The views expressed here are not my opinions but mere questions. I fear for placing my opinion even on the open web because I may be tried for contempt of court.
The supreme court of India‘s 3 Judge bench constituting Justice Arun Mishra, Justice B. R Gavai, and Justice Krishna Murari on 14th August 2020 ruled that Sr. Advocate “Mr. Prashant Bhusan is guilty of having committed criminal contempt of this Court.”
Short brief of the 108-page judgment by the SC:
1. A petition was filed at the SC by Mahek Maheshwari because of a tweet made by Mr. Prashant Bhushan, Advocate praying therein to initiate contempt proceedings for willfully and deliberately using hate/scandalous speech against the Supreme Court and entire judicial system.
2. For any petition to be entertained regarding the contempt of court, the prior permission of the Attorney general of India must be attained. In this case, the attorney general withheld approval.
3. The tweets were as follows:
The Tweets that the SC is concerned about
“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”
Date: June 29, 2020
“When historians in future look
back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
Date: June 27, 2020
4. The supreme court stated:
“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large. We take suo motu cognizance of the aforesaid tweet also apart from the tweet quoted above and suo motu register the proceedings.”
5. Mr. Prashant filed a detailed affidavit running into 134 pages in his reply stating that the tweet dated June 29, 2020
“was primarily to underline his anguish at the non-physical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal.”
On one hand, the CJI keeps the SC closed and on the other hand, he is riding a 50 lakh rs motorbike without a helmet and a mask. And that the said tweet that if it is regarded as a contempt, it would stifle free speech and would constitute an unreasonable restriction on the right of a citizen under Article l9(1)(a) of the Constitution.
About the second tweet, he submits that it was his bona fide opinion about the state of affairs in the country in the past six years and the role of the Supreme Court and in particular the role of the last 4 CJI.
The reasoning of the Court
6. The supreme court held Mr. Bhusan guilty of contempt stating that the remarks made in the tweet were made to the Chief Justice not in his personal capacity but in the capacity of the Chief Justice of India. The allegations made in one of the tweets that the Supreme Court was non-functional is “patently false” as Mr. Bhusan himself appeared for several hearing via video conferencing and invoked a writ petition under Article 32 not only as a lawyer but also as a litigant.
In regard to the second tweet dated June 27, 2020 Mr. Bhusan’s claim that the democracy has been substantially destroyed in India during the last six years. The court is concerned with this personal opinion as it out of the purview of the court and it’d be political to discuss such a statement. But what concerns the SC is the latter part of the tweet where Mr. Bhusan stated and agreed in his affidavit that the SC including the role of the last 4 CJI that has played a substantial role in the destruction of the democracy in India.
Mr. Bhusan being part of the institution of administration of justice for over 30 years, instead of protecting the majesty of law has indulged in an act, which tends to bring disrepute to the institution of administration of justice. Statements of such nature are not acceptable from a person of this standing and cannot be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest
In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
The SC condemned that if such a matter is not dealt with firmly it may have a negative impact on the esteem of judges of the other courts including the lower courts.
A possibility of the other judges getting an impression that they may not stand protected from malicious attacks, when the Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out.
…….Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them.SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
Justice Krishna Iyer relied on another judgement quoted:
…if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.Re: S. Mulgaokar (supra)
Therefore, the Apex Court held the tweets which are based on the distorted facts, amounts to committing of ‘criminal contempt’.
Beginning of the end of India’s democracy?
In my considered view, arguments, debates, opinions that go in multiple directions are the heart of a healthy democracy. The Supreme Court taking suo-moto cognizance of this matter has proved that it seeks Justice to the Supreme Court first and the country later.
If I have understood the crux of the Judgement, this tweet was held to be Contempt because Mr. Bhusan is a part of the Supreme Court for the last 30 years and a person of such a standing speaking against the institution has lowered the honor of the “Majesty of Law”.
Does this infer that a person cannot criticize or put forward his opinion that goes against the institution he is affiliated to?
The Apex Court being a court of record stores a strong precedent that no fraternity from the law can criticize the Courts or bring out a personal opinion about any of the Judges or officers of law.
And is this not an attack on the democracy of India?
Whatever the sentence handed to Bhushan later this month, the court has done a real injury to its own standing as the balancing and harmonising institution. This self-goal is compounded by the fact that it has acted against Bhushan when it is seen to turn a deaf ear and an unhurried eye to several important casesIndian Express
Above all, Why is the Supreme Court concerned about a lawyer’s opinion or rather forecast on what historians might think about the SC in future?
With the increasing number of pending cases including cases such as the removal of Article 370, is this the top priority of the Supreme Court to decide on cases of Log kya kahenge? (English: What will people think?)
What is alarming to me is the apex court convicting people and narrowing the freedom of speech and expression has severe consequences on the pillars of the vision that the Constituent Assembly had envisaged.
The beauty of democracy is that the people can put forth their opinion, however mistaken they may be.
Can this move be said to be the beginning of the end of India’s democracy in the hands of the same court that was put with the duty to protect it?
Copy of the Judgement dated 14.08.2020