Prashant Bhushan vs. Supreme Court: Contempt of Court or Truth and Democracy?
Sukla Sen
Prashant
Bhushan vs. Supreme Court
Contempt
of Court or Truth and Democracy?
Sukla Sen
Right now, we, Indians, are witnessing an
extraordinary spectacle.
Involving the highest court of the land.
So much so that the venerable New York
Times has characterised it as the Supreme Court being on trial!1
A brief recap of the developments that led to it.
Two recent tweets2, dated June 27th and 29th, by Prashant Bhushan, a
senior Supreme Court advocate - widely acknowledged as a crusader for justice
and fairness in public life, has raised a veritable storm.
On July 9, 2020, a petition3
was filed by Mahek Maheshwari, advocate, for contempt based on the tweet [the
one on June 29th] against the CJI, with an application for exemption from
producing consent of the Attorney General (AG) or the Solicitor General (SG),
sitting on a motorbike.4 The matter was listed on July 22 before
the Bench presided over by Justices Arun Mishra, B R Gavai and Krishna Murari.
The bench in a rather unusual manoeuvre, while considering the complaint before
it took suo motu cognisance of this
tweet and also the earlier one on June 27th - which had talked of the role of
the Supreme Court and its 4 CJIs, in particular, during the last six years in
the destruction of democracy in India, and initiated contempt proceedings
against Bhushan, on that basis – thereby (allegedly) dodging the need for the
consent of the AG.
To cut a long story short, for now, on August 14 morning, after holding a
session of hearing on August 5, the bench pronounced Bhushan guilty after
concluding that he has committed "serious contempt of the Court".5,6
The next hearing date for arguments on the quantum of punishment to be meted
out was fixed on August 20.
On that day, the hearing was concluded, but, the sentence, as anticipated, was
not delivered; instead Bhushan, despite his assertion of disinclination, was
granted time (till August 24th) to recant and in such an event the bench is to
consider it on the following day.7
It is pertinent to note here that during the hearing on 20th, Bhushan had, in
fact, submitted a written statement emphatically affirming his tweets as his
bonafide belief and refusing to seek any mercy or magnanimity from the Court:
My tweets were nothing but a small
attempt to discharge what I considered to be my highest duty at this juncture
in the history of our republic. I did not tweet in a fit of absent-mindedness.
It would be insincere and contemptuous on my part to offer an apology for the
tweets that expressed what was and continues to be my bonafide belief.
Therefore, I can only humbly paraphrase what the father of the nation, Mahatma
Gandhi, had said in his trial: I do not ask for mercy. I do not appeal to
magnanimity. I am here, therefore, to cheerfully submit to any penalty that can
lawfully be inflicted upon me for what the Court has determined to be an
offence, and what appears to me to be the highest duty of a citizen.8
The other noteworthy point is that the AG, who had been summoned,
apparently only as a part of the mandatory provision, had requested the Court
not to punish9, which would be rejected just out of hand, and be abruptly cut
short whenever he tried, only with limited success, to point out that what
Bhushan has told is nothing too unusual.
Regardless, he could manage to interject10:
Five judges of the Supreme Court who have
said that democracy has failed in the Supreme Court – which is what Bhushan
said in his tweets. Secondly, I have nine judges of the Supreme Court saying
that there is corruption in the higher judiciary. Two of them made statements
while they chaired (not clear). Seven of
them said so immediately after their retirement. I have extracts from all of
them. I myself made a speech in 1987 in the Indian Law Institute…
On 24th, Bhushan submitted yet another written affidavit reaffirming his
earlier position, the essence being:
I have made the statements [i.e. the two
subject tweets] bonafide and pleaded truths with full details, which have
not been dealt with by the Court. If I retract a statement before this court
that I otherwise believe to be true or offer an insincere apology, that in my
eyes would amount to the contempt of my conscience and of an institution that I
hold in highest esteem.11
Now, coming to the spectacle, by
charging and convicting Prashant Bhushan - widely known for his brave and
arduous legal fights for justice, of committing "contempt of
court", to be followed by dauntless Bhushan demonstratively claiming the
glorious moral legacy of Gandhi's hugely courageous fight against the mighty
and oppressive British Raj and its legal order, the Supreme Court has, at one
stroke, removed a largely observed long-held taboo - opened up the floodgate of
public review of its own conduct and the place that the judiciary should occupy
in a democratic set-up.
Something unprecedented - going by the comments even in the mainstream print
media, let alone its radical cousins.
Take, for instance, Soli Sorabjee – in a national newspaper.
To be sure, Sorabjee, is no sundry "radical".
(Nor, for that matter, the incumbent AG - K K Venugopal.)
