In Reply to Contempt Case, Bhushan Offers Detailed Critique of SC

Activist-lawyer says criticism of SC can’t be contempt, lists controversial decisions from last 4 CJIs’ tenures.

Advocate Prashant Bhushan has come out swinging in his reply to the Supreme Court’s contempt case against him for recent tweets, defending the views expressed in those tweets about current Chief Justice of India SA Bobde’s photos on a superbike, as well as his statement that the Supreme Court has played a role in the destruction of Indian democracy over the last six years.

“It is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution.”

Prashant Bhushan’s affidavit to the Supreme Court

In the reply affidavit dated 2 August, Bhushan has also provided a detailed critique of the Supreme Court’s decisions and decision-making to justify his opinion of the court, including a list of problematic incidents and orders of the court under the last four CJIs, broken down by their respective tenures.

The longstanding activist lawyer, who has advocated for judicial accountability and against corruption for several decades now, submitted that his criticism of the court has been “outspoken” but that it has been thought through and made “with the highest sense of responsibility.”

He has argued that what he tweeted is his bonafide impression of the way the court had been functioning in the last few years when it comes to transparency and acting as a check and balance against the government, especially the role played by the last four CJIs – Justices JS Khehar, Dipak Misra, Ranjan Gogoi and now, SA Bobde – when it comes to this.

“Such expression of opinion however outspoken, disagreeable or however unpalatable [to] some, cannot constitute contempt of court,” he says.

WHAT IS THE CONTEMPT CASE ABOUT?

The contempt case in question was initiated suo motu by the Supreme Court against Bhushan on 21 July. Justices Arun Mishra, BR Gavai and Krishna Murari took up the case and conducted a brief hearing on 22 July, adjourning the case till 5 August so that Bhushan could prepare his reply.

The judges have said the contempt case relates to the following tweets by Bhushan on his Twitter handle:

1. On 27 June, he wrote: “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.”
2. On 29 June, he 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.

During the hearing, the judges said:

“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.”

The court also issued notice to Attorney General of India KK Venugopal, and asked him to assist them in the matter. The same bench also decided to list (separately) another contempt of court case against Bhushan that had been initiated in 2009 and had not been heard by the court since 2012, a hearing in which is scheduled for 4 August.

BHUSHAN’S DEFENCE

The affidavit begins by pointing out that this whole new contempt case originated with a contempt petition filed against Bhushan by a lawyer from Madhya Pradesh, Mehak Maheshwari, which was then converted into a suo motu petition by the court. This original contempt petition was not provided to him to respond, and nor were the administrative orders passed by the court when it decided to take up the case.

Moving on to the tweets, Bhushan explains what each of them is about.

The Superbike Tweet (29 June)

The tweet about the CJI riding a motorcycle “was made primarily to underline my anguish at the non physical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal.”

He notes that the information about the bike belonging to a BJP leader, and that the photo was taken at Raj Bhavan, had been established by documentary evidence on social media, and reported in the media. He also mentions that he had noted that the CJI was seen in the presence of so many people without a mask, to “highlight the incongruity” of him doing so despite keeping the court virtually in lockdown due to fears about the coronavirus pandemic.

Bhushan says that pointing out this incongruity and setting out facts about the incident cannot constitute contempt of court – and if this were the case, it would be an unreasonable restriction on the right to freedom of speech under Article 19(1)(a) of the Constitution.

The Destruction of Democracy Tweet (27 June)

The other tweet consists of three elements setting out his “bonafide opinion” about the state of affairs in India:

1. That democracy has been substantially destroyed in India in the last six years.
2. That the Supreme Court has played a substantial role in allowing this to happen.
3. That the last four Chief Justices of India have played a role in in particular in allowing this.

He goes on to provide a detailed reasoning for these opinions in the affidavit.

CAN THESE TWEETS EVEN BE CALLED CONTEMPT OF COURT?

From the comments made by the bench on 22 July, it appears that the criminal contempt case against Bhushan is for “scandalising or lowering the authority of the court”, which falls within the definitions of contempt as per the Contempt of Courts Act 1971.

However, Bhushan argues that the tweets cannot be considered as contempt for the following reasons:

• The CJI is not the Supreme Court, and so criticising the CJI about what he does during court vacations, or for failing to check the damage being done to Indian democracy, should not amount to contempt of the court itself. “To bona fide critique the actions of a CJI, or a succession of CJIs, cannot and does not scandalise the court, nor does it lower the authority of the court,” he writes, before adding, “To assume or suggest that ‘the CJI is the SC, and the SC is the CJI’ is to undermine the institution of the Supreme Court of India.”
• Retired judges of the Supreme Court and even sitting judges who were part of the court during the tenure of the CJIs in question have criticised the way the court has operated, from recent speeches by Justices DY Chandrachud and Deepak Gupta, to the famous press conference on 12 January 2018, with Justices Chelameswar, Kurien Joseph, Madan Lokur and Ranjan Gogoi.
• While Article 19(2) of the Constitution recognises contempt as a ground for restriction of freedom of speech, this has to be a ‘reasonable restriction’. Preventing citizens from forming and expressing a bonafide opinion about a constitutional institution and discussing this in the public domain to build public opinion for reform, is not a reasonable restriction.
• The Supreme Court’s power of contempt is meant to ensure justice, not suppress voices seeking accountability from the court and offering constructive criticism. The Supreme Court itself in previous judgments has said that the power should be exercised cautiously, and with circumspection, as the respect and standing of the judiciary should come from its own judgments, not clamping down on criticism.

“... the Supreme Court and the High Courts, must vigilantly protect free speech even against judicial umbrage... the countervailing good, not merely of free speech but also greater faith generated by exposure to the actinic light of bona fide, even if marginally overzealous, criticism cannot be overlooked. Justice is no cloistered virtue.”

