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The independence of the judiciary has collapsed: Prashant Bhushan

Illustration: R. Rajesh  

For more than a century, lawyers have been at the forefront of political and social activism in India. Prashant Bhushan, 64, belongs to an illustrious legal family from Allahabad. One grandfather was a high court judge, while the other, a criminal lawyer, was active in the freedom struggle and a friend of Jawaharlal Nehru. His father Shanti Bhushan represented Raj Narain in the famous electoral malpractices case against Indira Gandhi in 1975 and served as Law Minister in the Morarji Desai cabinet.

Not surprisingly, Bhushan sees himself as carrying forward a legacy where the practice of law is conjoined to public interest. In this freewheeling interview, he speaks candidly on a range of subjects, including the collapse of judicial independence, the Aam Aadmi Party (AAP), and his wish list for judicial reform. Excerpts:

How was your childhood? Where did you grow up?

I was born in Allahabad. I went to a missionary school called St. Joseph’s Jesuit school. I was an ordinary student. It was only after school that I started looking at things that were somewhat different from what young people used to do in those days. My childhood was not remarkable, except that it was in a large household, as my grandparents and several cousins used to stay there from time to time.

How did you end up at IIT Madras?

I thought IIT was where people who liked science went. But my rank couldn’t get me into IIT Delhi or IIT Kanpur, which was where I wanted to go. I ended up going to IIT Madras. But there I realised it was not engineering that interested me but physics. I also became terribly homesick. My father is a very liberal person. He would ideally have wanted me to become a lawyer, but he never pushed me towards that. When I said I was going to IIT, he said fine. And when I said I wanted to quit IIT, he said fine, come back.

You quit engineering to study physics, but you didn’t do physics either.

In the three months before I was to join a B.Sc. or B.A, I got introduced to Bertrand Russell. I read a lot of Russell and became fascinated with philosophy. I decided to do a B.A. with philosophy, economics, and political science. When I say I veered away from the normal stuff after school, it was at this time. I not only read a lot of philosophy, but also thought a lot about philosophical issues. I used to spend hours pacing back and forth on the drive of the house, thinking about some philosophical problem.

How did you get into law?

From 1974 to 1976, I did my BA, and as I was finishing my first year, Mrs. Gandhi’s case [State of Uttar Pradesh vs Raj Narain] started at the Allahabad High Court. I attended the arguments there. Thereafter, when the appeal went to the Supreme Court, I attended the hearings there as well. After that, the habeas corpus case, ADM Jabalpur, took place. My father was the main counsel for the petitioner. So I attended the hearings of that case as well. Then the Kesavananda Bharati review took place around this time, and I had the opportunity to hear Nani Palkhivala. So I got exposed to law at the top level, and found that law was interesting. I ended up writing The Case that Shook India, about Mrs Gandhi’s case. But I was still primarily interested in philosophy.

But you clearly haven’t become a philosopher.

Well, though I wanted to study philosophy, I saw that in India, philosophy departments were in bad shape. I realised there was no point in doing the kind of philosophy that I wanted to do while being in India. If at all, I would have to do a Ph.D. abroad and work there. Because I found law also interesting, I decided to formally enrol in Allahabad University’s L.L.B. programme, but informally I continued to study philosophy and physics. During my L.L.B., my interest in philosophy kept increasing, so I applied to MIT and Princeton. They both gave me admission. I picked Princeton as they offered me a scholarship for a Ph.D. programme in philosophy of science.

How did you get into a Ph.D. program without a master’s degree?

In the U.S., they are quite flexible. I had hardly studied any philosophy formally. Even in the advanced GRE, my score in philosophy was not high. So I asked them after I went there: why did you give me admission? Well, it’s like this. Along with your application, you had to submit two written papers. Fortuitously, by then I had written three serious papers on philosophical issues. One was on free will, another was on two-dimensional time, and the third was on choosing between competing scientific theories. I had sent them the two latter papers, and these, they said, showed them I was capable of original thinking, so they took me. By that time The Case that Shook India had also come out. That too was a factor. So if they feel you can do it, they give you the opportunity.

But you didn’t do it — your Ph.D. in philosophy of science.