Apart from his other formidable credentials, he had been the Attorney General
also under the Vajpayee government and subsequently, the Vajpayee government -
during its second term, would bestow upon him the Padma Bibhushan.12
This is what he has said:
Mr. Sorabjee said the court could have
ignored the first tweet and the second tweet was merely an opinion.
“People have different beliefs, do you punish people for having some beliefs
which are not to the liking of the Supreme Court,” Mr. Sorabjee asked.
Mr. Sorabjee said truth is an absolute defence against contempt. He said a
person should be given an opportunity to prove his allegations are true.
If Mr. Bhushan is ready to establish the facts of his allegations, then how can
you prevent him... He should not be intimidated into silence. Of course, if his
allegations are baseless, frivolous, then punish him. But don’t punish him for
just saying it,” Mr. Sorabjee said.
...
He also disagreed with the court’s view that the Attorney General of India’s
prior consent was not necessary before initiating suo motu contempt. “The
Attorney General is the first law officer. He should be consulted. They cannot
ignore him. Inherent powers of the court to initiate contempt (under Article
129 of the Constitution) is subject to certain limitations. Inherent power to
do what? This is a misuse of the inherent power [emphasis added],” Mr. Sorabjee
said.13
There are, of course, others, who are far more outspoken.
Just two examples:
I. This case and the judgment is sui
generis (one of a kind) not only because the manner in which the court has,
without adverting to or considering Prashant Bhushan’s detailed
explanation/response , come to the conclusion that he was guilty of having
committed criminal contempt; BUT also because of the manner in which the matter
was initiated, heard and decided all within 30 days and that too by video
hearing as the court has not been holding actual physical hearings.14
That’s Aspi Chinoy, a senior advocate, practising in the Supreme Court and High
Courts.
II. As l’affaire Prashant Bhushan plumbs
the depths of ignominy, the inevitable question is this: Where do the citizens
of this country go from here and how does the legal profession propose to deal
with the salvo fired by the Supreme Court on 14th August 2020, holding Bhushan
guilty of criminal contempt for his two tweets of 27th and 29th June 2020?
...
How a non-maintainable and
incomprehensible contempt petition was illegally
filed, promptly entertained by the
registry, promptly placed before Justice
Mishra on the administrative side,
promptly converted into a sou [read:
suo]
motu contempt petition by him,
and promptly taken up for hearing by
a bench headed by himself, is now
too well-known to be laboured. So too is the animus Justice Mishra bears
against Bhushan, an aspect of the matter elaborately set out in his letter of
protest to the CJI dated 25th July 2020. The letter stated in no uncertain
terms that he had a reasonable apprehension that he would be denied a fair and
impartial hearing by a bench headed by Justice Mishra. He sought the
intervention of the CJI to place the matter before another bench, which did not
contain Justice Mishra. Of course nothing was done in the matter by the CJI,
and so the suo motu contempt was heard and disposed of by the bench headed by
Justice Mishra.
Having followed the matter and written about it in the recent past, I had no
doubt what the result would be—guilty as condemned—the Court being the
prosecutor, judge and executioner. And so it came to pass [all emphases in
original].15
This is yet another senior advocate, Navroz Seervai, who has just not minced his
words.
He has also underlined the fact that the Court in its August 14 judgement
simply refused to take up the detailed affidavit16 filed by Bhushan
to, inter alia, substantiate his two tweets – the first one dealing with the “destruction
of democracy” and the role played by the SC in particular, in great details.
In fact, there has been an avalanche of critical reactions,
including from legal practitioners:
Advocate-on-Record Prashant Bhushan's conviction for contempt of court has
drawn angst, dismay and opposition from retired judges, notably R M Lodha,
Madan B Lokur and Kurian Joseph. Their support, along with that of
"thousands of lawyers”...
That’s how a comment17, in a leading daily, visibly, meant to
be, unfavourable to Bhushan has put it.
Nothing, perhaps, can be any more eloquent.
Of the numerous issues raised, one is why Justice Mishra should not, in the
first place, have had been on a bench - let alone heading it, adjudicating a
complaint against Bhushan.
