New Delhi: A three-judge bench of the Supreme Court led by Justice Arun Mishra Monday expressed hope that the 2018 press conference held by four sitting senior-most judges was the first and last time when judges have gone to the media.
Justice Mishra was indirectly targeted by the four judges — justices J. Chelameswar, former CJI Ranjan Gogi (then a justice), M.B. Lokur and Kurien Joseph — when one of them admitted that the reason for their open revolt against the then CJI Dipak Misra was the allocation of a PIL, seeking an inquiry into the judge Loya case, to the former, who was then a junior judge.
On Monday, the bench expressed concern in its 82-page verdict imposing a fine of Re 1 on advocate Prashant Bhushan as punishment in the contempt case against him.
It even rejected Bhushan’s submission that it will invite criticism if punishment is inflicted upon him, saying the court was open to fair criticism. Free speech, it said, cannot be denied but at the same time cannot be used to denigrate institutions. It has to be within constitutional limits, said the court.
The judges also chastised Bhushan for sharing his affidavit with the media before they could take it up in an open-court hearing, said the bench, adding that he had resorted to “unscrupulous methods” to influence the bench in a sub judice matter.
The judges even frowned upon their former colleagues, who released statements to the media in support of Bhushan.
Held guilty on 14 August for his two “malicious” tweets against the present CJI as well as four former CJIs, Bhushan was served with a contempt notice on 21 July, after the court took cognisance of the two tweets.
In response, he furnished a 132-page affidavit, explaining the context in which he had put out the two tweets, and claimed the judiciary as an institution had collapsed, becoming an extension of the executive.
To support his argument, Bhushan had extensively referred to the 2018 press conference in his affidavit. They had questioned the then CJI Misra’s discretion to allocate “sensitive cases” to junior judges.
“We hope it was the first and the last occasion that the judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when allegations made, if any, publicly cannot be met by sufferer judges. It would cause suffering to them till eternity,” read the SC’s verdict.
Also read: What is an apology? Prashant Bhushan’s contempt case reveals true meaning of the word
SC weighs in on its 2018 verdict
The top court weighed in on its 2018 verdict by a three-judge bench led by former CJI Dipak Misra that rejected a CBI inquiry into the death of special CBI judge Loya, who died while he was conducting the trial in the Sohrabuddin Sheikh encounter case.
Union Home Minister Amit Shah was named as an accused in the case, but was later discharged.
Justice Mishra’s bench noted the judgment, authored by Justice D.Y. Chandrachud, took a serious exception to Bhushan’s demand for recusal of two judges, including Chandrachud, from hearing the case because both belonged to the Bombay High Court.
Justice A.M. Khanwilkar was the other judge who, according to Bhushan, should not have heard the case.
“It was observed that the conduct of the petitioner and the intervenor is scandalising the process of the Court and would prima facie constitute criminal contempt,” the bench said.
However, on a dispassionate view of the matter, the court did not initiate contempt proceedings, it added, while rejecting the request of senior advocate Rajeev Dhavan, representing Bhushan, to withdraw or recall its 14 August judgment that convicted the lawyer for contempt.
But it showed “magnanimity” by imposing a “nominal fee” of Re 1.
‘Attempt to influence the court’
On Dhavan’s insistence to consider statements of two of the four judges — Justices Lokur and Joseph, who participated in the press conference, released in support of Bhushan — the bench said it has to be “impartial towards the crime of voice”.
“Public interest demands that there should be no interference with the judicial process, and the judicial decision should not be pre-empted or circumvented by public agitation or publications,” said the bench.
Judges need to be uninfluenced by the statements published in various articles, the bench said, as it came down heavily on Bhushan for sharing his affidavit with the media prior to the hearing of the case.
To release statements to the press in a sub judice matter in advance has the effect of interfering with the judicial process and the “fair-decision”. It is clearly an attempt to coerce the decision of the court by the influence of the media, which cannot be conducive for fair administration of justice, the bench said.
In a serious case of criminal contempt, particularly after the conviction, sharing of affidavits indicates that the “tolerance of the court is being tested for no good reason”, the judges said.
“While exercising our judicial functions, we cannot take into consideration whether we will be praised or criticised for the judgment which we render. We are not expected to decide the matter on the basis as to whether there will be criticism of the judgment or not,” the bench said, unmoved by Dhavan’s warning that the bench will invite criticism if it inflicts punishment upon Bhushan.
Also read: Like in Ayodhya verdict, author of judgments in Prashant Bhushan contempt case not named
‘Expression has to be within constitutional limits’
The court did not dispute Bhushan’s submission that free speech is essential to democracy. However, it reiterated, when freedom of speech is sought to be abused, particularly when it is sought to scandalise the judicial institution as a whole and the persons who are part of it cannot defend themselves publicly, then free speech can be restricted in accordance with the law.
“We cannot control the thinking process and words operating in the mind of one individual, but when it comes to expression, it has to be within the constitutional limits,” the judges said.
In Bhushan’s case, the judges noted, he made allegations against the retired and sitting judges, who cannot enter into a public debate or go to the press. Judges, the bench said, can express opinion through their judgments.
And, when judges — both sitting and retired — cannot speak, they cannot be made to suffer the loss of their reputation and prestige, which is an essential part of the right to live with dignity.
“It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media,” said the bench.
The court put the burden on the Bar to be the spokesperson for the protection of the judicial system. Judges can be criticised but motives to the judges need not be attributed, as it brings the administration of justice into disrepute, the court added.
“Hostile criticism of the judges or judiciary is definitely an act of scandalising the court,” the court said.
Also read: ‘Insincere apology will be contempt of conscience’ — Prashant Bhushan refuses to apologise
After a long long time, an incident like 3028 judges press meet occurred because there were judges who thought it fit to express their views on the real things happening in the otherwise closed for public consumption. They are certainly not interested in their post-retirement perqs is obvious. Similar things are bound to happen in future whenever the court needs such exposure. It will not be the last. That is certain.
The days of independent judges and fair judgements have gone into history. Perhaps we can write a book about it and make it a text book for legal students at graduation level.
Justice Mishra had split apart the judiciary by his leanings towards the government in power. CJI Gogoi may have shown partisanship by accepting a Rajya Sabha nomination but Justice Mishra will most probably be rewarded much more.