when he brought up the handling of the sexual harassment allegations against former CJI Ranjan Gogoi.

Dave had been arguing that the institution of the judiciary was not being attacked by Bhushan, he was instead criticising the way judges, especially the last four CJIs had functioned. “No one can claim infallibility, including judges,” he said.

Till this time, Dave had not named any individual judge when explaining Bhushan’s criticism. Justice Mishra then suggested that Dave was basically asking them to ignore whatever Bhushan said because these were all just general statements.

Dave replied that it wouldn’t be good for the institution to venture into this in more detail, as “There are some things which are best not spoken about” (according to Bar and Bench).

And then, he did.

Now there has been no shortage of criticism of the way in which those sexual harassment allegations against CJI Gogoi were handled. Much of that criticism relates to how, on the day the allegations became public (20 April 2019), he set up a special bench of the Supreme Court that included himself, and then proceeded to conduct a hearing where he defended himself and claimed the allegations were part of a “larger conspiracy”.

To make matters worse, he then removed his name from the public records of the hearing and set up a new bench to look into this larger conspiracy. Questions were then raised about the procedure followed by the in-house inquiry set up to probe the allegations, which went on to dismiss them.

Despite this, the woman complainant was reinstated in January 2020, and the criminal cases against her and her family – filed around the time she made her allegations public and mentioned by Gogoi during that unseemly hearing – were quietly withdrawn.

However, it had not been possible to raise these issues in the court itself, whether to CJI Gogoi, or to Justice Mishra (who was assigned to head the bench that probed the allegations of a larger conspiracy, and which last conducted a hearing at the end of April 2019).

But Dave now did, arguing that her reinstatement clearly showed that she’d been speaking the truth. He wryly noted that no contempt case had been brought against the complainant even after the inquiry panel led by Justice Bobde had found that there was no substance to the allegations.

He went on to slam Gogoi’s presence on the bench for that first special hearing, reportedly saying: “What impression does it give? A judge sits on a Saturday in his own cause regarding sexual harassment?” He also noted that the report into the claims of a ‘larger conspiracy’ by retired Supreme Court judge AK Patnaik, ordered by Justice Mishra’s bench, had not been made public despite being submitted back in September 2019.

And it didn’t stop there. He also asked what impression was given when the former CJI had been nominated to become a member of the Rajya Sabha, following the judgments passed by him in the cases relating to Rafale, Ayodhya and CBI Director Alok Verma.

THE COURT GOING MISSING WHEN IT IS NEEDED MOST

Another widespread criticism of the Supreme Court in articles, social media, etc, has been that it has failed to take action when citizens have needed it most, to protect liberty and other fundamental rights, ensure justice and hold the government accountable.

Again, however, it’s been a bit difficult to bring up these issues to the judges themselves, or raise them in court. In fact, when Prashant Bhushan tried in some of the cases relating to the migrant crisis that the Supreme Court dismissed, he was castigated by the court and the government’s lawyers.

Which was why it became interesting that Dave now had a chance once again to air these frustrations – and was entitled to do so, in light of the contempt case.

When explaining the motivation behind Bhushan’s tweets – his “anguish” – Dave pointed to some examples of the same, including:

• The continuing failure of the court to list a petition which asked for the court’s intervention regarding the way in which the Tablighi Jamaat issue was used to communalise the coronavirus pandemic and spread hatred, with people slapped with criminal charges. Dave suggested that the judges could have brought a healing touch to this, directed such complaints to not be registered.
• The court’s failure to take up habeas corpus and bail petitions, many of the former relating to Jammu and Kashmir, as well as how the cases relating to the abrogation of Article 370, have not been listed for months now.

The bench has reserved its verdict in the case now, while rejecting certain procedural objections from Bhushan. He has asked to be allowed to lead further evidence if the court decides to take this further.

At the end of the day, the issues raised by him aren’t going to be adjudicated by the court, they’re only meant to explain why his criticism of the court and the judges is bona fide. However, the fact that they’ve now been raised in a courtroom directly to the judges, the fact these questions, including some which have not been articulated openly before will now be part of the official record, has tremendous significance.

One of the most cliched sayings about transparency and correcting wrongs in public institutions is ‘Sunlight is the best disinfectant’. Cliched though it may be, the fact that a light has been shone on these problems in the Supreme Court, may yet be the first step towards fixing them.