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Wednesday, April 14, 2021

Prashant Bhushan – Supreme Court Row – Everything you should know

We just celebrated the 73rd Independence of India. The nation is the world’s largest democracy, which means freedom of expression is the right of every citizen. But how independent are we expressing our opinions freely? Can we criticize those in the authority? What do we have to face if we call a spade a spade, that too about those in power?

In this article, we shall discuss all these through the recent incident of the Supreme Court holding lawyer Prashant Bhushan guilty of. The incident has triggered a lot of questions about whether freedom of speech is practiced in India at all.

Here’s the complete analysis of the Supreme Court vs. Prashant Bhushan episode in 9 points.

1. So what exactly happened?

Recently a three-judge bench led by Justice Arun Mishra found two tweets by Bhushan amounting to “serious contempt of court” for two tweets which the court claimed were based on “distorted facts”, caused a “scurrilous/ malicious… attack” on the “entire Supreme Court”. It had the effect of “destabilising the very foundation” of the judiciary, the court added. The next hearing on the quantum of punishment will be held on August 20. The bench spoke about the importance of protecting people’s faith in the Supreme Court and of responding “firmly” to unjustified attacks.

2. What did Bhushan tweet about?

The first tweet referred to a photo that went viral in June. The photo showed Chief Justice of India SA Bobde astride a parked motorcycle. The SC said the tweet’s first part about the CJI riding a motorcycle “without a mask or a helmet… could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI”. In the second part of the tweet, Bhushan said the photo came “at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice”. The court said this part was a criticism of the CJI in his capacity as the country’s CJI. Many leaders are still tweeting supporting Bhushan’s free expression of opinion.

3. The Supreme Court’s justification

The court claimed that during the nationwide lockdown it held altogether 879 sittings and heard over 12,700 cases. Therefore,  claim that CJI Bobde kept the apex court in “lockdown mode” is “patently false”. Bhushan himself, the bench added, had appeared for several matters through video conferencing.

“In this premise, making such wild allegations thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous,” it said, reads the order.

4. SC says tweets ‘undermines dignity and authority’ of court

The apex court claimed that Bhushan’s second tweet sought to allege that the Supreme Court and the “last four chief justices” had played a “substantial role” in “destroying” India’s democracy. The bench explained that, “According to him (Bhushan), the first part of the tweet contains his considered opinion, that democracy has been substantially destroyed in India during the last six years. The second part is his opinion that the Supreme Court has played a substantial role in allowing the destruction of democracy, and the third part is his opinion regarding the role of the last four Chief Justices in particular in allowing it.”

The SC said the tweet criticised the “institution of the Supreme Court and the institution of the Chief Justice of India”. “In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law,” the bench opined.

5. The sharp rebuke by the apex court

The SC said not dealing strictly against malicious attacks against the judiciary “may affect the national honour and prestige in the comity of nations”. Thus, it held Bhushan guilty of criminal contempt for expressing his free opinion about India’s judicial system and the present and former CJIs through his tweets.

The court said Bhushan, holder of a three-decade career as a lawyer, should have been more responsible in expressing his thoughts/opinion. Also, Bhushan chose social media to express his opinion from where his remarks instantly reached millions of people. “The publication by tweet reaches millions of people and as such, such a huge extent of publication would also be one of the factors that requires to be taken into consideration while considering the question of good faith.”

The court said Bhushan is a veteran lawyer with 30 years of experience and hence such tweets “are not expected” from a lawyer of his stature. The bench added, Bhushan is “expected to act as a responsible officer of the court”. “The alleged contemnor being part of the institution of administration of justice, instead of protecting the majesty of law, has indulged into an act, which tends to bring disrepute to the institution of administration of justice.”

6. Twitter faced SC rage too, but discharged

The SC also initiated contempt proceedings against Twitter. But Twitter said it just carried the posts by Bhushan and was not the author of the tweets. The social media platform told the bench that it had blocked access to the two tweets by Bhushan and disabled them. This is how Twitter was discharged. “It has also showed bona fides immediately after the cognisance was taken by this court as it has suspended both the tweets. We, therefore, discharge the notice issued to the alleged contemnor No.2 (Twitter Inc),” the court said.

7. What Bhushan said in his reply to SC?

As per reports, replying to the notice, Bhushan told the court in the affidavit dated August 2 that the June 29 tweet on photos of Chief Justice of India SA Bobde seated on a bike “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”. Bhushan also referred to earlier cases on contempt of court to justify his stand. To know his complete reply in his affidavit, click here.

8. Where is the right to free speech?

In a report, senior advocate Gopal Sankaranarayanan said, “The judgment suggests that free speech, which has been exercised thus far, needs to be bound and restricted. And one has to be very careful about mentioning judges’ names or their activities. This particular judgment suggests that the judge and the court are the same thing. And, therefore, a statement about one person, whether factual or not, is treated as contempt of court.” Right from educationists, historians, poets, artists and people from all walks of lives have raised question whether Indians can really express their opinions independently.

Senior advocate KTS Tulsi was of opinion that the Supreme Court “should not be afraid of criticism”. “Criticism is twice blessed. It blesses the one who criticises and also blesses the one who is criticised. That’s the only way institutions can grow. The Supreme Court is a public institution and each of them (the judges) are open to criticism… So these kinds of things should not become the subject matter of contempt.”

9. How does a legal expert decode what SC said?

Faizan Mustafa, vice-chancellor of NALSAR University of Law, is an expert on constitutional law, criminal law, human rights and personal laws. He decoded the SC judgment in a report.

According to Mustafa, criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 means any publication which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings, or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. He cited, in 2006, the government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in public interest. The phrase used by the SC, “scandalising the court” has not been defined, he claimed. Mustafa also cited that in Shiv Shankar (1988), the SC held that criticism against the court that does not impair and hamper the administration of justice cannot be punished as contempt.

We all know, the Constitution of India provides the right of freedom, given in Article 19 with the view of guaranteeing individual rights that were considered vital by the Constitution makers. The right to freedom in Article 19 guarantees the freedom of speech and expression, as one of its six freedoms. Therefore, Bhushan’s issue raises so many questions, whether a simple tweet can really obstruct the administration of justice, and whether judicial dignity is so very fragile that it would get lowered in people’s view because of an activist-lawyer’s personal opinion.

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