Supreme Court under Scanner: Misuse of Power: Strong Indictment by Soli Sorabjee in Soft Undertone

[Sukla Sen]

I. By charging and convicting Prashant Bhushan - widely known for his brave and arduous legal fights for justice,  of committing "contempt of court" - for two of his tweets, 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 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.

II. Soli Sorabjee, btw, 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; subsequently, the Vajpayee government - during its second term, would bestow upon him Padma Bibhushan.
(Ref.: <https://en.wikipedia.org/wiki/Soli_Sorabjee>.)

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.

(Ref.: <https://www.thehindu.com/news/national/soli-sorabjee-interview-supreme-court-overreacted-in-prashant-bhushan-contempt-case/article32420327.ece?fbclid=IwAR1DCpCASg8NcbZ9ZI0dc51RUD1jtIDqHz8NjchihSlhPLcCtwLahNwQS7E>.)

III. And 'Here's What the AG Wanted to Say About the Judiciary, Before Justice Arun Mishra Stopped Him': <https://thewire.in/law/attorney-general-kk-venugopal-arun-mishra-prashant-bhushan>.

What, however, he could, somehow, manage to:
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…

IV. Here's why Justice Mishra should have not been on a bench adjudicating a complaint against Sr. Adv. Prashant Bhushan: <https://thewire.in/law/justice-arun-mishra-recusal-contempt-petition-prashant-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.”

Here's 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”.

V. Here's 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': <https://theleaflet.in/loose-pages-justice-arun-mishra-paranjoy-guha-thakurta-whither-judicial-aloofness/>.

VI. Here's an interesting fragment from a congratulatory tweet from Devendra Fadnavis, the BJP chief in Maharashtra, to the incumbent CJI:
CJI Sharad Bobde ji is an institution in himself.This family played a very important role during freedom struggle.
Great freedom fighter like Veer Savarkar ji has stayed at his house in Nagpur.
This family can never ever do anything wrong & that is why they honoured Savarkar ji!
(Ref.: <https://twitter.com/Dev_Fadnavis/status/1206508893947318276>.)

VII. Here's a brief list and analysis on the haste that the Court displayed juxtaposed with its studied reluctance to take up some vital cases, for months: 'SC took only 24 days to deliver Bhushan verdict – even as Kashmir, CAA matters await decisions' at <https://scroll.in/article/970929/sc-took-only-24-days-to-deliver-bhushan-verdict-even-as-kashmir-caa-matters-await-decisions?fbclid=IwAR3IvkAVDYexKNjsIWOSl0GBrJx6MpAwcx6PnOYDD2br18PkQfAY5NwNsEA>.

VIII. Two interesting comments from Arun Jaitley, in a not-too-distant past.

AA. "The Indian democracy cannot be a tyranny of the unelected (judges)..."
(Ref: <https://www.deccanherald.com/content/507160/indian-democracy-cannot-tyranny-unelected.html>.)
BB. "There are two kinds of judges - those who know the law and those who know the Law Minister," the BJP leader said over the weekend at a conference organized by the party's legal cell. "We are the only country in the world where judges appoint judges," he said, adding, "Even though there is a retirement age, judges are not willing to retire. "Pre-retirement judgements are influenced by post-retirement jobs."
(Ref.: <https://www.ndtv.com/india-news/judges-verdicts-are-influenced-by-post-retirement-jobs-arun-jaitley-500640>.)

IX. Here's a brilliant scan of the specifics and the broader implications of the contempt case: <https://theleaflet.in/contempt-unbound-the-supreme-court-on-prashant-bhushan/>.  

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Peace Is Doable