It is a grim irony that, in its insistence to cling onto public faith, the Supreme Court saw fit to publish a judgment mired in troubling notions of free speech, condemning senior lawyer Prashant Bhushan to criminal sentence in summary fashion, with negligible analysis of the defence put forth by him. Bhushan’s crime? Committing the error of critiquing a democratic institution, perhaps a tad overzealously. This, in essence, is the story of the Supreme Court’s decision in the suo moto petition against Bhushan, tried and convicted for the offence of contempt of court as a result of a mere two tweets.
The decision of the Supreme Court could benefit from deeper analysis. Yet, in doing so, I must heed editorial warning not to ‘overstep any bounds’, lest I meet a similar fate as that ordained for Bhushan – an illustration of the chilling effect that pervades India on its 73rd anniversary of freedom.
“The SC in Lockdown mode”: Tweet 1
The first tweet for which Prashant Bhushan was sanctioned ostensibly criticised the Chief Justice of India (CJI) for riding an expensive motorcycle, belonging to a politician, without mask or helmet, having simultaneously kept the Supreme Court in a state of diminished functioning, thereby affecting the rights of citizens to access justice. The Court, while considering this critique, decided to split the tweet into two halves.
Ignoring the first bit, whose accuracy cannot really be contested, it chose to earnestly focus on the latter half of the tweet, which criticises the Chief Justice for inhibiting access to the Supreme Court by keeping it in “Lockdown mode”. Noting that, despite the prevalence of a pandemic, the Supreme Court had been functioning through virtual hearings – indeed, even the contemnor had participated in such hearings – the bench decries this allegation of a denial of justice against the CJI as “undoubtedly false, malicious and scandalous”.
Yet, in his Reply Affidavit, Bhushan states in clear terms that the tweet had to be read as a whole, contextually: that while the Chief Justice thought it necessary to restrict functioning of the Supreme Court, he himself was out in public bereft of mask, surrounded by people. It was the juxtaposition of these scenarios that formed the basis of the criticism, a point entirely missed by the judgment. Surely, it cannot be scandalous to point out that the Chief Justice applied differing standards of precaution for litigants and for himself?
Moreover, it was never Bhushan’s contention that the Supreme Court had been entirely locked out, as the bench seems to assume; rather, his point was that, even with virtual hearings, the Court’s ability to process cases was significantly diminished, thus hampering access to justice. This difficulty has also been noted by the Supreme Court Bar Association and Supreme Court Advocate-on-Record Association, which passed resolutions testifying to the hindrances that arise in presenting a client’s case effectively through virtual presentations.
By artificially creating a cleft in the tweet and offering unsatisfactory analysis on the truthfulness of the claim, the Supreme Court seems to be insinuating that the subject of its ebbed functioning during the coronavirus pandemic, and the potential consequences this may have for litigants seeking redress, is entirely off-limits. Surely, this isn’t the apt standard to stymie criticism in a free democracy.
Also read: ‘Not dealing with such attacks may affect India’s honour’ — why SC found Bhushan in contempt
Damage to democracy: Tweet 2
Prashant Bhushan’s second tweet focused on the role of the four preceding chief justices in what he described as a “destruction” of Indian democracy. The Supreme Court took particular umbrage with the allegation that they may hold responsibility for such destruction, finding that the tweet “damage[s] confidence in our judicial system and demoralize[s] Judges of the highest Court by making malicious attacks”.
The Court’s lack of analysis on the legitimacy of this critique, however, is troubling; at no point did it pause to verify whether the allegation may hold water, or may even be considered plausible – a startling lack of reflexivity considering the degree to which such criticism has been repeatedly aired in public. Indeed, how can one analyse the malicious or benign nature of the critique tacit within the aforesaid tweet without considering its factual verity?
The allegations against the Supreme Court in recent years have been grave: ranging from corruption and apathy to bias and external influence. The CJIs in question have faced public criticism for the same, at times even at the hands of their colleagues. Are ordinary citizens of India not afforded the same luxury? And are these not sufficient grounds to warrant, at the very least, a discussion on the Supreme Court’s role in the alleged erosion of Indian democracy? Preserving the majesty of the Court cannot go so far as to preclude discourse on whether the Court may have shirked its institutional responsibilities.
Also read: Why I look forward to Prashant Bhushan’s contempt case hearing, if it’s full and fair
Public faith in the Supreme Court
A final matter that warrants consideration is the short shrift given to previous decisions of the Supreme Court on this subject.
