While the Supreme Court was in its 108-page judgment concerned with the impact of the tweets on the public, how does one judge public confidence in the Supreme Court of India? Did the court have a measuring rod and is so what was it? Opinion makers express their views explicitly and we publish here a range of views and opinions, not just on the tweets but on the judgment of the court. The Supreme Court should reconsider its judgment and recall it on the ground that the tweets did not have the impact of shaking confidence in the Supreme Court. The issue was never whether we agree or disagree with the content of the tweets but Prashant Bushan right, and indeed our collective right to hold a bona fide opinion and voice it.
Days after Supreme Court found prominent human rights lawyer Prashant Bhushan guilty of Contempt of Court, editorials have been criticizing the judgment for constricting freedom of speech and expression. Many legal scholars, senior advocates and former judges have expressed serious reservations with the manner in which the matter was heard and the judgment was handed down.
In his first tweet on June 27, Bhushan had said, “When historians in future look back at the last six 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.”
Likewise, the second tweet dated June 29 commented on a viral picture that showed CJI Bobde on a Harley Davidson bike. The tweet in question read: “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!”
A three-judge bench of Justices Arun Mishra, B R Gavai and Krishna Murari held that the tweets were an attempt to shake the very foundation of constitutional democracy and hence must be dealt with an ‘iron hand’.
The bench added that if the attack is not dealt with, with a requisite degree of firmness, then it may affect the national honour and prestige in the comity of nations.
The court has fixed August 20 as the next date for hearing the argument on the sentencing.
Leading Editorials
The Hindu, a leading English newspaper in its editorial titled ‘Lapsing into contempt: On punishing Prashant Bhushan’ termed the judgment unfortunate. It said, “It is unfortunate that two tweets, and not any set of scandalous or scurrilous allegations, have occasioned this heavy-handed treatment”. It added, “Finding Prashant Bhushan guilty of contempt reflects a low threshold for criticism”.
The Hindu’s editorial concluded-
“There is some inadvertent irony in the Court’s claim that allowing Mr. Bhushan’s remarks to go unpunished would lower the country’s image in the comity of nations. The highest court built its stalwart fame on stellar judgments and record of fearless independence. If at all it falls in the estimation of the world now, it may only be because of a growing perception of judicial evasion, self-imposed reticence and quiet acquiescence in the face of executive power”.
Yet another leading newspaper Times of India (TOI) in its editorial titled ‘SC says contempt: But it must make room for dissent’ wrote Supreme Court’s finding of advocate Prashant Bhushan as guilty of criminal contempt could constrain the space for bona fide criticism of the judiciary.
Referring to the apex court’s observation of an “iron hand”, the ToI stated that judges in liberal democracies like the US and UK have taken the opposite course, the latter’s parliament too decriminalising the “scandalising” of courts in 2013. It added in 2018, four SC judges themselves came out publicly against the then CJI. It added a liberal outlook towards trenchant critics only reaffirms that courts function without fear or favour.
The Indian Express in its editorial titled ‘Guilty’ noted that the conviction of lawyer and activist Prashant Bhushan for criminal contempt for two tweets criticising the chief justice and the court is a sobering moment, a day before the country celebrates its freedom. It noted-
“For all the lengthy reasoning in Friday’s 108-page order, for all its conclusion that in holding the tweets as “false, malicious and scandalous”, it was acting “not to vindicate the dignity and honour of the individual judge” but to uphold the “majesty of the law and of the administration of justice”, the order can, and will, be read as the Supreme Court showing a thin skin and wielding the offence of contempt to constrict the fundamental freedom of expression”.
The Express editorial also stated that the judgment also sends a chilling message that criticism could carry a high cost by leaving an impression of heavy-handed use of a blunt instrument against an individual citizen. A citizen who has a record of standing up and showing the mirror.