I found the kind of philosophy being done there quite meaningless. You are playing lots of intellectual games without making real progress in understanding anything. I also realised that for the kind of work that I wanted to do in the foundations of physics, I would first have to do a Ph.D. in physics. I didn’t feel the drive to spend four years studying physics. So I quit and came back after my master’s. I didn’t write my dissertation.

So, you had the full spectrum of liberal education.

Yes, both science and liberal arts. I was at Princeton for two-and-a-half years. It gave me exposure to a lot of things and different kinds of people — physicists, people doing Ph.Ds in chemistry, mathematicians, philosophers, economists, engineers. I made several good friends there. I came back to India in 1982, gave my final year L.L.B. exams in February 1983, and was enrolled. So that’s my convoluted academic career.

You and your father formed the Committee on Judicial Accountability (CJA) in 1990 to fight corruption in the judiciary. How does the judiciary of 30 years ago compare with what it is today?

General corruption in the Supreme Court may have increased marginally since then.

By ‘corruption’, do you mean financial corruption, involving monetary favours?

No, not just financial. I mean corruption in a wider sense, where decisions are influenced by extraneous considerations — these could be nepotism, political affiliations, or whatever. I don’t think this form of corruption has substantially increased. But what is alarming is that in the last few years, the independence of the judiciary has collapsed.

Today, the major problem is the lack of independence of the Supreme Court, and its willingness to kowtow to the government.

How would you explain this lack of independence?

In my view, there are two reasons. The first is the government’s ability to bring Chief Justices under its control to virtually influence every important decision, because every important case can be sent to a Bench of your choice. And there will always be a few judges like Arun Mishra who can be trusted to decide in your favour. This is precisely what four senior judges said in the unprecedented press conference of January 2018, when they said that the then Chief Justice was misusing his powers as master of roster to allot politically sensitive cases before convenient Benches, which had put democracy in danger.

They specifically alluded to the Judge Loya case being assigned to a then junior judge, Arun Mishra.

Is Arun Mishra the worst Supreme Court judge ever?

In many ways he would be regarded as such, yes. Because he was also brazen. He didn’t care about the impact of his decisions on the poor and marginalised, or about judicial propriety or how his decisions appeared to independent observers.

You spoke of two reasons why judicial independence has collapsed. What’s the second reason?

Look, earlier too, there have been Chief Justices who had vulnerabilities. But previous governments were not so ruthless. The current regime has used state agencies to prepare a dossier on Chief Justices even before they assume office. They have often tried to have Chief Justices-to-be on tenterhooks till assured that they will kowtow to the government.

Who do you think was the last CJI who was absolutely independent in the best tradition of the Supreme Court?

Justice R.M. Lodha. Totally clean, but also strong, unlike some of his successors who were also clean but proved to be weak in front of the executive.

The post of a Supreme Court judge is one of the most powerful in the country. Wouldn’t most post-retirement jobs be a come-down after that? Why would anyone want to compromise their reputation to become the head of some random tribunal?

Because after retiring you have no power whatsoever. No perks either. You don’t get a Lutyens bungalow. To be in a central place in the national capital, to be prominent, to be invited to all these receptions, is a great attraction for these people. And some of these positions are very powerful. The National Company Law Appellate Tribunal (NCLAT) is quite powerful. All the bankruptcy cases come there. There is scope, for someone who is corrupt, to make thousands of crores. The National Green Tribunal (NGT) is critical. So is the National Human Rights Commission (NHRC), which has serious potential to embarrass the government if it is independent. Such posts are not innocuous. Some of them have power, others have perks. The perks are worth at least ₹10 lakh a month. You can enjoy your two free vacations every year. With perks and salaries, one can live like a king.

Are lawyers supposed to be just mercenaries who take up any case that comes to them, or is there also scope for principles? For instance, some people were surprised to see someone like Shyam Divan defending Sudarshan TV in the Supreme Court.

The view that a lawyer’s job is to take up any professional brief that comes to him is not quite correct in cases where the issue involves some public interest consequence. All said and done, lawyers and their faces do play a major role in the outcome of a case. So, if a lawyer chooses to represent Sudarshan TV in a case whose outcome clearly has an important bearing on public interest, and thereby lends his credibility and face value to a cause which will have a detrimental effect on public interest, then he is doing public interest great harm.