In D.C. Saxena, the Court noted that criticism of the institution is permitted “even if it slightly oversteps its limits”. Echoing this sentiment, in Baradakanta Mishra, it was held that not every attempt to vilify a judge is contempt: “the Court will have also to consider the degree of harm caused as affecting administration of justice and, if it is slight and beneath notice, Courts will not punish for contempt”. As observed in the Mulgaonkar case, it is only where there is a “scheme or design” to intentionally harm the image of the Court that this jurisdiction is to be exercised. Even while doing so, “the benefit of the doubt [is to be] given generously against the judge”.
Although the judgment in Prashant Bhushan’s case cites each of these statements, it proceeds to entirely ignore their normative implication. The judgment offers no analysis on why the harm caused by Bhushan’s tweets is of a sufficient degree to warrant contempt proceedings, nor does it seek to strike a balance between the needs of fair criticism and the image of the Supreme Court. One cannot but sense an acerbic smack on the palate while reading the Court’s pronouncement that Bhushan’s “tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy”. Is our democracy so frail to be fractured by a mere 280 characters of text?
Famously, Justice Krishna Iyer warned that, even though the powers of contempt were intended to reaffirm public faith in the Supreme Court, if misused, they might well lead to public hostility against the institution. This was precisely why the UK Law Commission recommended the abolition of ‘scandalising the court’ as an offence, in 2012: the harm it carried to the image of the court far exceeded any utility it could offer. This fear might well be borne out in the present judgment of the Supreme Court of India – if the concern is one of public faith in the administration of justice, one wonders whether the conviction of Bhushan for contempt may do more harm than good.
The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.
On 22-23 Jan 2011 Forum for Fast Justice had held a national convention on judicial reforms at Mumbai. The theme was Save Judiciary Save Nation. I had participated in it wearing a T shirt with two messages one each on the front and back. The front one asked : Who will judge the judges? The one at the back read: Contempt of Court anathema in democracy, democracy demands Contempt of Citizen (Prevention of) Act. I had 100 T shirts which I had planned to sell on no profit, no loss basis so that the campaign could be sustained. I could sell less than 20, distributed 70 free of cost and kept 10 for myself.
Prashant Bhushan was there and I had a short chat with him but it was clear that he did not like laymen criticizing the judiciary of which he was also a part.
I hold the judiciary responsible for the abysmal state of law and order in the country. Its failure to deliver justice is not only mocked at by the lay man through expressions like tariqe pe tariqe, it has also enabled the executive to get away with blatant abuse of authority. By the admission of a former CJI himself 20 % judges are corrupt and there is no indication of how he had arrived at this figure or what has been done to eradicate it. Of course, the list of failures is too big to be included here and hence not attempted.
I have no doubt that unless the judiciary is overhauled lock, stock and barrel there is no hope for this country, may be even with the honest effort of a hundred Modis.
It wouldn’t take more than two words or a dozen characters to commit contempt of court. Lawyer Bhushan pushed his luck on Twitter. His fallacious ‘ad hominem’ logic and ‘vipreeta buddhi’ became his ‘bete noire’. Access to justice or damage to democracy due to any CJI cannot be treatised or decreed on abstract Twitter posts. These are engaging issues that need to be debated in Parliament or before Law Commissions. Perhaps, a 2000 word essay where all issues that affect acçes to justice or harms democracy needs to be assessed and discussed. Prashant Bhushan suffers from a deplorable lack of logic. His conclusions are hasty and in bad faith. He deserves the highest punishment. It will serve him right.
On a name of Freedom of Speech, idiots like Nhusan can make a mockery of judicial system. He did not apologies . However, wanted SC to give him a freedom so he can spit filth from his foul mouth. If he is so keen on freedom of speech, then, He should try his freedom by spitting any filth against Islam, or Molavies. He will learn his lesson in heart bit when his house gets burned and he looses his life for good. He must be punished just to set a president and prevent other idiots to start such nonsense.
If somebody really has sense, he will know that even ONE WORD can create irreparable damage not just to democracy but to even mankind. However, such common sense is missing among certain section of intelligentsia who think they have every right to throw muck on anybody and can walk free in the name of freedom.
Danish protests, Bangalore riots all came from one or more twitter posts. Only people who want violence to keep their pot boiling want it.
As a layman, I wonder: why our courts are using so much of its time in (i) on aforementioned matters (ii) on writing such a lengthy judgement given the fact that:
(a) there are huge number of critical cases pending in the courts and
(b) many much more important decisions concerning the people of India are lying unresolved!
This write up contains a failed typical communist one sided ideology, which gives write to comment in democracy but does not bother about the responsibilities of democracy.
