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Thursday, January 28, 2021

Supreme Court of India’s role in Prashant Bhushan case: Explained in 5 points

So finally Prashant Bhushan has been “punished” by the Supreme Court of India. His crime? Well, he posted two tweets criticising the country’s top court and those who run it. Therefore, Bhushan was found guilty. In this article, we shall discuss how this case opened the major faults in India’s top judicial institution.

Here are 5 ways the SC’s role can be criticised in the Prashant Bhushan case

1. Is it a crime to express free opinion?

The SC held lawyer-activist Prashant Bhushan guilty of contempt for his tweets criticising Chief Justice of India SA Bobde and the Supreme Court. As a mark of his punishment Bhushan was fined Re 1 by the top court. The 63-year-old  has been asked to pay the fine by September 15, failing which he will face jail for three months and a ban from practicing for three years. “Freedom of speech cannot be curtailed,” said the Supreme Court while handing down the sentence, referring to “sane advice” from Attorney General KK Venugopal to the court and to Prashant Bhushan. How ridiculous is this when the SC itself in its judgment says freedom of speech cannot be curtailed but at the same time Bhushan is held guilty for expressing his free opinion. Isn’t the top court negating its own stand via the judgment against Bhushan? What does the SC actually want to say?

2. Why can’t SC show its ‘magnanimity’ to India’s poor?

The SC in its judgment said, “[B]y showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of..Rupee one.” Now our question is why can’t the SC show such kindness for the poor who can’t afford the country’s legal services just because of their weak economic background.

India Supreme Court
Photo: The Quint

According to a report, in a 2015-16 survey of nearly 10,000 litigants across the country, the legal advocacy group Daksh found that in a sample where the median annual income was just over Rs 1 lakh annually, the average civil litigant spent Rs 497 per day on court hearings and incurred a loss of in wages of Rs 844 per day. The poor can’t afford legal services even though they deserve justice in many cases and the rich (Nirav Modi, Vijay Mallya, Mehul Choksi to name a few) easily free themselves or avoid getting arrested/imprisoned just because of their money power even though their crimes are known, clear and open to everyone. So, we think the SC should have shown some ‘magnanimity’ to the poor as well because as of now their claim of being generous to Bhushan just denotes double standards and nothing else.

3. Just two tweets, and the top court is shaken, why?

Is our top court’s dignity so fragile that only two tweets comprising 560 characters affected its dignity? We wonder. Just two tweets, quoting the Supreme Court, “can undermine the dignity and authority” and shake the very “foundation of constitutional democracy”? Bhushan’s tweets shook the central pillar of democracy in India. Now after observing this case, ordinary tax paying people of India are most likely to think so if the Supreme Court can’t protect itself from just two mere tweets, how can it protect us? Also, this case can lower India’s image abroad as we are known as the world’s biggest democracy. By holding Bhushan guilty, the SC showed how weak they are; how hollow it has become.

India Supreme Court
The Supreme Court of India. Photo: Twitter

Bhushan criticised the Chief Justice of India SA Bobde through his tweets. A CJI is also a citizen of this country and is not God, so criticism may arise as it’s India, still a democracy, and not the pariah country of North Korea where you get slaughtered for speaking against the ruler. Our question: Is the SC nervous about its own image or functions? If we assume they are not, then why does it bother so much about who says what about the CJI? If somebody talks about CJI Bobde, how can it be that the people of this country will believe not the chief justice and his legacy of work but they will believe some tweets?

4. Indian judiciary notorious for delaying justice, but in Bhushan’s case, SC jumped into action, why?

This is one of the SC’s fastest-handled cases. From the communication of the first tweet to conviction in 48 days — lightning speed that even Chinese criminal courts would envy. While it took 8 years for the SC to declare death penalty for Nirbhaya rape case accused, it took over 20 years to pronounce judgment in Jessica Lal murder case. The Ram Janmabhoomi case continued for 26 years. The number of cases that continued for years in India are many. The lower courts and also the SC often face the criticism of being slow and delayed in their proceedings. But the top court this time killed its old habit quite promptly and jumped into action to give its “verdict”. Is it because, Bhushan’s allegations criticised the top court’s functioning and put a mirror in front of the SC itself?

5. The judgment itself is full of erros

Law expert Professor G Mohan Gopal in his article pointed out how flawed the SC judgment is. He says, the Supreme Court lacks power over contumacious speech when not acting under the contempt of courts act. “Article 19(1)(a) of the Constitution guarantees that ‘All citizens shall have the right to freedom of speech and expression’. It is the heart and soul of a democracy — a most precious right that can be restricted only in the rarest of rare cases, subject to strong safeguards,” he wrote.

He also points out that this judgment is vitiated by conflict of interest. As is well known, and as Advocate Prashant Bhushan’s affidavit in reply appears to have specifically said, he has raised serious questions in the past about the judicial conduct of the presiding judge. So, the concerned judge should not be deciding this matter. It needs to be heard and tried afresh by a bench which does not include the judge whose conduct has been questioned by Advocate Bhushan. And finally, some of the legal standards applied Bhushan’s case to determine criminal contempt are illegal and unconstitutional.

“The judgment has convicted Advocate Bhushan on the basis of several extremely vague and imprecise grounds which have but the farthest logical link, if at all, to the statutory definition of criminal contempt,” he wrote.

We believe the SC judgment has made the call for speaking truth and express free opinion even stronger. Millions of commoners, leaders, activists, academicians and people from all walks of life are raising this point.

On the other hand, the SC has become a subject of mockery and ridicule on the social media platforms for their shoddy judgment. The SC, in order to protect its dignity by handling Bhushan’s case firmly, has only lost its own respect.

 

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