We all know that the view that cases are decided irrespective of the lawyer, his competence, his face value or his connections, is just a fairy tale. That is why it is important that a lawyer who is conscientious, and has some regard for public interest, does not take up cases where he is on the wrong side of public interest.

How do you see the future of rights-based civil society groups given the recent amendments to the Foreign Contribution (Regulation) Act, 2010?

Their activities are going to be severely curtailed. Most of them will have to forego foreign funds and survive on domestic funds. Additionally, they must be prepared to suffer victimisation. So, only those that are very robust and willing to face that kind of victimisation will survive. All those working on rights or governance or systemic issues are being targeted. It’s only NGOs involved in soft relief work who are able to function. But even among these, Muslim and Christian organisations doing soft relief work are being targeted.

How do you view the lack of diversity in the judiciary, especially the Supreme Court? Shouldn’t there be some form of reservation?

In the higher judiciary, because there are only a few judges, more important than diversity in terms of caste or region or religion is the awareness and sensitivity of the appointees to the country’s diversity. If you ask retired Chief Justices what criteria they used to select judges, they will say they looked at competence and integrity. But why not other things, such as judicial temperament? Some judges are competent and have integrity but have no judicial temperament whatsoever. They come to the court with a made-up mind, are not prepared to listen, and are often very arrogant and rude — why are these aspects not relevant?

When selecting someone to be a judge, why not look at whether the candidate adheres to the principles of the Constitution? If you look at the index of subscription to the basic structure of the Constitution, you will find that many people being appointed now will fail.

Why don’t you see whether the person who is being appointed is secular or not? Why don’t you see whether they believe in equality? Why don’t you see whether they have any understanding of caste and minorities? These are important values for a judge, so if you were to look for these among candidates, then reservation is not essential in the higher judiciary.

You have said that we should have a transparent legal system where people can fight their own cases, without the need of lawyers. Given the complexity of our laws, isn’t this utopian?

At least for ordinary cases, people should be able to do so. In the U.S., there used to be a programme called People’s Court, in which a retired judge would hear actual cases that were taken out of court and heard on television [based on an agreement of binding arbitration]. Both parties would come without any lawyers. The plaintiff would state his grievance. The defendant would state his defence. The judge would hear those people, give each party the opportunity to question witnesses, and in 20 minutes, he would arrive at his decision. In 1982, my father was recuperating from a bypass surgery, and we watched this programme for 20 days. We must have seen at least 60 cases being decided. We felt that in almost all of them, justice had been done.

So, if you have a competent judge who is intelligent, has common sense, and a sense of fairness, equity and justice, then there is no reason why he can’t hear and decide at least ordinary cases without the help of lawyers. In a country like India, where some people are not even able to articulate themselves, at best you will need some paralegal staff, to help articulate what a person is saying, that’s all.

Weren’t the Gram Nyayalayas supposed to do something like this?

Yes, the Gram Nyayalayas were meant to be such courts where CPC [civil procedure] or CrPC [criminal procedure] need not apply. CPC and CrPC rules are so complex procedurally, even I have not studied them in great detail. Most lawyers are not aware of the details of CPC, CrPC. I can present a case on the basis of first principles, but if I had to go through all the procedures, etc., even I would be stuck.

My father used to say that the entire Evidence Act, which has 500 sections, can be reduced to just one section: any evidence is admissible if it increases or decreases the probability of a relevant fact. That’s it. First, you have to see if a given fact is relevant for deciding the dispute in question, and then you have to see whether this evidence makes it more probable or less probable for that fact to be true. Nothing more is required.

So, Gram Nyayalayas were meant to be those courts. Closer to the people, they were at the sub-tehsil level, and they were supposed to be more accessible to people without lawyers. But unfortunately, they haven’t implemented it. It’s been more than ten years since the Act came.

No Gram Nyayalayas have been set up?

There should have been at least 15,000 by now. But there are hardly any.

Do you regret having been a part of AAP?