It is not the length of the tweet..but intent and content that does matter and attract attention of contempt. Prashant Bhushan some have appears have a personal grudge against the current judicial set up. His comments are not only sarcastic but personal, vindictive and hitting. They are unacceptable tweets..but may be a warning from SC bench is right to Bhushan like
In 1789, Marie Antoinette said “If they don’t have bread, let them eat cake”. That brought about a revolution called French Revolution. This imbecile should know that words can be bullets, bombs, missiles if the circumstances are apt.
Funny ! Supreme court should only take up issues of constitutional interpretation and validity and nothing else. What are the high courts for then ?
On a broader matter, India should cast off the colonial mind set, the victim mind set, and the false pretense of respecting the cruel moghul remnants. The moghul and colonial remnants are destroying the country and their manifestations are many, including the colonial institutions, moghul practices, monuments, etc. Time to replace them all.
Let me not blame Mr Prashant Bhushan for his tweets.He is correct and there is no justification in extending a punishment.
Let me not blame the Supreme Court,as the Honourable Judges are correct in their judgement.
Let me blame the people,who are aware Democracy is in danger,they will lose their Fundamental Rights ,but, not bothered to express their opinion when they are losing their Freedom day by day.
It is the ordinary people who faught for democracy when emergency was imposed and went to jail. How many of the judiciary has come out to fight emergency and went to jail in India. I am volunteering to take the sentencing with Shri Prashant Bhushan. and appreciate his stand not to take mercy.
Like father like son. Shanthi Bushan sir for inspiring your son to follow to tread the path you stood.My dear fellow citizens these are the people who’s relentless work to express their opinions which they feel is not in consonance to the spirit of the constitution framers ensured the rights of the citizens, the produce of relentless sacrifices of our forefathers .
You have not understood what the case is about, It is not about the tweet made which can be his personal opinion on a judge but he went over board in condmening the institution which was uncalled for. He is a crooked lawyer. Who will condemn him??
If you are volunteering to take the sentencing along with Shri Prashant Bhushan. nobody would oppose it. But which jail you would go. Who would bear the cost of your unauthorised stay..
Some people consider themselves above law. Specially such activist lawyers. Only reason is they know laws and their loopholes, so did not fear law and court. This fearlessness powers them to criticize anything and everything without fear. Common people did not understand law and always confused and hence scared. There are always some gray areas in laws which are travelled with caution since the boundaries are not clear. Such gray areas are used by these people for their benefit and escape.
Ok and what powers make an SC Judge to ride an expensive bike of governing party’s son and that’s too without helmet, without mask??? Why is he above law??? Why can’t you see any fault in him, just bc your bhakt of that party?
Well, keep your eyes shut… Soon they’re coming to you too!
Please understand before you comment and start calling people Bhakth,. Any one has a right to make a personal comment on the judge. But the comment was made on the institution which is a lie
Uncomfortable truth
This particular comment from a mullah, which is usually opposite to general opinion, is a matter of real Uncomfortable truth of a anti democratic communist or a mullah’s one sided opinion, who wishes to enjoy the fruits of democracy without being concerned for his (or her) responsibilities in a democratic society.
Why only judges and their institution be protected from contempt. Why not the politician also. Is it that politician is selfish and judges noble??
Agreed, the democracy is in shambles because of 280 word tweet.
A recent example is the of Bengaluru riots perpetrated by Indian Arabs.
The original tweet had semi nude goddess pictures which should outrage each bhartiya instead we all heard was usual secular cabal.
This Indian Arab community organized within hours in thousands and burnt people property police down in protest.
Our shackled democracy watched in horror and our institutions cannot deliver action or justice.
Instead we have the print calling navin riot accused but fact is he was responding to the original semi nude pictures of goddess.
MFH was a known artist and he may have drawn pictures which offended some. But there was no reason to think that the artist was trying to deride goddess or provoke anyone’s belief.
Of course if whole colony is burnt down for comments by hitherto unknown person, it doesn’t look civil either. It is beyond comprehension, a tweet is all it took for such large arson. Or something is amiss !!
How do do you become so sure on MFH? He had never done this on his child abuser pedophiliac prophet, he wisely choose to do only on Hinsu Goddess.
When this happens on the child abuser pedophiliac prophet, then the public reaction becomes opposite, consider the other side of MFH’s act.
How do do you become so sure on MFH? He had never done this on his prophet, he wisely choose to do only on Hindu Goddess only.
When this happens on the prophet, then the public reaction becomes opposite, consider the other side of MFH’s act.
I have wondered how such a bad mouth person can be Supreme Court lawyer. Not only Prashant Bhushan but many others like him need to be restrained from make false allegations against the democratic institutions.