“Clearly, the SC has not heeded, as it has done earlier, its duty to be magnanimous, and to display the higher tradition of the higher courts — of “majestic liberalism”, stated the editorial of Express.
It went on to state “Even as the court’s power of contempt flows from Article 129 of the Constitution, it needs to be reconciled with the constitutional values of free and fair criticism”.
The Express editorial also stated that the judgment also sends a chilling message that criticism could carry a high cost by leaving an impression of heavy-handed use of a blunt instrument against an individual citizen.
“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”, the Express editorial said.
Yet another leading English Newspaper Hindustan Times, in its Editorial, titled ‘The SC must introspect’ termed the judgment ‘disappointing’. It, however, clarified that newspaper does not endorse the content of either of Mr Bhushan’s tweets, “but the issue here is the manner in which court has dealt with the issue, which is more about individuals and less about the court itself”.
“There is a certain rationale for the provision of contempt. But for it to have legitimacy and effectiveness, it must be used in rare circumstances — when the State or citizens refuse to abide by the order of the court, when there is clear evidence of obstruction of justice, and when the court itself is being targeted”, editorial of Hindustan Times stated.
The HT editorial cited the 2012 UK Law commission report that recommended that “offence of “scandalising the court” was an infringement of freedom of expression that should not be retained” and it was subsequently implemented by the UK parliament.
The Print, a digital news platform, in its 50-word editorial titled SC holding Prashant Bhushan guilty of contempt a let-down. Democracy must celebrate dissent, not curb it termed the judgment ‘let-down’. No criticism, the editorial of the Print, said could undermine the great institution more than the impression of it being thin-skinned.
It added democracy must celebrate dissent, instead of curbing it. Contempt of court law must be reviewed.
The SC, the New Indian Express, said is not an institution whose image can be lowered by a few tweets or comments by any individual, irrespective of their standing.
The New Indian Express posed two questions in its editorial titled ‘Apex court’s image cannot be lowered by a few tweets’. First, relevance of an archaic law like Contempt of Court in a democratic set-up, because it brings into play the overriding right of freedom of expression guaranteed in the Constitution. The second question flows from the general belief that the Supreme Court is the last resort for citizens who seek to guard the values of the Constitution.
The SC, the New Indian Express, said is not an institution whose image can be lowered by a few tweets or comments by any individual, irrespective of their standing.
Former CJIs opine
Former Chief Justice of India R M Lodha in a telephonic interview to The Hindu wondered why the Supreme Court moved quickly to hear the suo motu criminal contempt case against Prashant Bhushan via a virtual court hearing amid a pandemic.
“Heavens were not falling,” Justice Lodha said in a telephonic interview with The Hindu on Friday. The virtual court system initiated to urgently hear and protect personal liberty was “actually impairing somebody’s liberty,” he said.
“It is really surprising that a matter like this has been taken up during a pandemic and when the court is not having physical hearings. This case could have been taken up as soon as the court resumed physical hearings. This is a little disturbing for me,” Justice Lodha said.
Justice Lodha said virtual court hearing was not a proper system for the delivery of justice in a criminal contempt matter. “A criminal contempt matter is between the court and the contemnor. No third party is involved. So, the contemnor should be fully assured that he is being provided with procedural fairness and a full hearing. A virtual court does not meet these parameters. A physical hearing was more assuring than a virtual one,” he said.
On “scandalising of court” as a ground for contempt, Justice Lodha noted that this law, as long as it remained in the country, should not be applied in a routine manner.
Senior lawyers call judgment an attack on free speech
Senior Advocate Iqbal Chagla in his fierce criticism wrote in Indian Express that Supreme Court’s judgment in Prashant Bhushan case spells out a chilling lesson that undermines the most valuable fundamental right — the freedom of speech.
Another Senior Advocate from Bombay Navroz Seervai opined that the judgment is not only “an assault on free speech and expression in the name of upholding the “dignity and majesty” of the Court in the eyes of the public”, but also appears to be a calculated attack on a certain section of the civil society.
