Lapsing into contempt: On punishing Prashant Bhushan

Finding Prashant Bhushan guilty of contempt reflects a low threshold for criticism

August 17, 2020 12:02 am | Updated 12:25 am IST

The Supreme Court’s order finding advocate Prashant Bhushan guilty of contempt of court reflects poorly on the institution’s tolerance of criticism. The judgment of a three-judge Bench on the suo motu contempt proceedings against Mr. Bhushan hardly adds to the dignity and majesty of the Court that it ostensibly sets out to uphold. It is unfortunate that two tweets, and not any set of scandalous or scurrilous allegations, have occasioned this heavy-handed treatment. In the 108-page opinion that largely draws upon past judgments delineating the circumstances in which the Court will act in aid of its institutional reputation and authority, there is little more than a perfunctory analysis leading to the finding that the tweets amount to criminal contempt. The first tweet, in which an image of Chief Justice of India S.A. Bobde in an informal setting has been used to make a critical remark that he was denying citizens recourse to justice for fundamental rights violations, may be an exaggerated or even unwarranted view on the absence of physical hearings now. However, it is quite a stretch to say that it undermines the Court’s dignity, lowers its authority or interferes with the administration of justice. At best, it touches partially on the CJI’s personal conduct and partially on his administrative decision-making. Neither part brings with it any exceptional malice or scurrility warranting action for criminal contempt. It is precisely this sort of criticism that the judiciary ought to be able to shrug off.

The second tweet, in which Mr. Bhushan has blamed the Court, more particularly, the last four CJIs, for “the destruction of democracy” in the last six years, “even without a formal Emergency”, requires no defence. It is clearly in the nature of a political opinion, be it with reference to the working of the institution or the four personages who headed the judiciary during the period. It is difficult to agree that the mere voicing of an opinion that successive CJIs have destroyed democracy would undermine public trust in the judiciary; especially in the backdrop of some former judges, too, holding sharply critical opinion of the conduct of some of them. In its nature, intent and sweep, Mr. Bhushan’s abrasive animadversion of judicial conduct is no more discordant than a former CJI being accused by his colleagues of being under executive influence, or misusing his powers as master of the roster with a view to obtaining favourable outcomes. 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.

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