Here's an extract:
Unfortunately, Justice Mishra’s
independence has been questioned publicly, repeatedly, in certain quarters,
including by some of the senior lawyers. Bhushan himself has criticised him in
the past. In February 2020, Bhushan wrote about the presence of Narendra Modi,
Amit Shah, Rajnath Singh and other top BJP politicians at a family event of
Justice Mishra’s son-in-law. He had tweeted: “Apparently this blue-eyed Joint
Secretary is the son in law of a senior SC judge & the Mundan ceremony of
his daughter was at the residence of that Judge.18
Here's yet another:
[While Prashant Bhushan is known as a
crusader against the current regime] Justice Arun Mishra on the other hand has
very recently and publicly expressed unbridled adulation for the prime
minister. “We thank the versatile genius, who thinks globally and acts locally,
Shri Narendra Modi,” Justice Mishra said while expressing his wholesome
gratitude towards the prime minister for inaugurating the International
Judicial Conference 2020. A few bar associations had passed resolutions
condemning Justice Mishra’s comments, calling them “inappropriate” and
“impinging upon the impartiality of the judiciary”.18
Also relevant in this context is a slightly dated, but still pretty much
useful, brief glimpse into his past records: [Book Extract] Whither judicial aloofness? What to make of Justice Arun
Mishra hearing matters involving his friends in high places.19
Yet another point being made is the haste that the
Court has displayed juxtaposed with its studied reluctance to take up some
vital cases, for months.
Here's a brief list and analysis: SC took
only 24 days to deliver Bhushan verdict – even as Kashmir, CAA matters await
decisions20.
An observation, a part of a brilliant analysis of the whole affair and its
broader implications, which hits the nail right on its head is:
A charge that Mr. Bhushan has attempted
to shake the very foundation of constitutional autocracy in India would, on the
other hand, be credible. This, he has done. And there is every reason and every
urgency for all of us to join him in attacking, through peaceful and legal
means, “the very foundation of constitutional autocracy” in our country.
Autocracy has, after all, been our norm since time immemorial. It is an ancient
tradition for us. Democracy, on the other hand, is a new and nascent
experiment, forced on an unwilling elite by a mass struggle for freedom. The
language and culture of autocracy comes easily to us — a justice system in
which the “king’s law” is conveyed by courts to an obedient people; the law is
enforced with an “iron hand” which, with “firmness”, “strikes” those who “attack” the “majesty” of
courts (words in quotes are from the judgment).21
Conclusion
The
Court had assembled on the 25th.
Advocate Rajiv Dhavan again pleaded that Prashant Bhushan should not be
punished.
The Court kept its verdict reserved. 22
Regardless of what the final judgement turns out
tobe, the way the case has dragged on, since pronouncement of the guilty
verdict, clearly shows up that the Court could not simply ignore the
outpourings of public outrage.
But, that is no guarantee as regards the final outcome, which, in any case, is
due by September 2nd, the day the head of the bench is due to retire.
Even more importantly, the case has
thrown up the salient issue of freedom of expression, in general, and freedom
of legitimate criticism of the Court, based on facts, in particular.
Bhushan has elaborately chronicled, in his detailed affidavit, how democracy
stands increasingly subverted over the last six years and what role the highest
court of the land has played.
The Court’s refusal to deal with this substantive, and core, issue while
dealing with the case is utterly disturbing.
Building up of public awareness appears to be the only remedy.
26 08 2020
Notes and references:
1. 'A Lawyer’s Tweets Put India’s Supreme Court on Trial and Him at Risk of Imprisonment', dtd. August 24 2020, by Karan Deep Singh and Hari Kumar at https://www.nytimes.com/2020/08/24/world/asia/india-lawyer-trial-tweets.html.
2. 'When ‘national honour’ was jeopardised by two 140 character Tweets!', dtd. August 14 2020, at https://freespeechcollective.in/2020/08/14/when-national-honour-was-jeopardised-by-two-140-character-tweets/?fbclid=IwAR3m4QI4qxU0K_aHuxFfrzHLBTb-URQdu51VmrqQ7hPi3oAaOCMV2kSZ0Gk.
3. https://www.livelaw.in/pdf_upload/pdf_upload-378581.pdf.
4. 'Why Supreme Court should act, suo motu, to stop miscarriage of justice in Prashant Bhushan case' by Dushyant Dave, dtd. August 24 2020, at https://indianexpress.com/article/opinion/columns/breach-of-procedure-supreme-court-prashant-bhushan-contempt-case-6567015/?fbclid=IwAR2D4_lu8hZiVZFixHtw3Hf8nsFYsRQsiprA53ALwbxFSiOmLzX4BvcmwV4.
5. '[Breaking] SC Holds Prashant Bhushan Guilty Of Contempt For Tweets Against Judiciary; Will Hear Him On Sentence [Read Judgment]', dtd. August 14 2020, at https://www.livelaw.in/top-stories/sc-holds-prashant-bhushan-guilty-of-contempt-for-tweets-against-judiciary-161391
6. 'If such an attack is not dealt with, it may affect national honour and prestige: Supreme Court in Prashant Bhushan contempt verdict' by Meera Emmanuel, dtd. August 14 2020, at https://www.barandbench.com/news/litigation/if-such-an-attack-is-not-dealt-with-it-may-affect-national-honour-and-prestige-supreme-court-in-prashant-bhushan-contempt-verdict.
