More than 100 activists, academics and former civil servants have signed a statement expressing solidarity with leading human rights advocate Prashant Bhushan, against whom contempt petitions have been filed in the Supreme Court. The statement says, "Unfortunately, expressing an apprehension that the government might be misleading the apex court is being alleged to be contempt of court."
Signed, among others, by Aruna Roy, Wajahat Habibullah, Medha Patkar, Harsh Mander, Binayak Sen, Prabhat Patnaik, Anjali Bhardwaj, Prakash Singh, Shailesh Gandhi, Nikhil Dey, Syeda Hameed, Sandeep Pandey, Yogendra Yadav, Prafulla Samantara, EAS Sarma, Sucheta Dalal, and Aakar Patel, the statement insists, "We see this as a clear attempt to intimidate and silence one of the leading advocates in the country, who unflinchingly takes up issues of corruption and abuse of power and has relentlessly supported the struggles of the vulnerable and marginalized."
Text of the statement:
We are writing to express our concern and deep anguish at the filing of contempt petitions against well-known human rights advocate Prashant Bhushan. He was appearing in a matter challenging the appointment of the interim director of the Central Bureau of Investigation (CBI) and seeking greater transparency in the process of appointment of the CBI director.In October 2018, the central government had unilaterally, without the approval of the high powered selection committee, appointed Nageshwar Rao as interim CBI director.
This decision was quashed by the Supreme Court in January 2019 on the grounds that it was not made as per the procedure laid down in Delhi Special Police Establishment Act, which mandates that the appointment can only be done on the basis of the recommendations of a high powered selection committee comprising the Prime Minister, Chief Justice of India (or any judge of the SC nominated by him) and the Leader of Opposition (or leader of single largest party in opposition).
Just two days after the judgment, the Department of Personnel and Training (DoPT) issued an order again appointing Nageshwar Rao as interim CBI director. The order stated that this was done “as per the earlier arrangement" and did not, in any manner, indicate that it had the approval of the selection committee.
On January 14, 2019, a letter addressed to the Prime Minister by Mallikarjun Kharge, who is a member of the high powered selection committee, was published by the "Indian Express" and also put in the public domain.
The letter signed by Mallikarjun Kharge explicitly states that:
“9. Finally, we come to the vexing issue of the appointment of an interim director unilaterally by the government. The appointment of an interim director (a post that does not legally exist as per the DSPE Act) has once again been made without consulting the Selection Committee.
"10. The Government seemed to have made up its mind on appointing an Interim director and hence this was never placed before the selection committee in the 10th Jan 2019 meeting. This appointment of an interim director is illegal and against section 4A(1) and 4A(3) of the DSPE Act.”
In a hearing on February 1, 2019 in the Supreme Court, the Attorney General (AG) stated that the selection committee had taken a decision on interim CBI director and handed over minutes of the relevant meetings in a sealed cover to the bench. A copy of the minutes, when sought, was denied to Prashant Bhushan, with the AG claiming that the minutes were confidential.
Subsequent to the hearing, Mallikarjun Kharge confirmed to Prashant Bhushan that, as indicated in his letter, the issue of appointment of the interim CBI director was not discussed in the selection committee. This naturally raised serious doubts about the veracity of the documents presented in a sealed cover by the government to the apex court, and Prashant Bhushan raised this concern in his tweets, which are reproduced below:
“Today in CBI Dir appt case, the government made a startling new claim that Nageswara Rao was selected as the interim director in the HPC meeting on 11th January when they decided to transfer out Alok Verma! This seems to be at variance from LOP Kharge's version. https://www.livelaw.in/top-stories/prashant-bhushan-vs-arun-mishra-j--142574 (sic)”.
“I have just confirmed personally from the Leader of Opposition Mr Kharge that no discussion or decision in HPC meet was taken re appt of Nageswara Rao as interim director CBI. The govt appears to have misled the court and perhaps submitted fabricated minutes of the HPC meeting! (sic)”.
“See the letter of LOP Kharge re the unilateral appointment of Nageswara Rao as interim director CBI by govt, w/o going through HPC of PM, CJI & LOP. Yet govt produced minutes of meeting saying that HPC approved appt. Seems govt gave fabricated minutes to court! Contempt of Court! (a photograph of the letter by Mr. Kharge was included in the tweet) (sic)”.
Subsequently, contempt petitions were filed against Prashant Bhushan alleging that the tweets amount to contempt of court. One of the contempt petitions included the redacted minutes of the meetings of the high powered selection committee, which had been handed over to the Court in a sealed envelope by the AG and denied to Prashant Bhushan on the grounds that they are confidential.
The redacted minutes state that the selection committee, with the dissenting view of Mallikarjun Kharge, decided that the Central government may post a suitable officer to look after the duties of the CBI director till the appointment of a new director of CBI.
If it was possible to make the redacted minutes of the selection committee public, it is inexplicable why they were kept secret earlier. If the minutes had been disclosed or shared with the petitioners, the doubts expressed by Prashant Bhushan in his tweets would never have arisen.
In fact, this is precisely the reason why greater transparency in the appointment process is imperative - undue secrecy erodes public trust and raises suspicion and doubts in the minds of people. Transparency is a pre-requisite to instil public confidence and faith in democratic institutions.
In the given circumstances, it is concerning that an attempt is being made to misconstrue doubts raised about the veracity of material handed over in a sealed cover by the government as contempt of court. Unfortunately, expressing an apprehension that the government might be misleading the apex court is being alleged to be contempt of court.
We see this as a clear attempt to intimidate and silence one of the leading advocates in the country, who unflinchingly takes up issues of corruption and abuse of power and has relentlessly supported the struggles of the vulnerable and marginalized.
We stand in complete solidarity with Prashant Bhushan.
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