Last week, India’s Attorney General K.K. Venugopal made the unusual move of filing a contempt plea in the Supreme Court against activist-lawyer Prashant Bhushan, calling for action over some of his tweets.
Bhushan had earlier tweeted to accuse the AG of making a “wholly false statement” in the court in a case pertaining to the appointment of the interim CBI director.
See the letter of LOP Kharge re the unilateral appointment of Nageswara Rao as interim Director CBI by govt, w/o going through HPC of PM, CJI & LOP. Yet govt produced minutes of meeting saying that HPC approved appt. Seems govt gave fabricated minutes to court! Contempt of Court! pic.twitter.com/If7TFO5VfO
— Prashant Bhushan (@pbhushan1) 1 February 2019
I have just confirmed personally from the Leader of Opposition Mr Kharge that no discussion or decision in HPC meet was taken re appt of Nageswara Rao as interim Director CBI.The govt appears to have misled the court and perhaps submitted fabricated minutes of the HPC meeting! https://t.co/MbEC5YLjkD
— Prashant Bhushan (@pbhushan1) 1 February 2019
If that wasn’t enough, the Narendra Modi government followed suit, and filed a plea of its own seeking a similar contempt action against Bhushan.
While it observed that “contempt is a bramhastra”, which should “not be used ordinarily”, the bench of two judges nevertheless issued a notice to Bhushan.
At a time when the court has often spoken about the need for transparency in the justice system, and led many to expect it can uphold rightful dissent as an extension of the citizens’ freedom of expression, the move against Bhushan has reopened the entire debate on whether the top court should even be accepting such frivolous pleas.
By now deciding to examine the larger issue of whether or not people can and should comment on pending court cases, despite the AG’s request that he doesn’t want to press his plea, the Supreme Court may have taken the slippery slope.
If a couple of tweets prompt the Supreme Court to start thinking of ways to discipline lawyers, and make it wonder that such remarks could influence the course of justice in sub-judice matters, what are the possibilities that the public’s faith in the institution would grow?
The fear is that the debate may soon deteriorate into one where the court, under far greater scrutiny than ever before, could open itself to the charge that it is trying to suppress valid criticism. The court certainly would not want that.
It doesn’t require the IQ of an Einstein to figure out that Bhushan, through his tweets, wasn’t interfering in the “administration of justice” or “scandalise the court”, prerequisites for the criminal contempt of court.
Bhushan was, instead, accusing the government of having “misled the court and perhaps submitted fabricated minutes of the HPC (high-powered committee to select the CBI director) meeting”.
If the court began exercising their contempt jurisdiction every time a lawyer or a common citizen accused the government or its functionaries of lying, we would need many more jails to accommodate just those accused of this offence.
And how can the country’s top court even mull such a flawed idea when anybody with a smartphone can comment on anyone and everything in this digital age?
If protecting the dignity of the institution is important, then the need for institutions in a democracy to open themselves up to greater scrutiny and criticism is equally important, even if there remains the danger that, sometimes, overzealous citizens may cross the Lakshman Rekha.
For didn’t the great Lord Atkin say, “The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
Shouldn’t the judges do well to remember the words of the great jurist, Lord Denning, on criticism? “We do not fear criticism, nor do we resent it. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest,” he had said decades ago.
Or the views of the Constitution bench of the Supreme Court in Baradakanta Mishra versus the Registrar Of Orissa High Court, wherein the court talked about the difference between justice and judge?
“…the keynote word is ‘justice, not ‘judge’; the ‘keynote thought is unobstructed public justice, not the self-defense of a judge; the cornerstone of the contempt law is the accommodation of two constitutional values – the right of free speech and the right to independent justice. The ignition of contempt action should be substantial, and mala (fide) interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.”
Hasn’t the world moved on from the times when the Supreme Court decided that the “purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law”?
Do we really need guidelines to fix comments on court cases? Shouldn’t the courts be more interested in issuing guidelines on how to get their orders implemented from the government or tackling the propensity of the government to sit on or completely ignore recommendations of the Supreme Court collegiums for appointments to the higher judiciary?
A chart that was part of the report of the Law Commission of India when it had examined the Centre’s last year’s proposal to amend the Contempt of Courts Act, 1971, to restrict the definition of contempt only to “willful disobedience of directions/judgment of Court”, makes for an interesting reading.
This chart shows that as of April 2018, there were 683 civil contempt and just 15 criminal contempt matters pending in the apex court. The corresponding all-India figure for high courts was in thousands (civil contempt) and a few hundred for criminal contempt.
Since civil contempt is the power granted to courts to deal with “willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court”, shouldn’t the court be focused on ensuring that those in position of power didn’t take its directions so lightly?
Courts don’t need to be in an adversarial relationship with the public or lawyers. The glare, instead, should be on the government.
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