Acclaimed lawyer and Senior Advocate Shanti Bhushan passed away at his home in Delhi at 7PM on 31st January. He was aged 97 years. Shanti Bhushan also served as the Union Law Minister from 1977 to 1979 during the post-emergency era in the Morarji Desai government. During his illustrious career that ran for over six decades, Bhushan was not just a part of but also pivotal to several...
Acclaimed lawyer and Senior Advocate Shanti Bhushan passed away at his home in Delhi at 7PM on 31st January. He was aged 97 years. Shanti Bhushan also served as the Union Law Minister from 1977 to 1979 during the post-emergency era in the Morarji Desai government. During his illustrious career that ran for over six decades, Bhushan was not just a part of but also pivotal to several important cases before the Supreme Court of India. Few of those cases are as follows:
State of Uttar Pradesh vs. Raj Narain 1975 AIR 865
The foremost amongst the major legal battles that Shanti Bhushan fought as a lawyer was the election petition filed against the then Prime Minister, Mrs. Indira Gandhi. The veteran socialist leader, Raj Narain, who lost the Lok Sabha election to her in Rae Bareilly, filed an election petition against her. Shanti Bhushan appeared on his behalf before the Allahabad High Court. In this case, Indira Gandhi had personally appeared before the court as a witness.
On June 12, 1975, the Allahabad High Court not only set aside her election but disqualified her from contesting for six years. The verdict set in motion a series of events, resulting in the imposition of the Emergency on June 26, 1975.
The allegations against Mrs. Gandhi were multifold. She was accused of procuring the services of Yashpal Kapoor, a government gazetted officer; ensuring candidature of a third candidate to fight from the constituency so that there were division of votes; availing services of her constitutional office despite the fact that she was a candidate from the Rae Bareli seat, etc.
The allegations were such that if proven as corrupt practises under the Representation of People's Act, Mrs. Gandhi's election victory could have been cancelled.
When the hearing in the case started, Mrs. Gandhi appointed SC Khare, a senior lawyer to represent her. When the court fixed dates to record Mrs. Gandhi's evidence, Bhushan cross-examined the Prime Minister in open court.
He argued before the Allahabad High Court against SC Khare for over two months. Justice Jagmohan Lal Sinha, who heard the matter, finally gave his verdict against all odds and continuous pressure from the government. He held, "The election of Smt. Indira Nehru Gandhi, Respondent no,1 to the Lok Sabha is declared void."
Mrs. Gandhi imposed Emergency less than two weeks after the pronouncement of the verdict. Bhushan was undoubtedly a major force that compelled her to resort to the extreme step. Her hold on the government and her influence had already taken a hit because of Bhushan's tactical arguments before the Allahabad High Court.
Challenge to the 39th Amendment to the Constitution
The 39th Amendment to the Constitution of India was passed during the Emergency. It inserted Article 329A into the Constitution and immunised the election of the prime minister and president of India, against scrutiny by a court of law. It basically curtailed the court's power of judicial review in matters of election of the Prime Minister and the President of India.
Raj Narain challenged the Amendment before the Supreme Court. Bhushan argued it before a bench of five judges. Four of those judges had, in the minority judgment in the Keshavananda Bharti case, held that there was no limitation on the Parliament’s power to amend the Constitution.
It was a difficult legal battle for Bhushan. Bhushan argued at length on the basic structure doctrine before the bench. He said, "every constitution has some basic features which make it unique…The power given to Parliament under Article 368 was merely to amend the Constitution. The Constitution still had to retain the same identity. It could not include the power to replace the constitution and there was a difference between amendment and replacement."
He argued that if an amendment under Article 368 changed the constitution into a dictatorial constitution, naming the dictator and giving the dictator power to name their successor, it cannot be perceived as an amended Constitution of India, but will have to be regarded as a completely new Constitution.
Finally, Bhushan’s contention was accepted and the five judge bench unanimously struck down the 39th Amendment to the Constitution of India
Parliament Attack Case
In the 2001 Parliament attack case, Bhushan defended one of the accused in the case, Shaukat Hussain, cousin of the co-accused Afzal, who was admittedly a surrendered militant.
Shaukat was convicted of 12 charges both by the special court and the Delhi High Court, and had been sentenced to death. The Supreme Court found that none of the charges were proved against Shaukat by the prosecution, and set aside his conviction and sentence under those charges, and acquitted him.