As reported by The Hindu, Senior Advocate Raju Ramachandran said the court ought to have leaned on the side of freedom of speech. “Considering the contribution which Mr. Bhushan has made in public interest litigation, it is disheartening that the court acted on two tweets which in the very nature of the medium is not capable of nuance,” he said.
Senior Advocate Indira Jaising, in her opinion piece, published in BloombergQuint said “Is this even constitutional…being held guilty of a crime without a charge being framed, or the red herring on malintention to scandalise the court? This alone makes the judgment erroneous in law, anti-constitutional, and a great setback for the rights to life and free speech”.
Senior Advocate Sanjay Hegde noted that the court should also ensure its authority was not further undermined while exercising the power of contempt. “The judgment does not provide a cogent narrative as to how the authority of the court was undermined by just two tweets. Public trust and authority of the court rests on firmer foundation than that.”
Senior Advocate Mihir Desai who mainly practices at Bombay High Court took to his Facebook to express his disappoint with the judgment. He said respect is something which cannot be forced. Respect in common English means deep admiration for someone or something elicited by their abilities, qualities or achievements.
He wrote “I want to ask the Present Supreme Court since it claims to have acted as a citadel of democracy (1) why has the issue of political bonds not been decided yet (2) why have habeus corpus petitions concerning Kashmiri detunes been put on back burner? (3) Why is the constitutionality of NRC CAA not been decided yet. (4) why does it take two months, many deaths and massive criticism for it to awaken to the plight of migrant workers. And I can go on and on. Supreme Court says that people approach Supreme Court because they have faith in it”.
A statement, signed by leading lawyers such as Vrinda Grover, Dushyant Dave, Kamini Jaiswal, Karuna Nundy, Shyam Divan, Sanjay Hegde, Menaka Guruswamy and others, said that the SC’s verdict against Bhushan said an independent judiciary does not mean that judges are “immune from scrutiny and comment”.
Views legal scholars, academics and civil right organisations
Legal scholar Gautam Bhatia in his blog stated there was no legal reasoning in the judgment, and therefore nothing to analyse. He added Mr. Bhushan had filed an extensive reply to the contempt proceedings against him, contextualising and defending the two tweets for which these proceedings were initiated; among other things. The Supreme Court, however, refused entirely to engage with Mr. Bhushan’s reply.
“There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary, the need to maintain “the comity of nations” (?!), and an “iron hand” (!). There is, however, no legal reasoning, and no examination of the Reply”, Bhatia said.
Academic Pritam Baruah in his piece published in article14 said that in convicting Prashant Bhushan of contempt, the Supreme Court partly relies on a 265-year-old British case, from an era of undue deference to authority. It used “dignity” 31 times and “authority” 50 times in a vague, murky formulation that is the province of sophistry rather than legal justification.
The Commonwealth Human Rights Initiative (CHRI) in its statement said that the Supreme Court verdict slamming senior lawyer and human rights advocate Prashant Bhushan’s critical tweets of it is “a sign of the current deterioration in the state of free speech in the country,”
In a statement, the People’s Union for Civil Liberties (PUCL) said it is “dismayed and disappointed” by the verdict.
“PUCL feels that the finding of the SC is not only unfortunate but will also have the contrary effect of lending substance to the view that just like how other democratic institutions in India are criminalising dissenters, the SC too is unwilling to acknowledge serious issues about the way the judicial system is functioning,” it said.
Historians Ramachandra Guha and S Irfan Habib also condemned the judgement against Bhushan.
Guha tweeted “Through this act, the Supreme Court has let itself down, and has let the Republic down too. A dark day for Indian democracy” whereas Habib wrote “SC found Bhushan guilty on the eve of our Independence Day. I don’t think even the British ever punished dissenting or even critical voices of lawyers, poets, writers and intellectuals this way”.
(The author is a lawyer based in Delhi.)
