Former Attorney General of India and jurist Soli Sorabjee said the Supreme Court “overreacted” by taking suo motu contempt proceedings against civil right lawyer Prashant Bhushan for his tweets.
“The court may at the most give a lecture to Prashant now. Warn him, but not punish him... It is rather a delicate balance to keep,” Mr. Sorabjee told The Hindu during an interview on August 22.
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The court has reserved its decision on punishment in the suo motu contempt case. It has given Mr. Bhushan time till August 24 to reconsider his statement refusing to apologise to the court for his tweet about Chief Justice of India S.A. Bobde on a bike and another on the role of the Supreme Court in the past six years.
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.
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The authority and dignity of the Supreme Court as an institution will be enhanced if it addresses the allegations rather than to slap contempt on the person who made them on the basis of facts.
He said a person cannot be punished for contempt for simply making an allegation. The court should not function on pre-conceived notions. Punishment should come only after the allegation is found false.
“Every citizen has the right to his independent view. If somebody says judges are corrupt, allow him the opportunity to prove his allegation right... I repeat, if Prashant Bhushan’s allegations are found to be completely nonsensical, then punish him, but not before that. You can’t just assume and say they are incorrect without giving him a chance to prove them... No, I don’t think the Supreme Court has come out in good light at the end of this matter,” Mr. Sorabjee said.
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He questioned the way the court has hurried through the contempt case, hearing it via video conferencing. “What would have happened if they had shown a little patience... Would it have all fallen down, crumbled if they had waited a little time” Mr. Sorabjee questioned.
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,” Mr. Sorabjee said.
He further said Attorney General K.K. Venugopal, having been issued notice and present during the entire hearing, should have been heard at length. “The court hurried through the matter,” Mr. Sorabjee said.
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On the issue whether “scandalising the court” should continue to survive as a ground for contempt in a democracy, Mr. Sorabjee said judiciary is an important institution and its dignity cannot be undermined.
“However, the question here is that of principle. Can you or can you not criticise the judiciary based on certain facts, that is, definite facts? And if you do this, do you commit contempt of court? On the contrary, I believe you enhance the authority of the court,” Mr. Sorabjee said.