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.
Also read: Tweets were against personal conduct of judges & not judiciary, Prashant Bhushan tells SC
“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.