However, the Supreme court found Shaukat must have known that Afzal intended to wage war against the government of India, and that Shaukat should have informed the police of the fact. By not doing so, he was guilty of an offence under Section 123 Indian Penal Code, which was punishable with a maximum sentence of 10 years.
In Re: Arundhati Roy vs Unknown
The Booker Prize Winner Arundhati Roy was booked for contempt of court after her stringent criticism of the judgment passed by the Supreme Court in the Sardar Sarovar Dam Case in 2002. Shanti Bhushan appearing for Roy argued before the court that a balance needed to be struck between the right to freedom of expression and contempt laws and the court should initiate contempt proceedings only in exceptional cases.
The contempt proceedings against Roy was initiated after it was said that she had staged dharna outside the Supreme Court and had raised slogans against the judiciary and judges who had delivered the judgment in the case.
The Supreme Court of India, however, found Roy guilty of contempt and sentenced her to one day’s ‘symbolic’ imprisonment and a fine. The Court reasoned that freedom of speech and expression is not absolute but subject to restrictions prescribed by law, such as the Contempt of Courts Act which aims to maintain confidence in and uphold the integrity of the judiciary. Further, the Court found that the statements made by Roy were not in good faith and in the public interest and therefore could not be considered fair judicial criticism.
Nahar Singh Yadav and Anr. Vs. Union of India
Shanti Bhushan also appeared for Transparency International in one of the most sensational scandals in India at the beginning of the 21st Century. It was the Provident Fund Scandal Case in 2008.
The scam blew when the chief administrative officer of the Ghaziabad district court and the main accused in the case, Ashutosh Asthana, confessed before a magistrate that around 36 members of the judiciary were either beneficiaries of the diversion of the funds from the district treasury or knew about it. The diversion was happening for at least seven years, he said.
The Allahabad High Court was monitoring the probe. It was alleged that the secretary general of the Supreme Court had put fetters on an independent probe by asking the police investigators to submit to him a copy of the questionnaires sent to the accused. Since this was allegedly done at the instance of the then chief justice of India Justice KG Balakrishnan in his administrative capacity, he had to withdraw from hearing the petitions.
When the matter came up before a bench headed by Justice BN Agrawal, who was the second senior most judge of the top court at the time and later also recused himself from the case, Shanti Bhushan, accused the judiciary of shielding the corrupt by relying on incorrect judgments that prevented the police from registering FIRs against the accused persons who were judges of the High Courts and the Supreme Court.
Later, a bench of Justices Arijit Pasayat, VS Sirpurkar and G S Singhvi ordered for a CBI probe not the multi-crore scam.
Haren Pandya Murder Case
The trial court had convicted 12 persons in June 2007 for the murder of Former Home Minister of Gujarat Haren Pandya, whose dead body was found in the parking lot of Law Garden in Ahmedabad. However, the Gujarat High Court acquitted all of them in 2011, noting that the investigation was "botched" and "misdirected".
Thereafter, appeals were filed by the CBI and the State Police against the acquittal. The CBI took the stand that the killing took place as part of an "international conspiracy" executed to "spread terror amongst Hindus" to avenge the anti-Muslim Gujarat riots of 2002.
Bhushan, through his NGO CPIL, filed a plea seeking for a re-investigation into the death of Pandya. He argued the plea relying upon the statement of Azam Khan, a co-accused in the case, who had said that he was given a contract to kill Pandya by the then DG of the State Police and IPS Officer G.D. Vanjara.
Bhushan had placed several other materials on record too and had argued that it was a fit case where further investigation should be ordered. He had also relied upon the statement of the father and the wife of the deceased.
The top court, while dismissing the plea, held that the prosecution case had been proven by forensic evidence and the statement of Khan could not be relied upon as he had opened up only 15 years later. It is curious to note that the High Court and the Supreme Court had formed extremely divergent opinions about the CBI investigation from the same set of materials.
While on one hand the HC bench of Justices D S Waghela and Upadhyaya had termed the investigation headed by the present NIA chief Y C Modi totally "botched up", the Supreme Court on the other hand totally overturned this view. The SC bench of Justices Arun Mishra and Vineet Saran said :
"There is voluminous evidence discussed in criminal appeals decided today…with respect to the complicity of the accused persons in the offence…it cannot be said that investigation was unfair, lopsided, botched up or misdirected in any manner whatsoever, as had been observed by the High Court in the judgment which we have set aside."
