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Mainstream, VOL LVIII No 37, New Delhi, August 29, 2020

Prashant Bhushan vs. Supreme Court - Contempt of Court or Truth and Democracy? | Sukla Sen

Friday 28 August 2020

by 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 tweets [2], 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 petition [3] 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 punish [9], 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 interject [10]:

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 [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 affidavit [16] 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 comment [17], 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”. [19]

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. [20]

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 decisions [21].

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). [22]

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. [23]

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


[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.

[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/

[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

[99. ’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

[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’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.

[20’[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/.

[21’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.

[22’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/.

[23’2020 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.

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