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The initiation of contempt proceedings against Prashant Bhushan for various tweets and an interview has set off a furious debate about freedom of expression versus freedom of the judiciary

By Srishti Ojha

Two contempt proceedings have been initiated by the apex court against advocate Prashant Bhushan, leading to prominent citizens showing solidarity with him. One relates to a 2009 case and the other to tweets by him.

Suo motu criminal contempt proceedings were recently initiated against Bhushan for his tweets against Chief Justice of India (CJI) SA Bobde. The notice, issued to Bhushan on July 2, asked him to showcause why criminal contempt proceedings should not be initiated against him. A three-judge bench of Justices Arun Mishra, BR Gavai and Krishna Murari took note of the tweets of Bhushan made from his personal Twitter handle.

On June 27, Bhushan tweeted: “When historians in future look back at the last 6 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.”

Another tweet by Bhushan on June 29, said: “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!”

While the Court took up the matter suo motu, it received an application from advocate Mahek Maheshwari too. The petition alleged that the tweet was of a serious nature and put a big question mark on the sovereign function of the CJI and its abiding nature to the Constitution.

The apex court held the view that the statements made by Bhushan had brought the administration of justice into disrepute and were capable of undermining the dignity and authority of the institution of the Supreme Court in general and the office of the CJI in particular. The Court fixed August 5 as the next date of hearing and asked the parties to file their replies and Attorney General KK Venugopal to assist the Court.

In addition to this case, a bench led by Justice Arun Mishra on July 24 took up for hearing an 11-year-old suo motu contempt case against Bhushan, which was registered after a complaint made by senior advocate Harish Salve. The case was regarding a set of allegations made by Bhushan against former Chief Justices SH Kapadia and KG Balakrishnan. Way back in 2009, Bhushan had given an interview to Shoma Chaudhury of Tehelka magazine where he allegedly said that half of the last 16 chief justices were corrupt. Salve said that Bhushan had alleged that Justice Kapadia had heard a matter involving Sterlite company even though he held shares in it, but didn’t mention that the advocates involved in the case were aware about it. When the matter came up before Chief Justice KG Balakrishnan and Justice Kapadia, the Bench directed the matter to be listed before a three-judge bench of which Justice Kapadia was not a part. In subsequent hearings of the case, the Court held the contempt case to be maintainable while acknowledging that it was a mistake by the Registry to have placed the matter before the judicial side rather than the administrative side. Before the Supreme Court decided to hear the matter on July 24, it was listed before a three-judge bench of Chief Justice Ranjan Gogoi and Justices SK Kaul and KM Joseph on December 12, 2018. After requests from all lawyers for time, the Court decided to take up the matter on August 4, 2020.

Incidentally, the Court took up these contempt petitions two months after it granted Bhushan interim protection from arrest in an FIR registered against him by the Gujarat police which alleged that he had hurt religious sentiments through a tweet of his on March 28. The notice was issued by the Bench even though a division bench of Justices Ashok Bhushan and Sanjiv Khanna had granted interim protection. A retired soldier in Rajkot had lodged a criminal case against Bhushan on April 12 over his tweet which said: “As crores starve and walk hundreds of miles home due to the lockdown, our heartless ministers celebrate consuming and feeding the opium of Ramayana & Mahabharata to the people.” He was referring to Union minister Prakash Javadekar’s tweet that he was enjoying watching the Ramayana and Mahabharata since the lockdown was imposed.

The bench was critical of Bhushan’s comment and said: “Anybody can watch anything on TV. How can you say people cannot watch this or that?” However, according to Bhushan, his tweet was only highlighting the apathy of the minister in handling the migrant crisis and didn’t intend to hurt religious sentiments. He said his genuine criticism had been twisted out of context to give a perverse meaning. The FIR against him amounted to infringement on the fundamental rights of freedom of speech and expression and no offence was made out against him.

These are not the only two contempt petitions filed against Bhushan. In February 2019, Attorney General KK Venugopal had filed a contempt plea against Bhushan for alleging through a series of tweets that he had misled the apex court on the process to be followed in the appointment of Nageswara Rao as the interim director of the CBI. Bhushan had also supported his contention by claiming that he had spoken to Congress leader Mallikarjun Kharge, a member of the selection committee. He claimed that according to Kharge, the selection committee that also comprised Chief Justice of India Gogoi and Prime Minister Narendra Modi had not discussed the appointment of Rao as interim CBI director. According to the contempt petition, an attack on the Attorney General in such a brazen, wilful and malicious way would shake the very foundation of the justice delivery system.

In response to Solicitor General Tushar Mehta’s request to the bench to award  deterrent punishment to Bhushan, Justice Mishra had said that punishment shouldn’t come for lawyers usually. “Contempt is like a brahmashtra. It should be used sparingly so that it doesn’t lose its value. We are mindful of how reckless comments deprive dignity of others without a due process of law… the larger issue here is that media trial decides the reputation of a person who, ultimately, may win in court but has been widely criticised in public. There is no repairing mechanism for that reputation,” Justice Mishra had said. Following the Attorney General’s plea, a contempt petition was filed by the government against Bhushan in the same matter.

During the hearing of the case on March 7, 2019, Bhushan’s counsel, senior advocate Dushyant Dave, had informed the bench of Justices Arun Mishra and Navin Sinha that he was apologising on behalf of his client. However, when the bench asked Bhushan himself to come forward and apologise, he had refused.

Venugopal told the Bench that considering that Bhushan had given in writing to him that he had committed a genuine mistake, he would like to withdraw his contempt plea. But the Bench stated that even if Venugopal decided to withdraw the petition, an issue had been raised before the Court and it would decide the larger issue of whether a person can criticise the Court when a matter is sub judice.

The initiation of these contempt proceedings against Bhushan was followed by a statement by 131 prominent citizens showing solidarity with him. They urged the Supreme Court to reconsider its decision to initiate suo motu contempt proceedings against him and to withdraw it at the earliest. They included former Supreme Court judge Justice Madan Lokur, Delhi High Court’s former chief justice, AP Shah, author Arundhati Roy and former civil servants and academicians.

They said that the contempt proceedings appear to be an attempt at stifling criticism of the Court by Bhushan and by all stakeholders in the Indian democratic and constitutional set-up. They said that Bhushan was a relentless crusader for the rights of the weakest sections of society and had spent his career in pro bono legal service to those who do not have ready access to justice. Bhushan also fought cases in the apex court on issues ranging from environmental protection, human rights, civil liberties and corruption in high places and had been an outspoken champion for judicial accountability and reforms, especially in the higher judiciary.

The signatories added that criminal contempt as an offence has been circumscribed and made redundant in most functioning democracies, such as the US and the UK and the Supreme Court of a country must be open to public discussion without fear of retribution or action of criminal contempt. They said that senior advocate Vinod A Bobde, who was CJI Bobde’s elder brother, had himself stated that there cannot be a situation where citizens live in fear of the Court’s arbitrary power to punish for contempt for words of criticism on the conduct of judges in or out of Court.

Meanwhile, Dave in an interview to Karan Thapar for The Wire, said it was “quite astonishing and disappointing” that the Supreme Court has chosen this moment, in the middle of a worsening Covid-19 crisis, to hear contempt cases against Bhushan. He said that Bhushan was “a thorn in the eyes of all establishments” and that it looked like he was being singled out and victimised.

All eyes are now on the Court.

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