Two notices for alleged contempt of court issued to lawyer-activist Prashant Bhushan has caused a storm with seven retired Supreme Court judges joining 131 signatories who feel legitimate criticism of the apex court is being stifled by using the draconian contempt weapon. Earlier, Justice Madan Lokur who retired from the Supreme Court and retired chief justice of the Delhi High Court Justice Ajit Prakash Shah had protested against these contempt.
Freedom of speech and expression versus contempt of court are seen as vital for free speech and to uphold the dignity of the courts as an institution. Both derive their legitimacy from the Constitution with contempt of court woven into Article 19 (2) as a ground to enact laws to curtail free speech and freedom of the press. As recently as 2018, the Law Commission of India declared the Contempt of Courts Act, 1971 was needed to ensure the decrees of courts were implemented by the executive because the judiciary does not have an enforcing machinery like the police.
Prior to the 1971 Act coming into force, what exactly constituted contempt of court was a mystery under the 1952 Act. This mystery was explained by the one-man Sanyal committee and incorporated into the 1971 Act under the two heads of civil and criminal contempt. Civil contempt is wilful disobedience to any judgment, decree, order, writ or summons of any court of justice whereas criminal contempt is scandalising, prejudicing or obstructing the course of justice or even any attempt to do any of these three things.
Several decades ago, Justice Krishna Iyer had warned that a vague jurisdiction like the law of contempt could be misused to stifle even legitimate criticism of the courts and the judiciary. This apparently has now reached this stage with judges like Justices Madan Lokur, Ruma Pal, Vikramjit Sen, Jasti Chelameswar, Asok Kumar Ganguly, Ajit Prakash Shah, and many other retired judges apart from ambassadors, senior advocates like Gopal Sankaranarayan, Dushyant Dave, Indira Jaising, joining other dignitaries like ambassadors, academics, ministers and politicians urging the Supreme Court to withdraw the contempt notices which will be heard separately on August 4 and 5 by a three-judge bench comprising Justices Arun Mishra, BR Gavai, Krishna Murari.
Among the two contempt notices to be heard is an old 2009 case where Advocate Prashant Bhushan had declared that half of 16 former CJIs were corrupt. His father, former Union Law Minister Shanti Bhushan in Indira Gandhi's cabinet had come in a wheelchair to the Supreme Court to hand over the names of former CJIs who were believed to be corrupt and who were believed to be honest with no definite opinion about two or three others.
The late Arunachal Pradesh Chief Minister Kalikho Pul is believed to have allegedly named former CJIs Dipak Misra and JS Khehar as being some of the allegedly tainted judges whose brother and son respectively sought bribes to deliver a favourable decision in his (Pul's) case. However, there are many question marks over these allegations in the suicide note because judges in the apex court never sit singly. This was one of the defences of former CJI Ranjan Gogoi who was accused of delivering favourable verdicts for the Narendra Modi government as a quid pro quo for a Rajya Sabha seat.
The point here is that 1.5 billion Indian citizens have a right to criticise the institution which is charged with protecting their fundamental rights against an allegedly autocratic government. Advocate Prashant Bhushan has given several examples of institutions such as the Comptroller and Auditor General (CAG), the Central Bureau of Investigation (CBI), the Right to Information Act, 2005 apart from the Supreme Court which he claimed have been weakened by the Narendra Modi government. Bhushan pointed out specific instances when the Supreme Court did not come to the rescue of the beleaguered institutions or the fact that sunshine laws like the RTI Act were diluted.
Of course, the fact that seven retired Supreme Court judges have thrown their weight behind an outspoken Prashant Bhushan is unlikely to provide him relief for the simple reason that the Supreme Court is not compelled to take notice of such developments outside the court room even though some of these dignitaries happen to be retired Supreme Court judges.
Soon after Parliament amended the law relating to Contempt of Court in 2006 allowing truth to be pleaded as a defence when a putative contemnor was issued a show-cause notice, a combative high court judge, Justice Shylendra Kumar openly declared that contempt notices were (sometimes) issued as a means to cover up the misdeeds of judges.
Justice Shylendra Kumar, who incidentally is not a signatory to the petition seeking the contempt notices be withdrawn against Prashant Bhushan, had taken on a former CJI KG Balakrishnan, for refusing to allow the judges' assets to be made public on the Supreme Court website. Justice Kumar had voluntarily declared his own assets. Now, judges assets are uploaded on the official website of the Supreme Court but not all the judges have declared their assets.
The fact that contempt notices were allegedly issued in the past to cover up the judges' misdeeds came back to haunt the former CJI KG Balakrishnan whose kith-and-kin were accused of allegedly minting money during his tenure as CJI. But even after a former CJI asked him to come clean on the controversy, he chose to keep mum on the allegations of corruption against him and his relatives. The income tax department gave him a clean chit.
When the late SH Kapadia was the CJI, an ebullient Prashant Bhushan alleged Justice Kapadia should have reused from hearing a case involving Sterlite company as he allegedly held shares in that company. Several years later, Bhushan and another advocate wanted a former CJI Dipak Misra to recuse from hearing the medical colleges' scam in which a retired high court judge IM Quddusi was arrested by the CBI for using his expertise to allegedly "fix" some cases before favourable benches. When the then senior most judge Jasti Chelameswar passed orders in the case, CJI Dipak Misra overturned these orders on the ground that the CJI was the "master of the roster”. This was one of the reasons for the four senior most judges to hold an unprecedented press conference in January 2018 to declare that "democracy was in danger."
Strangely, after the press conference, Justice Ranjan Gogoi was the only judge to tell the media back in his home state of Assam that everything was all right in the judiciary. Justice Kurien Joseph declared when he retired that the senior judges felt that their CJI Dipak Misra was "being controlled by some unseen hand". But after he took charge as the CJI, Justice Ranjan Gogoi presided over a bench in the absence of a woman who had accused him of sexual impropriety. After an in-house inquiry exonerated the CJI of the charge of sexual impropriety, the woman who had levelled the charge against him was reinstated in her post of junior technical officer in the Supreme Court. Her husband and brother-in-law were reinstated in the Delhi Police. Strange way to reward a complainant whose complaint was found to be without basis.
The point here is that there is no doubt that the Narendra Modi government does have a decisive role in appointment of Supreme Court and High Court judges evidenced by the fact that the file of Justice KM Joseph was not cleared. As a result he lost his seniority in the Supreme Court hierarchy. The present CJI Sharad Bobde has publicly declared the executive had the funds and manpower to deal with the COVID-19 crisis which meant the Supreme Court should not unnecessarily interfere in government functioning.
But as Justice Jasti Chelamweswar had warned, when the judiciary is seen as supporting the executive, democracy is in danger. The CJI'S brother senior advocate Arvind Bobde had agreed with this aphorism when he declared the criticism of an institution like the Supreme Court should not give rise to the fear that the critics would have to face a contempt notice.
In fact, the 131 signatories including the seven retired Supreme Court judges have used this statement of Arvind Bobde to defend Prashant Bhushan whom they have described as a staunch pro bono lawyer who gave a face to poor litigants like the migrants who had the pain of seeing their petition dismissed by the apex court.
Whether Prashant Bhushan's travails may result in refurbishing the contempt law remains to be seen.
The writer holds a Ph.D in Media Law and is a journalist-cum-lawyer of the Bombay High Court.