Mr. Prashant Bhushan, senior lawyer and indefatigable campaigner for public causes cum thorn in the flesh for the other side, recently put out a tweet with a photograph where he criticised Mr. Justice S.A. Bobde, the current Chief Justice of India (CJI), for riding an expensive motorcycle at a time when the Court is under lockdown.
No one can accuse Mr. Bhushan of moderation, and clearly he was off the mark here. The Courts are shut because the world is in lockdown; the Chief Justice of India is hardly to blame for this. And the photograph only showed him, clad in casual wear, sitting on a stationary motorcycle to get the feel of it. It was no doubt an unusual sight, since we are so used to seeing the head of the judiciary only in the most formal settings and attire. But for that same reason, it was refreshing to see an august personage in a rather human light. Many of us have pleasant recollections of our motorcycle days with the wind at our face and the world at our feet; perhaps the CJI was going back down memory lane to happier days. He could be forgiven for this brief respite from the cares of his office, even if he was unmasked momentarily. And who knows – if you remember Robert M. Pirsig’s Zen and the Art of Motorcycle Maintenance , a motorcycle may give you some insights into how to navigate through the fog and treacherous roads that now lie before us.
Series of actions
If matters had been left alone, this picture and tweet would have merited a two-minute attention in this current chaotic and fast-moving world. However, on Wednesday last, the Supreme Court of India upended the frame, picture, narrative and discourse. A three Judge Bench, headed by Justice Arun Mishra, took suo motu notice of it and issued notice of contempt of Court to Mr. Bhushan “for undermining the dignity and authority of the Institution of Supreme Court in general, and the office of the Chief Justice of India in particular”. The Bench coupled to this another tweet of Mr. Bhushan in which he says that in the last 6 years, democracy has been destroyed in India, and that historians will mark the role of the Supreme Court in this, especially the last 4 CJIs. It followed it up on Friday by listing yet another citation of contempt against Mr. Bhushan, this time in a 11-year-old case where he allegedly said in 2009 that half of India’s last 16 Chief Justices were corrupt.
So now we have causes célèbres , given the issues and the players. Going by his record, Mr. Bhushan will not back down. Indeed, he may well welcome the centre stage he is now getting, and one can be sure he will train his guns on the narrative of corruption within the judiciary. We may be in for a slugfest of mammoth proportions, leaving the Indian Premier League far behind.
For the judiciary to consider
But let us Pause. The Wise say that that should be done before taking momentous steps and treading on troublesome paths. And ask a few (six) questions: Is the Court being needlessly reactive? Across international jurisdictions, a far more liberal view is taken, with courts preferring to display broad shoulders and rest their protections on the surer moorings of public confidence rather than seek cover under the law of contempt.
Editorial | Scandalising as contempt
Is this about being protected from criticism or genuinely wanting to examine the serious complaints about the functioning of former judges? If some allegations do pass a threshold test, will the Court go the whole way of inquiry and strong action, or will it just sweep them under the carpet and deposit the carpet in a Pandora’s box? Will the latter be readily accepted, given that there is a general perception that integrity levels have markedly declined in the last score of years.
Is this the right Bench size, composition and leadership for this set of cases? The issue of corruption infecting the topmost judiciary is as serious as can be. Should not a larger Bench, with more senior judges, hear these matters? Justice Mishra and Mr. Bhushan have had frequent confrontations in Court, and in a 2019 contempt case relating to appointment of the Director of the Central Bureau of Investigation, Mr. Bhushan has even petitioned that this Judge should not hear the matter. Memories still exist of an unprecedented press conference held in 2018 by the four seniormost Justices of the Court expressing their unhappiness at assignment of sensitive cases to Justice Mishra. There are perceptional difficulties in thinking that this is the best Bench for this case.
Is this the right time for these issues to be taken up? COVID-19 has brought forth a standstill of the courts, which even before this were grappling with a gargantuan mass of cases. Salvaging and securing the administration of justice ought to be uppermost in minds of the apex judiciary, and there is no shortage of urgent and pressing issues which desperately cry out for the Court’s attention. Why this now?
How will the Bar respond? It will be carefully watching whether one of its own is receiving fair treatment from the Bench. Lawyers have ideological and personal divides, but the Bar has an astonishing capacity to join ranks against authority that exceeds bounds; it is after all in the DNA of the common lawyer to keep arbitrary state authority in its place, for which this country must be ever grateful.
Will the Court’s international institutional standing be enhanced or lowered if it takes up this case in this manner at this time?
Think and act
Contempt of court cases are usually between Court and Contemnor. Others do not have much of a say where an order has been disobeyed; there is little to do beyond establishing the fact, and enforcing punishment. But when it comes to a charge of scandalising the Court and interfering with the administration of justice, and when such charge proceeds on the expression of an opinion, on a matter which is undoubtedly one of public interest, matters are not quite so simple. One must tread carefully, or not at all. Or, perhaps, even more apt in the present context is the following quote oft ascribed to an anonymous source: “When you are standing at the edge of a cliff, progress is a step backwards.”
Sriram Panchu is Senior Advocate, Madras High Court. E-mail: srirampanchu@gmail.com
