The Supreme Court’s decision to penalise activist-lawyer Prashant Bhushan by a token sum of Re 1 should be viewed in the light of typical dynamics of the judiciary — and not seen as the surrender of the authority before a self-styled anti-establishment force. While the bar and the bench are inter-dependent to make the judiciary function, the former determines the course of cases and the latter is in charge of the outcome. The bench is more powerful also in individual cases where neither party to the dispute is from the legal fraternity where lawyers on both the sides merely represent the parties. However, it has been noticed in the history of the Indian judiciary that when it comes to a tussle between the bar and the bench, the latter tends to buckle down.
Whereas Bhushan is a typical lumpen element, he enjoys the backing of the Supreme Court Bar Association of India that is now dominated by leftists and left-of-centre lawyers. A known anarchist and Narendra Modi-basher, advocate Dushyant Dave stood in support of Bhushan and behind Dave stood the entire bar with leftist leanings. In contrast, the pro-nation lawyers remain a house divided. The role that the union government should have played in this tug of war was altogether absent. In fact, the Modi government’s approach to handling the judiciary leaves a lot to be desired, thanks to its myopic view of the importance of this pillar of democracy.
The government for the past six years has never had a holistic approach towards managing the judiciary. It takes a call on individual matters like, say, the Ram Janmabhoomi-versus-Babri Masjid dispute or conducting the National Eligibility cum Entrance Test (NEET). The last time during the election of the bar association, it could not put up one strong candidate while observing as a mute spectator the squabbling between Vikas Singh, Ajit Sinha, et al, which practically gave Dave a walkover, getting him elected as the president of the bar.
To understand why Attorney-general KK Venugopal pleaded that the apex court forgive Bhushan, one must know another issue in the manner of the Modi government’s judiciary management. Normally, the posts of attorney-general and solicitor-general are considered positions of convenience. The UPA and NDA governments differ in approach to these placements. The INC-led UPA believed that no big name among lawyers was needed to occupy these chairs whereas the BJP-led NDA holds that lawyers who are made A-G and S-G must be big names. Venugopal — of far bigger stature in the profession than GE Vahanvati during the Manmohan Singh rule or Milon K Banerjee during the PV Narasimha Rao reign — is known to speak his mind and not the government’s unless the dispensation believes that in a one-off case the stakes are high.
Earlier, Mukul Rohatgi had nearly completed his term even as his brisk private practice was suffering due to the government appointment. While he decided to resume his practice, Harish Salve, who was approached for the job, said he wouldn’t like to take it up at least for a year. Soli Sorabjee, the A-G in the period 1989-90, was not coming back. When there was no choice left, the government opted for Venugopal, an eminent jurist, took over whereas the government’s choice could have been any average lawyer.
It is important to note here that an A-G gives legal opinions to the government whereas the S-G tells the court where the government stands on a given issue. This is the convention although it is desirable that the A-G, S-G and the government work in tandem.
In this scenario, the majority in the bar, which the government did not care much for, determined the course as well as the outcome of the case of contempt of court by Bhushan.
Nevertheless, notwithstanding the public perception that the bench yielded in this case, it was wise enough in pronouncing the sentence of a Re 1 penalty. The magnitude of the amount is not important. Bhushan paying the penalty is akin to his admission of the guilt. And if he does not pay — he hasn’t so far — he will have to accept a jail term of three months.
Notice here the much-publicised photo-op of a billionaire Bhushan accepting Re 1 from an equally melodramatic Rajeev Dhavan. Ram milāye jodī! The photo frame, which has gone viral on social media, sends across the message that this man is given to theatrics and, even there, he does everything at someone else’s cost. Why does a beneficiary of past, friendly governments of Himachal Pradesh and Uttar Pradesh, who has even otherwise amassed enough wealth, need to borrow Re 1? With this proclivity to go over the top, Bhushan has exposed himself. And the Supreme Court has made its point.