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.”
These words are undoubtedly true. The Constitution has given a special role to the apex court, as a protector of fundamental rights – BR Ambedkar after all said that this power of the courts is the crux of the Constitution, without which it would be a nullity. The Supreme Court is indeed tasked with ensuring that the Executive and the Legislature are kept in check, that they follow the rules laid down by the Constitution.
But it is precisely because these words are true, that the court’s decision to punish Bhushan for his criticism of the courts, is such a grave injustice. For this is exactly what the longstanding lawyer-activist’s criticism of the Supreme Court is about – its failure, according to him, to abide by these very constitutional duties.
And in the judgment by which it has found him guilty of contempt, we can find evidence of the very criticisms that have been levelled against the court, by Bhushan and many others.
A BAD BEGINNING?
The problems with this judgment begin with the registration of the case itself. It all began when an advocate from Madhya Pradesh, one Mehek Maheshwari, filed one of the most atrociously worded petitions of all time in the Supreme Court, complaining about Bhushan’s tweet dated 29 June regarding Chief Justice of India SA Bobde and his viral photo with a Harley Davidson superbike.
This petition should have been thrown out by the court at the outset, as it had not been filed with the prior permission of the Attorney General of India. Somehow, it still found itself listed on the administrative side of the court, which then sent it to the judicial side, which then decided to make it a suo motu case, and added on the other tweet that got the judges so riled up.
While the judgment by Justices Arun Mishra, BR Gavai and Krishna Murari points out that no prior permission from the Attorney General is required for a suo motu case to proceed, they have failed to explain why the original petition was not rejected for being defective.
While this may seem like a trivial point, it is actually symptomatic of a key point of criticism of the court – how cases dealing with fundamental rights and significant constitutional issues are being ignored, but cases like this one (which several former judges have argued is not a matter of urgency) are scheduled with alacrity.
That this particular case went through several levels of decision-making so swiftly, while cases relating to Kashmir (including habeas corpus) took forever and are still in cold storage, the 140+ CAA petitions are being ignored, and electoral bonds have been all but forgotten by the court, speaks volumes of the court’s focus on protecting people’s fundamental rights.
A SPOON OF SCENE-SETTING, WITH A DASH OF CONVENIENT SIDE-STEPPING
After spending 25 pages justifying the taking up of the case despite the original petition being defective, the judgment then moves on to the law on contempt as laid down by the courts over the years.
This starts with the point and purpose behind punishing contempt of court: “to prevent interference with the course of justice and for maintaining the authority of law as is administered in the courts”.
The judgment points out that contempt is not meant to provide judges with a shield against imputations against them as individuals, but to protect against anything which would lower the authority of the court and weaken the sense of confidence which people have in the administration of justice by them. This is the concept of ‘scandalising the court’, which is what Bhushan’s tweets were accused of doing.
The judges specifically note in Para 22 that the concept of scandalising the court has been recognised as one of the ways in which the administration of justice can be interfered with, under English law going back to 1742.
Interestingly, however, because in doing this they are relying on an old Supreme Court judgment from the 1950s, they fail to mention that in 2013, this aspect of the law on contempt was abolished in the UK, after it was found that to be an unjustified restriction on freedom of expression.
The quoting of judgments and the culling out of relevant principles continues for another 50 pages, before, in para 60, the judges move on to whether the tweets by Bhushan amount to contempt in light of these guiding principles. They frame the issue before them as follows:
“After analysing the tweets, the questions that we will have to pose is, as to whether the said tweets are entitled to protection under Article 19(1) of the Constitution as a fair criticism of the system, made in good faith in the larger public interest or not.”
Which is totally what it was supposed to do in a case on criminal contempt. It’s unfortunate then, that it totally fails to conduct this exercise.
MISSING THE WOODS FOR THE TREES
The court begins with the tweet of 29 June, of CJI Bobde and the superbike. In this tweet, Bhushan shared an image of CJI Bobde sitting on a Harley Davidson superbike, commenting that the CJI was sitting on a bike belonging to a BJP leader without a mask or helmet, at a time when the Supreme Court was “denying citizens their fundamental right to access Justice” because it was in lockdown mode.
