Expressing opinion or bona fide anguish, however outspoken, disagreeable or unpalatable, cannot constitute contempt amounting to scandalising the court, noted civil rights lawyer Prashant Bhushan has said in a reply to a contempt notice issued to him by the Supreme Court.
Mr. Bhushan was responding to suo motu contempt action initiated against him on his tweets — one concerning a photograph of Chief Justice of India Sharad A. Bobde on a motorcycle and the other about the functioning of the Supreme Court in the past six years under four Chief Justices.
A three-judge Bench led by Justice Arun Mishra issued the contempt notice on July 22, saying the tweets undermined the dignity and authority of the court and the office of the CJI.
“Chief Justice is not the court, and raising issues of concern regarding the manner in which a CJI conducts himself during ‘court vacations’, or raising issues of grave concern regarding the manner in which four CJIs have used, or failed to use, their powers as ‘Master of the Roster’ to allow the spread of authoritarianism, majoritarianism, stifling of dissent, widespread political incarceration, and so on, cannot and does not amount to ‘scandalising or lowering the authority of the court,’ ” Mr. Bhushan contended.
The senior lawyer highlighted the very words of a Constitution Bench of the Supreme Court in the contempt case against former Madras High Court judge C.S. Karnan, namely that the “law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate”.
Freedom of speech and expression was the “ultimate guardian” of values upheld in the Constitution. The exercise of contempt powers by the Supreme Court must necessarily not be of a nature that went beyond ‘reasonable restrictions’. The power of contempt under Article 129 was to be utilised to aid in administration of justice. Contempt could not be pressed into service to stifle bona fide criticism from citizens who were well-informed about the omissions and commissions of the Supreme Court, he said.
A separate writ petition has been filed jointly by veteran journalists N. Ram and Arun Shourie along with Mr. Bhushan challenging the constitutionality of contempt by “scandalising of the court” as “incurably vague”.
Mr. Bhushan said his tweet on June 29 regarding the CJI on a bike was made “primarily to underline my 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”.
The July 27 tweet about the functioning of the court and the role of four CJIs was an expression of “ bona fide anguish”, he said.
‘Democracy substantially destroyed’
“The first part of the tweet contains my considered opinion that democracy has been substantially destroyed in India during the last six years. The second part is my opinion that the Supreme Court has played a substantial role in allowing the destruction of our democracy and the third part is my opinion regarding the role of the last four Chief Justices in particular in allowing it,” Mr. Bhushan replied.
He said that the citizens in a democracy had every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution.
“I submit that my criticism has been outspoken yet it has been carefully weighed and made with the highest sense of responsibility,” Mr. Bhushan responded to the contempt notice.
He noted that several retired Supreme Court judges had expressed concern about the stifling of dissent. He recalled that Justice D.Y. Chandrachud, a serving judge of the Supreme Court, had expressed his anguish at the manner in which dissent was labelled as anti-national. He said four then Supreme Court judges had warned about the danger to democracy in an unprecedented press conference they called in January 2018.
Mr. Bhushan said the July 22 order mentioned that the suo motu contempt proceedings were based on a petition filed by Mahek Maheshwari the previous day. Mr. Maheshwari had sought exemption from taking the permission of the Attorney General. However, the contempt notice did not annexe the contempt petition. The administrative order to place the case for hearing on the judicial side had also not been annexed. The Registry had not provided these documents despite him asking for them.
“In the absence of that, I am somewhat handicapped in dealing with this contempt notice,” Mr. Bhushan said.
A solidarity statement has been signed by 131 personalities cutting across the spectrum, including senior lawyers, retired judges and journalists, in support of Mr. Bhushan.
A three-judge Bench led by Justice Mishra has scheduled the case for hearing on August 5.