The Supreme Court has been the target of numerous criticisms in recent times and could well have done without the controversy provoked by suo moto contempt proceedings against advocate and left-wing activist Prashant Bhushan.
Democracy cannot exist without the “fearlessness, independence and impeccable honesty” of the judiciary (borrowing from a recent speech by retired justice Deepak Gupta). All democratic institutions need a gadfly to keep them on the straight and narrow. Prashant Bhushan is that gadfly.
Bhushan is occasionally over-the-top, but it is worthwhile to recall his seminal contributions to Indian jurisprudence. By challenging the 2-G spectrum and coal block allocations, he brought the UPA regime into disrepute and raised the all-important issue of sovereignty over natural resources. As an anti-corruption crusader and the moving spirit behind India Against Corruption, he campaigned for the Lok Pal Act.
He successfully challenged the Manmohan Singh government's appointment of P J Thomas as Chief Vigilance Commisioner, citing his alleged involvement in the Palmolein Oil import case and exposed businessman Robert Vadra's land deals. Earlier, his intervention had prevented public sector oil companies from being privatised. He has taken on mega-multinational corporations like Union Carbide and Coca Cola, brought a chief secretary-level IAS officer to justice and urged the apex court to make the Niira Radia tapes public.
As a member of the Committee on Judicial Accountability, he has held justices to the highest standards of the Supreme Court-mandated code of conduct and had campaigned for a statutory mechanism to deal with judges who flouted the code. He ensured that justices were brought under the purview of the Right to Information (RTI) Act and guidelines issued for transparency in recruitment of lower court judges. In so doing, he has helped rather than hurt the judiciary.
His recent tweets, to which the apex court took exception, are not the first occasion when he has criticised the judiciary, or been the subject of a contempt petition. At least five such instances come to mind. His protest against the apex court's verdict in the Narmada Bachchao Andolan case provoked a contempt plea by a fellow advocate. In 2009, another colleague, the eminent adovocate Harish Salve, initiated a contempt petition against him.
For decades now, he has been an irritant to central governments, through his landmark petitions and his outspokenness. On one occasion, he was attacked in his chambers after he had advocated a plebiscite in Jammu & Kashmir. The incident, involving a brutal physical assault, was captured on film. Undeterred, he has since continued to speak his mind.
Bhushan's long history of verbal clashes with the judiciary raises the question of why the apex court has chosen to act now. Nor is he the only offender. Rajeev Dhavan, another fearless critic of the judiciary, was equally provocative. To the extent that, during the Ram Janmabhoomi hearings, he ripped a pictorial map of the disputed site at Ayodhya to pieces. He is famous for his tiffs with a succession of chief justices and retired in a blaze of controversy after the then chief justice Dipak Misra reprimanded him for his “tone of voice”!
A legal news website speculated that the immediate “cause of action” was a tweet denigrating Chief Justice S A Bobde for sitting astride a Harley-Davidson without a mask or helmet during the lockdown. The tweet figured in the hearing on Wednesday, as did an earlier one lamenting the role of the last four chief justices in the “destruction” of India's democracy.
Clearly, their lordships expect social media platforms to censor tweets related to the judiciary. This is next to impossible, given the storm of tweets and retweets on the subject, many of them extremely critical of the apex court's action. A section of the social media hit back, by retweeting the following quote, attributed to the CJI's brother, Vinod A Bobde: “We cannot countenance a situation where citizens live in fear of the court’s arbitrary power to punish for contempt for words of criticism on the conduct of judges, in or out of court.”
The imbroglio also highlights the mess in the Supreme Court Bar Association. From an outsider's perspective, one would expect members of the Bar to have rallied behind Bhushan, whether nor not they agreed with him. But the once-powerful SCBA is so divided that it no longer commands the clout it once enjoyed. Recently, an SCBA resolution taking exception to a controversial speech by Justice Arun Mishra (who also presided over the contempt hearing) sparked a move to eject senior advocate Dushyant Dave from presidentship of the body.
It should be kept in mind that Prashant Bhushan enjoys a high degree of public credibility, even among those who do not share his views. He may be ideologically motivated. He may be a “motor-mouth”. But silencing him is not in anybody's best interests.
The writer is a senior journalist with 35 years of experience in working with major newspapers and magazines. She is now an independent writer and author.