The judges clarify that they don’t have anything to say about the first part of the tweet, as it could be said to be a criticism made against the CJI as an individual, not as Chief Justice of India. This may seem baffling as, if anything, this is the part of the tweet that you’d think the court would be upset about for imputing a connection between the CJI and a political party, but fortunately for Bhushan, those observations were completely factual, having been reported in the media and on social media.
So what exactly does the court take umbrage at? Their problem is with the words about the CJI denying people access to justice by keeping the court in lockdown mode – the judges hold that this is a “wild allegation”, which is “undoubtedly false, malicious and scandalous.”
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.
There is no other word to describe this approach other than nitpicking. Ok, you could also call it deflection, if you like, because it really doesn’t engage with what Bhushan was saying here.
Bhushan’s tweet hardly said that no cases were being heard by the court. So pulling out statistics like this isn’t the masterclass in refutation the bench evidently seems to think it is. On pure numbers, this is in any case a significant reduction in the number of hearings and cases decided, so there is no dispute that the access to justice has been reduced, even if there was no choice but to do so.
The fact that the photo was taken during the vacation is also of no use because Bhushan’s tweet, again, isn’t about that particular day, but the overall situation at the court, where the court had clearly said it would only hear urgent matters for most of the period even before the summer vacations. Even once the urgency condition was removed, the numbers have obviously been severely reduced.
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.
In light of those things, any reasonable person, even if they disagreed with the conclusion, would agree that Bhushan wasn’t just talking out of his hat.
And yet the judgment fails to do this basic bit of analysis, which again, is symptomatic of yet another increasingly-common criticism of the Supreme Court.
The examples of this include its acceptance without question of blatantly untrue statements from the government on the Rafale case and its failure to assess the legality of the restrictions in Jammu & Kashmir.
THE REALLY SCARY PART
Despite its complete failure to engage with the points raised by Bhushan on the superbike tweet, at least some sort of effort was made, you know, with those numbers and the ‘oh-the-photo-was-taken-during-the-vacations’.
By the time the judgment arrives at its analysis of the other tweet, however, it decides to abandon even that little bit of effort.
What did Bhushan say in that tweet? According to the judgment, the tweet said:
“When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
Now sure, one can see why the judges would be unhappy with this. There’s a rather small sample size of people who would like being termed responsible for the death of democracy, and no matter what anyone says about our judges, one can’t imagine they’d be one of those.
But look, this wasn’t some foul-mouthed tirade spewing insults and invective at the court and the last four CJIs. The language used itself isn’t bad enough to render it contemptuous – it’s the content of the statement.
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.
Step 1: Muddy the Waters
It first muddles the issue by saying that one has to look at the extent of the publication and the nature of the person making the statement, when assessing the question of good faith. Which makes no sense.
Yes, the extent of publication and the nature of the person are important when trying to decide if the administration of justice is affected (thereby attracting contempt charges). But in terms of deciding whether the statement itself was in good faith, these are irrelevant, if the statement can be shown to have some basis.
Why should the fact that Bhushan’s tweet can reach millions of people matter if what he said was true? Why should the matter that he is a lawyer of 30 years’ standing stop him from saying what he thinks is wrong with the court?
Step 2: Ignore the Affidavit
The remaining paragraphs on the second tweet only deal with the potential effects of Bhushan’s tweet. That it can shake public confidence in the institution of the judiciary. That it can give judges the impression that they will not be protected from malicious attacks.
Nowhere is there any analysis of whether a reasonable person might actually have cause to believe that the court has played a role in the undermining of democracy – it’s treated by the court as a given that any such statement is untrue, which is a bit rich.
In case anyone forgot, four judges of the Supreme Court held a press conference back in January 2018, in which they warned of how the judiciary was facing threats to its independence and criticised the CJI at the time.
Again, the court doesn’t need to engage in some mind-reading exercise to ascertain why Bhushan thinks this is a fair criticism.
Bhushan has spent 87 pages in his reply affidavit giving his reasons for why he thinks the apex court has failed in its constitutional duties in recent years – the very constitutional duties that we pointed out at the start of this article.
This includes details of all the controversies at the apex court during the tenures of the last 4 CJIs, politically related or otherwise, from the handling of the Kalikho Pul suicide note (CJI Khehar), to the assignment of sensitive cases (CJI Dipak Misra), the nomination of CJI Gogoi to the Rajya Sabha after retirement, and the handling of the Kashmir cases and migrant crisis (CJI Bobde).
