Once recognised as an important court of the last resort in the Commonwealth the Supreme Court of India has recently been in the news for all the wrong reasons: Convicting the prominent Indian lawyer Prashant Bhushan of contempt of court for penning two tweets mildly critical of the court that in Canada or the USA would hardly merit a second’s attention.

I write about it because back during the Chief Justiceship of Judge Khehar when I was still writing online columns for the Indian Express I had penned a column about how by nominating the disgraced Hemant Gupta for a state Chief Justiceship, the Chief Justice of India and the Collegium he presided over had brought the judiciary into disrepute!

I had written:

 “The Indian polity is drowning in corruption. Most politicians are corrupt. Quite a number of them are criminals facing serious charges before the courts. Most political parties are guilty of running a significant number of candidates with criminal records and cases hanging over their heads. Most of the civil servants are completely uncivil and corrupt. Many of the cadres of the IPS, IAS, IFS and numerous other federal and state services are busy-- just like the politicians, robbers and thieves--accumulating wealth by hook or by crook. The corruption and its deadly poison of unethicality, amorality and immorality have seeped deep into the vitals of each and every aspect of India's life. This much is incontestable except by the human ostriches with their heads in the murky and corrosive sand dunes of denial.

‘The feudal ethic of loyalty to family continues to reign supreme and suffocate politics. Previously the Nehru-Gandhis were its only major example. One can now add Yadavs of UP and Bihar, Badals of Punjab, several BJP politicians and their scions and numerous others across the country to the list. This will eventually prove deadly for liberal democracy.

“In this chaos of corruption and crime the upper echelons of the Indian judiciary, in particular the Supreme Court of India had stood as a beacon of some hope and integrity. That is why it was absolutely shocking to discover the name of Judge Hemant Gupta in the Collegium's recommended list of the nine new chief justices of the state High Courts. Since 2015 Gupta had been publicly known to have been embroiled in a controversy about calling the Enforcement Directorate investigator assigned to a money laundering case. For some time now he himself has been under investigation by the ED in the same case. According to an ED report, Justice Gupta and his wife have been "identified as associates and beneficiaries in the process of money laundering through structuring of shell companies." His mother's name also figures in the investigation....

“ India and Indians expected different and better from the Collegium headed by none other than the Chief Justice of the Supreme Court of India. The other members of the Collegium are also from the judiciary. That is why it was disturbing to find Gupta's name in the recommended list of nominees for the Chief Justiceships of different states; and that too despite the wide public knowledge and reporting of the money laundering investigation involving him for over a year.

“One is compelled to ask: Is nothing clean in India anymore? Is nothing sacrosanct any longer? Not even the Chief Justiceship of an Indian state? The Collegium's list demands a prompt and thorough investigation --perhaps by three former chief justices of the Supreme Court--as to how Gupta's name crept into the Collegium's list and stayed despite the serious questions raised by the ED regarding his role in the money laundering case. How did the Chief Justice of India and other collegiates miss a matter so public and serious as the money laundering investigation against Gupta? Did they not ask for reports from different agencies on the names before they were placed on the list? Do they ever read the newspapers? Do they ever talk to any others from their fraternity many of whom must have been aware of the facts publicly known about the investigation? Or did they believe rules about ethics apply only to those who appear before them?

“This is a grave matter. The inclusion of Gupta in the list of recommended nominees for a state chief justiceship is a colossal error of judgement on the part of the members of the Collegium. It has brought the nomination process followed by the Collegium and the members of the Collegium itself into total disrepute. To restore the fullest possible confidence in the process of screening and nomination of judges, the whole Collegium, including the Chief Justice of India, must immediately resign--not just from the Collegium but also from their respective judicial positions.

“Indians know that politics and most politicians in India are corrupt. They are also aware that the lower rungs of their judiciary are by and large corrupt. They mustn't allow the upper echelons of India's judiciary to go the way of politics --into the gutter.”

Needless to say the Indian Express rejected the above for publication citing its compulsions under the law of contempt of court. I sought the opinion of the editor of another daily publication and a former Attorney-General of India; both confirmed the fears of the Indian Express regarding being held in contempt for publishing the column. I maintained then and believe now that truth is a complete defence to any allegation of contempt.  

It didn’t  occur to me at the time but upon being turned down by the Indian Express I should have published the piece as written in 2017 on my own blog site; in support of Prashant Bhushan’s correct and praiseworthy stand in the matter I take the opportunity to do so now and publish the words then written!

@ujjaldosanjh