Justice Krishna Iyer’s judgment in Mishra vs Registrar Orissa High Court (1974), quoted in the affidavit.

• Other democracies (including the United Kingdom, whose jurisprudence on contempt of court formed the basis for the concept in Indian law) have recognised that making ‘scandalising the court’ an offence is unconstitutional and should be abolished as it is inconsistent with the right to freedom of speech and a fair trial, “since it gives judges, alone, among wielders of power, a special immunity from criticism and a power where they sit as judges in their own cause, to punish their critics.”

THE DUTY TO CRITICISE

Bhushan goes on to make a case for why in a time when the conduct of some judges might throw the independence of the judiciary into doubt, “open criticism is necessary to safeguard the constitutional order”. He says that citizens who fail to do so would be failing their fundamental duty to defend the republic, that the responsibility is even higher for a lawyer who is an ‘officer of the court’, and that his tweets are meant to serve this purpose.

“There are moments in history when higher principles must trump routine obligations, when saving the constitutional order must come before personal and professional niceties, when considerations of the present must not come in the way for discharging our responsibility towards the future.”

Prashant Bhushan’s reply affidavit.

Using the concepts explained in the book How Democracies Die by Dr Daniel Ziblatt and Dr Steven Levitsky, Bhushan then sets out why he thinks the BJP government at the Centre since 2014 has undertaken a systematic attack on democracy in India. These include the suppression of dissent using the UAPA, NSA etc and the response to the anti-CAA protests, as well as an assault on India’s institutions such as the CAG, Lokpal, CBI, and of course, the judiciary as well.

THE CJI-BY-CJI TAKEDOWN

Then begins his explanation – supported by over 40 annexures including news reports, court orders, opinion articles and official documents – of the role of the Supreme Court and last four Chief Justices.

Bhushan says he is of the opinion that over the last six years, “we have seen a striking decline in the role of the Supreme Court as being the guardian of the Constitution and rights of people.” And that during the terms of these last four CJIs, there has been an “abdication by the Supreme Court of its constitutional duty to protect basic constitutional values, fundamental rights of citizens and the Rule of Law.”

The highlights from the examples provided by Bhushan for this are as follows:

CJI Khehar’s Tenure (4 January 2017 - 27 August 2017)

• The dismissal of the request for an investigation into the Sahara-Birla diaries which allegedly included reports of payments to PM Narendra Modi when he was chief minister of Gujarat. Heard by Justice Khehar before his appointment, then assigned to a bench headed by Justice Arun Mishra which dismissed it.
• The handling of the Kalikho Pul suicide case, and the accusations made by him against Justice Khehar and others of corruption. Despite Pul’s wife sending a complaint for an inquiry on the administrative side of the Supreme Court, under the In-House Procedure, CJI Khehar had it listed on the judicial side as a case, causing her to withdraw the complaint.

CJI Misra’s Tenure (28 August 2017 to 1 October 2018)

• The way the medical bribery cases were handled, in which CJI Misra himself was potentially implicated. After CJI Misra asserted his right as Master of the Roster to decide which judges would hear the case even though it related to him, petitions asking for a detailed inquiry were dismissed by a bench of Justices Arun Mishra, RK Agarwal and AM Khanwilkar.
• The four judges’ press conference in January 2018, when they warned of the last two CJIs abusing their power as Master of the Roster to selectively assign important and politically sensitive cases to benches “of their preference” without any rational basis for such assignment.
• Examples of this kind of problematic listing in the affidavit include the listing of the Judge Loya investigation case before Justice Arun Mishra, even though more senior judges were available, and the land acquisition cases controversy, where Justice Mishra questionably overturned four years of precedent.

CJI Gogoi’s Tenure (3 October 2018 - 17 November 2019)

• The routine acceptance of information in sealed covers, including the Rafale case, the Alok Verma ‘CBI vs CBI’ case, and the Assam NRC matters.
• The failure to list urgent and important cases like the challenge to the constitutionality of electoral bonds, the challenges to the ‘abrogation’ of Article 370, and the way in which habeas corpus petitions (particularly from Jammu and Kashmir) were not considered a priority.
• The Ayodhya verdict of 9 November 2019, which held the site to belong to the Hindus despite holding that the demolition of the Babri Masjid was illegal, used dubious legal reasoning, didn’t name the author of the unanimous part of the judgment, and included an anonymous addendum that held that the disputed structure was the holy birthplace of Lord Ram – even though that wasn’t an issue for legal determination.
• The way in which the sexual harassment case against CJI Gogoi was handled including him sitting on a bench and criticising the complainant, and his ‘quid pro quo’ nomination to the Rajya Sabha.
• The modification of the Supreme Court Collegium’s recommendations for appointments and transfers of judges, following objections from the Centre, including the Justice Akil Kureshi controversy.

CJI Bobde’s Tenure (18 November 2019 - present)

• The refusal to stay the Citizenship (Amendment) Act 2019 despite all the challenges to it, and not list the petitions either. In addition to this, the CJI refused to hear petitions regarding reports of police violence against protesters in Jamia Millia University and Aligarh Muslim University.
• The handling of the migrant crisis after the imposition of the nationwide coronavirus lockdown, with a Supreme Court bench headed by CJI Bobde accepting the government’s claims that there were no more migrants on the road, and that the exodus was caused by fake/misleading news, on the basis of which several petitions were dismissed. This included the failure to issue guidelines on inter-state travel, including directions to the railways not to charge migrants. The court only took up the matter suo motu after strong criticism, including from retired judges.
• The ‘outsourcing’ of a review of the 4G ban in Jammu and Kashmir to the executive (not by a bench on which the CJI was sitting) itself, and a failure to consider the necessity and proportionality of the move despite its severe consequences.