Supreme Court Should Review Prashant Bhushan Judgment

By its judgment and order dated Aug. 14, 2020 a bench of three judges of the Supreme Court held Prashant Bhushan guilty of having committed criminal contempt by having tweeted that :

“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.”

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.

By its judgment (comprising of 108 pages and 77 paras) the Supreme Court held that that “while considering as to whether the said criticism was made in good faith or not” one of the circumstances was that “publication by Tweet reaches millions of people” and that the alleged contemnor “has been practicing for last 30 years in the Supreme Court and the Delhi High Court”.

From there and without any further discussion the court reached the conclusion that “the scurrilous allegations which are malicious in nature and have the tendency to scandalize the court” and that “it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bonafide in the Public Interest”.

Having thus concluded the court further held that “An attempt to shake the very foundation of Constitutional democracy, has to be dealt with an iron hand” and that “If such an attack is not dealt with , with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations”.

In that affidavit Mr Bhushan had stated that over the last six years under the present government the country has witnessed a systematic dismantling of democracy in favour of electoral authoritarianism, dismantling of constitutional rights and constitutional institutions, that majority rule had become majoritarian rule and electoral democracy had degenerated into electoral authoritarianism.

Mr Bhushan had pointed out that in these six years as the spirit of democracy was being extinguished the Supreme Court had largely failed in its duty to protect the institutions and failed to prevent the subversion of our democracy.

Mr Bhushan had listed the “systematic dismantling of democracy by the executive and legislature in the past six years”; he had referred to the assault on persons critical of the government by lynch mobs associated with saffron groups which are patronised by the government and a complicit police; to the dismantling of the rights of minorities and the use of draconian laws like NSA and UAPA particularly on sections of minorities; that the dismantling of rights was now being extended to the right to life itself and he referred to the conduct of the Delhi Police which had ignored complaints against goons and police officers seen on video as assaulting people and against BJP leaders seen on video clearly instigating mobs to violence, while peaceful protesters were charged and arrested; the manner in which a mob of armed goons was allowed to enter JNU under the gaze of Delhi Police and beat up students and teachers inside the campus; that for the first time in three decades the impartiality of the Election Commission was being doubted; that retrograde amendments had been effected in the form of Money Bills/the Finance Act to allow flow of funds to the ruling party through removal of limits on corporate donations and the Electoral Bonds Scheme; that the Lokpal had not been appointed for 6 years; that the government had with prescience predicted in the Supreme Court that the CAG would redact all pricing details from its Rafale Report; that the CBI director was ousted in a midnight coup as it was thought that he might initiate an investigation into the Rafael deal; that the NIA has become a favoured tool of the government for harassing and hounding activists who are critical of the government as in the Bhima Koregaon Case where leading human rights activists have been targeted.

Mr Bhushan had dealt with the role of the Supreme Court which he stated had the pivotal role of being the guardian of the constitution and fundamental rights of citizens and was expected to ensure that the executive and the legislature do not transgress the limits of their powers and violate the fundamental rights of citizens. He stated that he held the bonafide opinion that the last six years has seen a striking decline in this role of the Supreme Court and that there had been an abdication by Supreme Court of its constitutional duty, that when the country had witnessed an assault on all democratic norms, the liberty of citizens and the secular fabric, the Supreme Court by various acts of omission and commission had acted in a manner that has allowed the majoritarian executive at the centre to trample upon the rights of citizens and allowed majoritarianism to gain a deep foothold in the country; that egregious assaults on civil rights and on institutions had been allowed to go through without any accountability under the gaze of the Supreme Court. He had pointed out that even Habeas Corpus writ petitions and the challenge to media lockdown and denial of internet in J&K were not heard for months; that a new jurisprudence of sealed covers was evolved, in which the Supreme Court accepted and acted upon unsigned notes handed over by the government to the court which were not even shown to the petitioners, as was seen in the Judge Loya death case, in the Rafael case and in the Assam NRC Case; he had pointed to the manner in which the court prioritised cases for hearing: the Electoral bonds case which was filed in 2017 remained pending while the electoral bond scheme which largely benefited the ruling BJP continued; the hearing of the writ petition challenging the conversion of the state of J&K into a union territory had not even started; the reluctance to hear and decide Habeas Corpus petitions of persons detained in J&K ; the delay in hearing the petitions challenging the CAA and that in contrast the Ayodhya/Ram Mandir case was heard for 40 days. Reference was also made to the manner in which Chief Justice Gogoi had dealt with the sexual harassment complaint made against him (by sitting on a bench considering the same, whilst not signing the order); the inexplicable transfers of Justice Kureshi and Justice P Nandrajog and the appointment of Justice Gogoi to the Rajya Sabha by the government shortly after his retirement.

