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SC Reserves Judgement in Prashant Bhushan’s Contempt of Court Case

Judges can’t go to press and defend themselves: Justice Arun Mishra

The Supreme Court on Tuesday reserved its verdict in Prashant Bhushan’s contempt case over his two controversial tweets against the current CJI and four previous Chief Justices of India.

Supreme Court says it is tolerant to criticism

The crux of the Supreme Court’s views is that making controversial public statements about the functioning of the judiciary and its officers can potentially destroy the sanctity of the Apex Court. It will have the effect of degrading public confidence in the institution. SC clarified that it welcomes criticism but emphasized that the dignity of the Court cannot be compromised. The three-Judge Bench led by Justice Arun Mishra reminded the fraternity to respect the system. 

Justice Mishra added, "We're not separate from Bar, we have come from the Bar [itself]. After doing every sacrifice, what do we obtain? We cannot go to Press...You are part of the system, you cannot destroy the system. We have to respect each other."

“For how long the system will suffer all this? I am retiring in a few days. Will it be okay if you or others start attacking me? 

The three-Judge Bench further stated that it found Advocate Prashant Bhushan’s statements and justifications painful to read. It stressed on the fact that Mr Bhushan has over 30 years of experience. A man of his standing and repute can affect public perception when he makes statements in the press.

In response to the public outcry over Supreme Court asking Mr Bhushan to reconsider his tweets and apologize, Justice Mishra asked if there is anything wrong with seeking an apology. He also questioned if apologizing for hurting someone was a reflection of guilt.

He referred to Mahatma Gandhi’s principles to mend situations when someone got hurt. Interestingly, Mr Bhushan had earlier quoted Mahatma Gandhi to make his stance clear when the Apex Court had given him a three-day window to reconsider his public statements.

In this regard Justice Mishra said, “Tell us, what is wrong in using the word apology?” he asked. “Will that be a reflection of guilt? Apology is a magical word, which can heal many things... If you have hurt anybody, you must apply balm. One should not feel belittled by that.”

Mr Bhushan firmly stands by his tweets

Senior Advocate Rajeev Dhawan representing Mr Bhushan made it clear that Mr Bhushan stands by his tweets. In fact, Mr Bhushan issued a supplementary statement on August 24, 2020, when the Supreme Court deadline for reconsidering his statements got over.

Mr Bhushan did not find it sincere to offer an apology for saying something he truly believes in. In his supplementary statement, he reiterated his defiant response to the August 20 order;  his statement says, “If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in the highest esteem."

In a Facebook live stream for Students Federation of India on the topic "Decoding Democracy" held on August 22, Mr Bhushan had implored everyone to fight the power with truth even if it meant going to jail.

He asserted that if constructive criticism has no place in a democracy, then it will be tough to exercise our fundamental right of free speech.

In yesterday’s hearing Advocate Dhawan was critical of Supreme Court’s August 14 order which found Mr Bhushan guilty of Contempt of Court over his tweets. Mr Dhawan argued that giving an order like asking someone to reconsider his public statements within a 2-3 day time frame is wrong jurisprudence.

He advocated the value of constructive criticism in promoting the effectiveness and efficiency of the justice delivery system through the following remark.

“When your Lordships retire or even when you don't retire, there will be articles saying that the Court decided some cases correctly or some cases incorrectly. They can't be stopped. Court can survive only on responsible criticism."

Even the AG Mr K. K. Venugopal asked the three-Judge Bench to let Mr Bhushan off with a warning.

Advocate Dhawan was of the view that sentencing Mr Bhushan for Contempt in the instant case would make him look like a martyr, which must not happen.

Mr Bhushan receives support from the legal fraternity

This contempt case has reignited a debate in media regarding the contours of free speech and as to what constitutes fair criticism. Senior Advocates, former Judges and renowned practitioners, everyone seems to have an opinion. In fact, Seven former Judges endorsed a statement by 131 individuals, which included the likes of jurists, activists and lawyers. This statement was issued to stand in solidarity with Mr Bhushan after he was issued a contempt notice in the case.

Last week, even the Bar Council of India issued a statement in support of Mr Bhushan. In its statement, BCI said that it is deeply dismayed by the manner in which the Supreme Court has exercised its sou moto jurisdiction against a member in the legal profession.

Notably, the Supreme Court’s use of the law on Contempt came under the spotlight in Justice Karnan’s case also. It received its fair share of criticism for using the suo moto power indiscriminately.

After Bar Council’s statement in the present case, State Bar Councils are also following suit to advance their support to Mr Bhushan.

The common sentiment is that SC’s order inadvertently attempts to restrict the dialogue between the citizens of this country and the government authorities.

So, the burning debate around this case seems to be precariously poised. While freedom of speech is not an absolute one, how far is the Court justified in taking cognizance of harsh criticism on a social media platform? 

In any case, the sanctity of the Court must ultimately prevail in the eyes of public. 

In the present scenario, James Madison’s golden words seem quite apt. He was the man behind enactment of the first Amendment of the US Constitution.

‘Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true than in that of the press. It has accordingly been decided, by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigor of those yielding the proper fruits."

For the uninitiated, Mr Bhushan courted controversy on Twitter by taking a jibe at the CJI of India on his picture on a Harley Davidson bike without a mask and a helmet. In  another tweet, he alleged four retired Chief Justices of damaging democracy under the rule of the present government.

SC initiated (suo moto) action against Mr Bhushan as it believed that his tweets were made with the attempt of unnecessarily scandalising and tarnishing the image of the Supreme Court of India that could destroy the faith of the public in the judicial system.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house

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