Yet the court completely ignores these points, without even trying to offer up a counter.
Step 3: Avoid the Question
All it says is that “We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate.” But as the judges themselves note, that first part is the claim that there is an attempt to destroy democracy going on in this country, it’s the other two parts that bring the Supreme Court and its last 4 CJIs into it.
Just because you don’t want to get into the first part, doesn’t mean you can assume that the other parts of the tweet are untrue. And nor can the court just ignore the first part, since that is vital to understanding whether or not Bhushan’s opinion is bona fide.
The court wouldn’t have had to agree with Bhushan’s finding that democracy is being destroyed, it merely had to decide whether Bhushan was saying that on the basis of some material, and Bhushan has provided them with more than enough material. Let’s also remember that he’s far from the only person to hold such an opinion as well. Commentators like Pratap Bhanu Mehta, historians like Ramchandra Guha, all of them have made similar arguments about the state of Indian democracy and the BJP’s actions.
It’s not illegal (yet) to have such a negative opinion about the BJP and the Indian government, a fact that the Supreme Court, of all institutions, is supposed to be aware of. Nor is severe criticism of the Supreme Court illegal per se. At least, it wasn’t till now, but this judgment could mean that.
The problem, at the end of the day, isn’t about the conclusion reached by the court. It could well be that after assessing what Bhushan had to say, the courts said all those things were irrelevant, or baseless, or insufficient to justify a statement like the one he made. It may well be that this was part of their reasoning of the judges. But this has to be stated in the judgment, because that’s the whole point of judgments, of what are called reasoned orders.
And yet again, this is symptomatic of a major criticism of the court’s modus operandi in recent times.
In the migrants cases, for instance, the Supreme Court was willing to blindly accept any statement made by the government to them about the status of the workers, whether it was that none of them were on the road anymore (by 31 March), or that the exodus of migrants to their homes was caused by fake news, not real problems, or that migrants weren’t being made to pay for railway tickets – despite any and all evidence to the contrary.
Decisions were made without any reference to the material provided by petitioners, and no reasoning for why that evidence wasn’t sufficient – just like here.
THE LASTING RAMIFICATIONS OF THIS JUDGMENT
In the days since the verdict, there has been a great deal of criticism for it, but this hasn’t been a universal reaction. Many have celebrated the judgment, and you should absolutely not draw any conclusions from the fact that they are, pretty much all of them, supporters of the current government – ie, the ones who Bhushan openly accuses of destroying democracy in this country.
What they fail to realise, though, is just how dangerous this judgment is. They are, in football parlance, playing the man, not the ball. And while that may feel good now, because they don’t like Bhushan, they are forgetting the issue that was really at hand in this case: are you forbidden from criticising the Supreme Court in strong terms, of accusing them of failing their duties, even if you have detailed reasons for your criticism?
And what the court’s judgment says, is yes, you are. If we don’t like what you say, we will hold you in contempt without any reference to your justifications, to your arguments, to your defences.
The ramifications of such a decision for free speech are immense. Take a simple example:
- Even the Supreme Court accepts that its ADM Jabalpur judgment during the Emergency was wrong, even the Supreme Court accepts that it failed to perform its duties to protect constitutional rights during the Emergency was wrong.
- But if a lawyer with major standing, someone like the late Arun Jaitley, were to say that the court failed to protect citizens and allowed the undermining of democracy during the Emergency, they would be guilty of contempt of court according to the logic of this judgment, as such a statement would still undermine people’s faith in the judiciary.
A judgment like this will have precedent value, and somewhere down the line, maybe not now, this can be used against even those who are celebrating it. Times change, politics change, so what happens then? Do we, the citizens of a constitutional democracy with freedom of speech, really want to be legally forbidden from speaking our minds about the courts, even if there is evidence of judicial misconduct?
The fact that the court has made Bhushan’s long standing as a lawyer a factor in their verdict only makes it all worse. Any reasonable person would agree that we need informed analysis of what’s going on in the courts, and the ones best suited for this, for helping us understand judgments and the legal process, are reputed lawyers with many years of experience.
But now, if any of them have a critical view of the functioning of the court, no matter how well-reasoned, they will think twice before saying it. This particular chilling effect has already been pointed out by senior advocates Sanjay Hegde, Indira Jaising and Navroz Seervai.
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.