Justice Arun Mishra's bench further imposed a fine of 50,000 on Campaign for Judicial Accountability and Reforms, an organisation for whom Bhushan was appearing in the case.
Union of India vs. Moolchand Khairati Ram trust
Bhushan was also a part of the case in which the top court had passed directions to Private Charitable Hospitals to follow the policy of providing free treatment to persons belonging to economically weaker sections.
In this case, the Government of NCT of Delhi by a circular had intimated hospitals to treat those belonging to the weaker sections of society for free. The Land & Development Officer (L&DO) had also passed an order asking the hospitals who had been allotted land by L&DO to strictly follow policy of providing free treatment to economically weaker sections.
The hospitals challenged the conditions imposed by the Government of NCT of Delhi and L&DO. The top court held that the "land was obtained by the respondent hospitals for charitable purpose at concessional rates. When the Government land is allotted, the hospitals owe a duty to act in public interest. It is obligation of State as a welfare state to ensure basic necessities food, nutrition, medical assistance etc. Right to life u/ Art. 21 includes right to health and thus also includes right of patients to be treated with dignity; u/Art. 47 State has to make constant endeavour to improve public health. It is also one of the fundamental duties enshrined u/Art. 51A(h) to develop scientific temper, humanism and the spirit of inquiry and reform."
The judgment further stated, "Right to health is provided in Art. 25 of Universal Declaration of Human Rights. Charitable Endowments Act, 1890 makes it clear that running of hospitals is regarded as charitable activity. When the Government Land is obtained for charitable purpose, the Government is within its power to impose obligation of free treatment to economically weaker sections. On refusal to comply or on violation of the obligation, it is open to the lessor to terminate the lease – Imposition of condition of free treatment to economically weaker section does not tantamount to a restriction imposed within purview of Art. 19(6) on the right enshrined u/Art. 19(1)(g)."
Campaign For Judicial Accountability and Reforms
In 1980, Bhushan had founded the famous NGO 'Centre for Public Interest Litigation' (CPIL), together with the likes of with the likes of VM Tarkunde, Fali Nariman and Anil Divan. CPIL has filed several important PILs in the Supreme Court. It has been instrumental in conducting several successful PIL's such as the one that led to the cancellation of 2G spectrum licences and annulment of appointment of PJ Thomas as the central vigilance commissioner.
Bhushan along with his son Prashant Bhushan, also a lawyer-activist, started the 'Campaign for Judicial Accountability and Judicial Reform (CJAR)' pressing for judicial accountability. CJAR has also fought several legal battles demanding transparency in judicial appointments, a suitable mechanism to probe judges and declaration of their assets in the public domain.
In 2018, a Public Interest Litigation filed by CJAR was relating to the prayer seeking constitution of an SIT headed by a retired Chief Justice of India to investigate into the matter of alleged conspiracy and payment of bribes for procuring favourable orders in a matter pending before Supreme Court. The petition was dismissed by the Supreme Court with an exemplary cost of Rs 25 lakhs.
Contempt Case
In 2009, when Prashant Bhushan had told the Tehelka Magazine in an interview that half of the former 16 Chief Justices of India were corrupt, he was charged with contempt.
When the contempt proceedings began before the Supreme Court, Shanti Bhushan appeared before the court in a sealed cover. He said that the sealed cover contained evidence of corruption against the judges in question on whom the allegations were made.
When Shanti Bhushan was asked to tender an apology by the bench during one of the hearings, he said, "The question of apology does not arise. I am prepared to go to jail... I am of the firm belief that there is lot of corruption in the judiciary."
He also went on to say that he would, "consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary." Despite the contempt case getting closed last year, no one knows what was inside the sealed cover that Shanti Bhushan had submitted to the court back in 2010 as it was never opened.
As part of his efforts to bring in judicial reforms in the country, Bhushan also moved the Supreme Court seeking regulation of powers of the CJI in constituting benches and allocating cases. He contended that the concentration of absolute powers in the CJI with regard to the determination of roster was unconstitutional. Therefore, the petition sought a declaration that roster should be decided not by CJI alone, but by a collegium of five senior judges. However, the top court dismissed his plea reaffirming the superiority of the CJI as the 'Master of the Roster'.