If indeed that were the case, then yes, the statement could be contemptuous. But how exactly did the court arrive at this finding?

On the date the photo was taken, the Supreme Court was on its summer vacation – and even at that time, the vacation benches of the court were functioning. Even though physical functioning of the court had been suspended because of the COVID-19 pandemic, the court had started functioning through video conferencing. From 23 March to 4 August, there were 879 sittings of different benches of the court, hearing 12,748 matters, including 686 writ petitions. Not only had Bhushan appeared for clients in some of those cases, he had even filed a writ petition of his own regarding a case against him Gujarat over a social media post, in which the court had passed an order on 1 May ensuring no coercive action against him.

The question still remains, of course, as to whether Bhushan’s “anguish” about this situation was a fair criticism, given the pandemic and all that?

If the court was really bothered about trying to answer that question, they wouldn’t just rely on these sparse numbers – which also include hearings conducted after the tweet (29 June - 4 August), by the way, for no logical reason. To truly assess whether this was a fair criticism, the court could have looked at how Bhushan was far from the only person criticising the reduced functioning of the court (take for example Justice AP Shah, the former Chief Justice of the Delhi High Court), as well as the representations made to the court by the Supreme Court Bar Association and the Supreme Court Advocate-on-Record Association. It could have looked at the deluge of criticism heaped on its handling of the migrant crisis during this period, including from retired Supreme Court Justice Madan Lokur – none of which, by the way, resulted in any contempt cases. Lest you think this required the court to conduct some roving expedition to find out who had criticised it, more than sufficient examples were provided to the judges in Bhushan’s 142-page reply affidavit. None of that material is referred to by the judges when assessing whether his criticism was fair, even though that seems like a rather obvious thing to do.

So, again, the question before the judges was: is this a fair criticism to make? Can one say that someone who holds and articulates such an opinion is doing so in good faith?

The judgment utterly fails to assess this question in the 10 pages and 10 paragraphs which are supposed to be devoted to it.

How exactly is that good for a democracy, where public institutions are meant to serve the people? How exactly is that good for a country which is supposed to follow a Constitution and the rule of law, not a country where the powerful can just do as they please?

The court’s judgment is filled with many platitudes. Like how “the Indian judiciary is considered by the citizens of the country in the highest esteem”, how “the Supreme Court is a protector of the fundamental rights”, how the judiciary is the “central pillar” of Indian democracy. We are even told that “if such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations” – which seems a bit of a stretch, but even if a controversial opinion, the judges are entitled to their opinion. It is tragic that the judgment makes many of these platitudes seem rather meaningless. And that after 73 years of Independence, we can’t hold our own controversial opinions like these judges anymore.

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Supreme Court Contempt Verdict Shows Prashant Bhushan Was Right

Everything wrong with the Supreme Court’s verdict, from dodgy numbers to ignoring Bhushan’s reasoning for criticism.

Vakasha Sachdev

Updated: 19 Aug 2020, 12:54 PM IST

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Towards the end of its 108-page judgment holding that Prashant Bhushan is guilty of criminal contempt for two recent tweets, the Supreme Court has this to say:

“The Indian Constitution has given a special role to the constitutional courts of this country. The Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds.”

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Topics: Prashant Bhushan

Published: 17 Aug 2020, 12:58 PM IST