8. 'I do not ask for mercy, open criticism of any institution is necessary to safeguard the constitutional order' by Prashant Bhushan, dtd. August 22 2020, at https://indianexpress.com/article/opinion/columns/prashant-bhushan-contempt-case-supreme-court-6564711/?fbclid=IwAR1uTsh9tJQYFi85vyDKM6n2XCkS1ZmbtYaMVk55yDFV1bJVXcKT6auTB6k.
9. 'Attorney General Requests SC To Not Punish Prashant Bhushan In Contempt Case', dtd. August 20 2020, at https://www.livelaw.in/top-stories/attorney-general-requests-sc-to-not-punish-prashant-bhushan-in-contempt-case-161701.
10. 'Here's What the AG Wanted to Say About the Judiciary, Before Justice Arun Mishra Stopped Him' by V. Venkatesan, dtd. August 22 2020, at https://thewire.in/law/attorney-general-kk-venugopal-arun-mishra-prashant-bhushan.
12. 'Soli Sorabjee' at https://en.wikipedia.org/wiki/Soli_Sorabjee.
13. 'Prashant Bhushan contempt case | Supreme Court overreacted, says Soli Sorabjee' by Krishnadas Rajagopal, dtd. August 23 2020, at https://www.thehindu.com/news/national/soli-sorabjee-interview-supreme-court-overreacted-in-prashant-bhushan-contempt-case/article32420327.ece?fbclid=IwAR1DCpCASg8NcbZ9ZI0dc51RUD1jtIDqHz8NjchihSlhPLcCtwLahNwQS7E.
14. 'Supreme Court Should Review Prashant Bhushan Judgment' by Aspi Chinoy, dtd. August 20 2020, at https://www.bloombergquint.com/law-and-policy/supreme-court-should-review-prashant-bhushan-judgment-aspi-chinoy.
15. 'The Judge as the Man of Blood and Iron (With apologies to Otto von Bismarck)' by Navroz Seervai, dtd. August 24 2020, at https://www.barandbench.com/columns/the-judge-as-the-man-of-blood-and-ironwith-apologies-to-otto-von-bismarck.
16. ''Raising Concerns About The Manner In Which 4 CJIs Have Used Or Failed to Use Their Powers Doesn't Amount To Contempt' : Bhushan's Reply In SC', dtd. August 3 2020, at https://www.livelaw.in/top-stories/prashnat-bhushan-reply-contempt-notice-supreme-court-cjis-criticism-160889.
17. 'Minnows get minced, big guns go on trumpeting' by Dhananjay Mahapatra, dtd. August 24 2020, at https://timesofindia.indiatimes.com/india/minnows-get-minced-big-guns-go-on-trumpeting/articleshow/77711431.cms.
18. 'Why Justice Arun Mishra Should Recuse Himself From Contempt Petition Against Bhushan' by Ashish Khetan, dtd. July 23 2020, at https://thewire.in/law/justice-arun-mishra-recusal-contempt-petition-prashant-bhushan.
19. '[Book Extract] Whither judicial aloofness? What to make of Justice Arun Mishra hearing matters involving his friends in high places' by Sourya Majumder and Paranjoy Guha Thakurta, dtd. January 30 2019, at https://theleaflet.in/loose-pages-justice-arun-mishra-paranjoy-guha-thakurta-whither-judicial-aloofness/.
20. 'SC took only 24 days to deliver Bhushan verdict – even as Kashmir, CAA matters await decisions' by Zaid Wahidi, dtd. August 20 2020, at https://scroll.in/article/970929/sc-took-only-24-days-to-deliver-bhushan-verdict-even-as-kashmir-caa-matters-await-decisions?fbclid=IwAR3IvkAVDYexKNjsIWOSl0GBrJx6MpAwcx6PnOYDD2br18PkQfAY5NwNsEA.
21. 'Contempt Unbound: The Supreme Court on Prashant Bhushan' by Prof G Mohan Gopal, dtd. August 23 2020, at https://theleaflet.in/contempt-unbound-the-supreme-court-on-prashant-bhushan/.
22. '2020
contempt case: ‘Painful to read Prashant Bhushan’s statements,’ says Supreme
Court' by Scroll Staff, dtd. August 25 2020, at https://scroll.in/latest/971330/2020-contempt-case-prashant-bhushan-should-be-let-off-with-a-warning-attorney-general-tells-sc.
Dear Comrade,
Please acknowledge.
Best,
Sukla