Shanti Bhushan’s Indelible Legacy Will Continue To Inspire Those Who Campaign For Accountability

Shanti Bhushan was born in Bijnor, a district town of Western Uttar Pradesh, on November 11, 1925, Armistice Day. His parents named him Shanti, which means peace in Hindi, because he was born on the day commemorating the end of the First World War. But, as his biography would show, rather than peace in politics or personal life, what he encountered was turbulence, and resistance to justice.

Among the major legal battles which Shanti Bhushan fought as a lawyer was the election petition filed against the then prime minister, 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, and sought Shanti Bhushan’s appearance on his behalf before the Allahabad High Court. In this case, Indira Gandhi had personally appeared before Justice Jagmohan Lal Sinha, who heard the case, as a witness.

On June 12, 1975, Justice Jagmohan Lal Sinha 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. (Justice Sinha, who retired in 1982, passed away on March 20, 2008.) Shanti Bhushan reveals that Justice Sinha did not succumb to the offers of promotion either before or after giving the verdict.

On the day of the judgment, Shanti Bhushan was in Bombay (as Mumbai was then called), and he records in his memoirs, Courting Destiny: A Memoir that had he been present during the pronouncement of the judgment by Justice Sinha, he would have opposed the prayer for a stay which would have been declined and the political history of India might have been different.

The stay application of Indira Gandhi was heard by the vacation judge in the Supreme Court, Justice Krishna Iyer, who stayed the disqualification and permitted her to continue as prime minister even though she was not permitted to exercise her right to vote in Parliament. When the hearing of her appeal started, the bench was presided by the Chief Justice A.N.Ray, and consisted of four other Judges. Of these five, four were those who had held that there was no limitation on Parliament’s power of amending the constitution. Only one among them, Justice H.R.Khanna, was party to the majority judgment in Kesavananda Bharati’s case, which laid down the basic structure doctrine in 1973.

Justice Ray asked Shanti Bhushan what were the basic features of the Constitution which could not be amended. He replied that the power given to Parliament under Article 368 was merely to amend the Constitution, but could not include the power to replace the Constitution. Whenever some provisions of the Constitution which give it a particular identity are sought to be removed, it would become a different Constitution altogether. He explained that if an amendment under Article 368 changed it 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.

Shanti Bhushan’s submission was that a judicial review by courts was an essential part of a democratic constitution. If the power of the court to determine whether the election had been won by a candidate by fair means was taken away, it would inflict a death blow to the very concept of democracy. All the five judges of the bench accepted his contention and unanimously struck down the 39th Amendment to the Constitution, which was the first amendment to be struck down. Even in Kesavananda Bharati’s case, all the impugned amendments had been upheld by the Supreme Court.

However, the same bench upheld the retrospective amendments made to the Representation of People Act and gave the benefit of the Ninth Schedule to that amendment of the election law by holding that the theory of basic structure was only applicable to the amendment of the Constitution and not to an amendment of a parliamentary act even if the same was put in the Ninth Schedule. A few years later, the Supreme Court changed this view and held that if the effect of putting an act in the Ninth Schedule was to adversely alter the basic features of the Constitution it could be struck down on those grounds.

The other case which brought Shanti Bhushan to the limelight was the A.D.M.Jabalpur case during the Emergency. Of the five Judges who heard the case in the Supreme Court, only Justice H.R.Khanna decided it in favour of the detenues, holding that notwithstanding the suspension of Articles 19 and 21, the habeas corpus petitions were still maintainable. The remaining four Judges, Chief Justice A.N.Ray, and Justices M.H.Beg, Y.V.Chandrachud and P.N.Bhagwati held that no habeas corpus petitions were maintainable during an Emergency.

This, however, did not prevent Shanti Bhushan, as the law minister in the Morarji Desai Government in the post-Emergency period, from adhering to the principle of seniority while appointing Y.V.Chandrachud as the Chief Justice of India, despite opposition from the Janata Party leader, Jayaprakash Narayan. As Law Minister, Shanti Bhushan wrote to all the judges of the Supreme Court as well as 18 chief justices of different high courts whether the principle of seniority should be adhered to in the light of the controversy over elevating Chandrachud. The overwhelming response which he received from them was that appointment must be made on the basis of seniority alone.

However, in the later years, Shanti Bhushan became a critic of the ‘seniority alone’ principle to appoint a CJI if there are serious charges of misconduct against senior-most puisne judge of the Supreme Court. The Committee on Judicial Accountability, which he was associated with, drafted an impeachment motion on the basis of seven specific allegations, against Justice M.M.Punchhi, who was to succeed CJI J.S.Verma in 1997. But in view of its failure to get the signatures of 50 Rajya Sabha MPs to support the motion, it failed to see the light of the day, and CJI Verma had no option but to nominate Justice Punchhi as his successor. In August 2017, Shanti Bhushan opposed the elevation of Justice Dipak Misra as the CJI, despite his seniority, in view of what he called his “unsuitability on serious ethical considerations”.

As Law minister, Shanti Bhushan was responsible for the drafting and piloting of the 44th Amendment Act, which undid many of the aberrations introduced by the 42nd Amendment Act, enacted during the Emergency.

Shanti Bhushan, continued to practise in the Supreme Court as a senior advocate after the collapse of the Janata Party government at the Centre. He had been in the forefront of the campaign for judicial accountability.

In the 2001 Parliament attack case, Shanti Bhushan defended one of the accused in the case, Shaukat Guru, 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.

Shanti Bhushan's father, Vishwamitra was an eminent lawyer in the Allahabad High Court. But pedigree alone could not have been behind Shanti Bhushan’s success. Early on, he developed a keen interest in law and reasoning, and surprised many senior advocates, who were on the other side of legal battles, with his analytical skills. As a legal journalist, this writer had often noted elements of simplicity and honesty in his analogies from daily life, which made his submissions comprehensible even to a lay person.

The secret of his success, as he claims in memoirs, is that he considered each disappointment in his career a blessing in disguise. Shanti Bhushan was offered the judgeship at the age of 37. Although he accepted the offer, he could not become a judge because the then Chief Justice of India, P.B. Gajendragadkar, increased the age limit for consideration for the post of a High Court judge to 40. He was offered judgeship twice after he turned 40, but he declined it on principle.

Shanti Bhushan’s many legal battles during his long and illustrious career would doubtless merit another book.