There are two different things here: the anti-corruption campaign, and then there is AAP. I don’t regret the anti-corruption campaign — that was needed. I don’t regret my involvement with AAP either, as I felt that we needed a vehicle for alternative politics in India. Unfortunately, AAP did not remain a vehicle for alternative politics. But I do regret not having closely seen how the BJP and the RSS were, in a very organised manner, propping up the anti-corruption campaign in order to discredit the UPA and come to power.

But many people were aware of the RSS’s involvement in the anti-corruption campaign even back then.

People from the RSS or BJP supporting the anti-corruption campaign is one thing. But BJP-RSS taking a conscious decision to prop up the movement to bring down the UPA government — this is something I was not aware of. But now I believe they had taken a very conscious decision at the organisational level. Had I known this then, we would have taken greater care to ensure that the BJP-RSS support groups were kept at bay. The anti-corruption movement facilitating the coming to power of these people has been a disaster for this country.

What about your association with Arvind Kejriwal?

I regret not having seen Arvind Kejriwal’s real character. Had I seen it, we would not have allowed him to take control of the party. If AAP had stuck to its original principles and ideals, it could have been a potent political force in this country. But Arvind reduced it to a petty political party, doing politics the same way as other political parties. To me, his character became apparent slowly, only after the 2014 Lok Sabha elections. Had I been more vigilant, I would have probably seen these traits earlier.

What traits?

One was his dictatorial attitude; he wanted to take decisions on his own, without consulting anybody. Second, he was willing to use any means to achieve his ends.

If you had a wish list of three judicial reforms, what would they be?

First, we need a full-time judicial appointments commission that is independent of the government and independent of the judiciary as well. No judicial appointments should be in the government’s hands. Second, we need a judicial complaints commission. Again, this body should be independent of the government and the judiciary. People should be able to address complaints against judges, and not just for impeachment. The third is to do away with both post-retirement jobs and the power of the Chief Justice as master of the roster.

It should be a collegium of five judges who decide the roster, and within that roster, if there are three Benches dealing with, say, criminal appeals — then every criminal appeal should be randomly assigned between these three Benches. We need this kind of system so that the power of the Chief Justice to assign cases to particular Benches goes away. These in my view are the three most important reforms, but we also need to effectuate the Gram Nyayalayas, as well as have more courts.

In hindsight, given the majoritarian turn in India’s politics, do you think it was a mistake to have campaigned for an unelected body like Jan Lokpal sitting over democratically elected representatives?

We do need unelected bodies to check a majoritarian elected government. Today this majoritarian elected government is riding roughshod over everything. But the only way they can be checked is to have some other body to protect minority rights and the fundamental rights guaranteed by the Constitution — this would normally have to be an unelected body. The judiciary was one such body, the election commission was another such body, the CAG was another such body, NHRC is another such body. Similarly, the Lokpal could be and should be another such body.

In that case, what’s stopping a majoritarian government from doing to the Lokpal what it has done to the other unelected institutions you just mentioned?

The fundamental principle here is that the power of appointment cannot be with the government — for any of these regulatory bodies. This is one reform that needs to be done — with the CAG, the Election Commission, and all the rest. Right now, the power to appoint is with the government. That should be taken away and be vested with a broad-based selection body, which has the leader of the Opposition, the Chief Justice, and so on as members.

How do you see the Supreme Court in 2024?

Difficult to say. Right now things are not looking good. But I hope that with greater public scrutiny of the judiciary, as is happening now, things will improve. Let us hope so.

Which was the last memorable film you saw?

The Social Dilemma, which was very good.

The last book you read?

How Democracies Die by Steven Levitsky and Daniel Ziblatt

Your advice to youngsters contemplating a career in law?

Don’t get into law just as a means to make money. You are warriors of justice. Therefore, think of justice when you take up cases. Spend some of your time engaging with issues of public interest. Lawyers can lead the movement for judicial reform. They can also lead the movement for political reform, as they did during the Independence movement. Lawyers should have their minds and eyes open, see what is happening in society, and do their bit to change things.

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Printable version | Jan 18, 2021 1:59:15 PM | https://www.thehindu.com/society/the-independence-of-the-judiciary-has-collapsed-prashant-bhushan/article33193377.ece

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