The strategy is always the same….cross every boundary, break every rule an when you are called out, play the victim card.
Mr Bhushan deserves to grace Tihar Jail with his presence. let him become a Bhushan of Tihar Jail.
Correct
Bhushan is a repeat offender. He has been warned/ reprimanded by the SC several times. But he refuses to mend his ways.
The system is rotten totally.Supreme court is no exception !! All the rotten items are there in the chair.From top to bottom it is broken…spoiled…perished..and above all brain washed …brain washed by Nagpur men !! So there is no doubt about the fact that people of India have no faith upon this institution now.Agree or disagree SC has exposed itself completely.
agree..the SC should ask the taxpayers whether the tweets damaged the democracy or the SC itself damaged the democracy
CRITIISIGNG AN INDIDIVIUAL IS DIFFERENT FROM CRITISNIGNG AN INSTITUTION.THIS IS FUNDAMENTAL FACT.
Punish or exonerate , Prashant Bhushan will be there for ever.His voice can’t be suppressed !!SC know it better !!
If you have the right to support a person like prashant bhushan, others have equal right to oppose him
Punish Bhusan, if he will be there for ever, then his punishment also. Communist ideolody glorifies this voice and all, even if it is malefic and is without his democratic responsibilities, which the constitution expects him to follow, but he choose to not to.
Mao Tze Dong brutally murdered 30 lakhs of his own citizen through Communist ideolody, thats why it has failed everywhere in the world.
Criticizing CJI on his verdict is a ctiticism to the post he holds, thereby, to the institution he holds. So Bhusan and all others like him, deserves punishment.
Enough is Enough, they must contain these loudmouths with their unsubstantiated, mindless comments, seeing everything under suspicion may be ok with politics but not with the judiciary. Though there are some drawbacks & corruption allegation not only in the form of money, existed at the lower level, but not at a higher level.
Almost a decade back there was a serious allegation on the CJI whose son in law, lawyers used to demand & accept the money to get a favourable judgement, of course, the then CJI has no knowledge about it, chances were a few judgement might have got in their favour more because of merit of the case. Being the lawyers themselves they have approached such cases/guys only.
We have a lot of respect for Shanthi Bhushan & to some extent to Prashant who started initially well then turned into mischief monger which was proved during & after his association with Arvind Kejriwal whom with another guy he thought of remote control him. But Arvind has realized this at right time & boldly put a break on these guys.
As the present CJ has served a long period in Mumbai he is aware of tricks & trades of the lawyers seen a lot. Not only Prashant such action will be a caution for the others who thought of following his line.
Prashant was overconfident & thought of he can get through but CJI/Judicioury nailed him down. He deserves it. Tx.
If the free speech and freedom of expression comes with reasonable restrictions, then someone must have the authority to decide the what the reasonable restrictions are in each case.
Who will decide, who that someone should be? It cannot be Mr. Bhushan or Mr. Yadav or a gruop of 150 other left liberal intellectuals.
In democracy it can only be the majority or a select gruop of people like JUDGES duly selected by the established system.
Unless the opposition has a strong convincing argument to swing the majority in their favor, them must accept the decisions which are not in their favor gracefully.
OUR DEMOCRACY IS STILL NOT READ TO ACCEPT THE MAJORITY RULE.
It is incredibly funny how in India you can criticize anyone and everyone and when you get the rap for unfair criticism, you will FoE warriors fighting for you across different media. The funny part is same people wouldn’t come to protect people when they criticize a particular religion and it’s 7th century ideas and dictats their clergy issue. I guess FoE changes by the situation.
It is better the decay of institutions like SC must happen by those sitting on such constitutional posts so that the public at large will understand its serious consequences sooner than later, because Indian democracy has not matured to understand such perils in advance.
Interesting take on the larger picture. Yes, I believe you do have a point. At the time of independence, we Indians never fully understood the nature of the sacrifices that being a democracy would entail. We accepted democracy simply because we trusted our founding fathers but kept taking things for granted by continuing with our old feudal mindset. In the Nehruvian or post-Nehruvian era, we should have exhausted the light of our democratic candle and the candle did briefly go out with the emergency but Mrs Gandhi inexplicably overturned it and for 3-4 decades we pulled on by letting the candle burn low. Now our collective lack of respect for democracy and it’s institutions have started to truly bear fruit and darkness has descended. It will get darker and darker till such a time arrives when Indians mature and learn to truly value their democracy and plurality. Only in the light of that reform will we be able to understand the care which we ought to give and the sacrifice we need to make to keep the democratic flame burning. Until then we will have to manage with our dysfunctional systems and their attendent perils.