Despite Mr Bhushan having filed this detailed explanation which raised extremely material and important issues, the Honourable Court totally failed to consider or deal with the same and instead proceeded to hold him guilty of having committed criminal contempt.

It is well settled by decisions of the Supreme Court itself, that criminal contempt proceedings are quasi-criminal in nature , that charges have to be framed as per the statutory rules and the charges have to be proved beyond reasonable doubt, i.e. the standard of proof required is the same as required in criminal cases. It has also been held by a three judge bench of the Supreme Court that even if proceedings for criminal contempt are taken by a High Court by invoking powers and jurisdiction under Art 215—equivalent to Art 129 for the Supreme Court—the same “has to be exercised in accordance with the procedure prescribed by law” and “require strict adherence to the procedure prescribed under the rules applicable in such proceedings”.

Contrary to the law laid down by the Supreme Court itself, the Court in Prashant Bhushan’s case has proceeded to deal with the proceedings for criminal contempt , in a summary manner. I believe no charges were framed or communicated and the matter was concluded in a single video hearing and the decision delivered in less than 30 days from initiation. Significantly in RS Sujatha’s case the Supreme Court while setting aside a conviction of criminal contempt criticised the Tribunal for proceeding “in great haste as the show-cause notice was issued by the Tribunal on 15-11-2002 for initiating the said proceedings, fixed the date for 12-12-2002 and disposed of the matter on 19-12-2002”.

The concerns voiced and the matters detailed by Mr Bhushan regarding the functioning of the Supreme Court are in fact shared by a large number of persons, historians, lawyers, retired judges, members of Parliament and editors of leading newspapers.

Ram Guha has in a recent article stated that while the Supreme Court cannot be blamed for the degradation of Indian democracy, it has in the recent years done very little to stop or stem it, and further that the court was complicit in the steady, continuing and accelerating degradation of our democratic processes and democratic institutions.

Pratap Bhanu Mehta has last year commented that “The Supreme Court has badly let us down, through a combination of avoidance, mendacity, lack of zeal on behalf of political liberty”.

Professor Suhas Palshikar has pointed out that “This political transformation would not have been so easy without the willingness of the judiciary to look the other way...”.

The failure by the Supreme court to hear and decide petitions raising issues vital to our constitutional democracy and its institutions, like the electoral bonds case, the challenge to demonetisation, the challenge to the abolition of Article 370, the conversion of the state of J&K to a union territory, the lockdown on the liberties and freedom of the people of J&K, the habeas corpus petitions relating to detentions in J&K, and the challenge to the CAA, have been pointed out by a large number of people, and lawyers including myself.

On Aug. 17, 12 former judges and 3,000 citizens and lawyers have in the context of the Supreme Court’s judgment holding Prashant Bhushan guilty of criminal contempt pointed out that “the intention was to engage with the concerns articulated by many regarding the reluctance of the judiciary to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights”.

I believe that contrary to the views expressed in the judgment, such action does not protect “the majesty of law” or preserve or enhance “the confidence of the people” in the Supreme Court. Stigmatising such comments on matters of public importance as “scurrilous” and “malicious” and taking contempt proceedings for the same, does not preserve or enhance the stature of the Supreme Court and is unlikely to push these matters outside the pale of public comment and debate.

It is my hope and belief that the Supreme Court will itself rectify matters and that this judgment will be reviewed and overruled – hopefully earlier than the 40 years it took in the case of the ADM Jabalpur judgment.

Aspi Chinoy is a senior advocate who focuses on matters of public interest.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.