Fair criticism is not contempt
Mohammed Hassan | Pixabay

Lawyer-activist Prashant Bhushan has stirred a hornet's nest by arguing that fair criticism of the Supreme Court without malice is not contempt. Or that the CJI is not equal to the entire Supreme Court so that criticising him does not constitute contempt.

For those who came in late, the Supreme Court has listed two contempt cases against Prashant Bhushan for hearing although the top court is still in lockdown mode. Bhushan's lawyer senior advocate Dushyant Dave told the media there were 19,492 cases awaiting disposal in the top court as on June 1, 2020. Hence, taking up these two contempt cases against Bhushan was "surprising" as the Supreme Court registry refused to list a large number of cases before the judges on the ground that they were not life-and-death matters.

One of the contempt cases is a 2009 case where Bhushan was interviewed by Tehelka. He alleged eight of 16 CJIs were corrupt. This case was last heard in 2012, so that when the COVID-19 cases in Delhi and the rest of India were on the rise, the Supreme Court showed unseemly alacrity in taking up both contempt cases against Bhushan. Dave pointed out Bhushan had initiated many cases of social causes before the Supreme Court. "If he was pro-establishment, Bhushan may have got a Padma Bhushan," Dave claimed.

Without trying to defend Bhushan, it is worth pointing out that in neighbouring Pakistan, a Supreme Court judge sworn in in 2014 has been attacked by the ISI to prevent him from taking over as the CJI in 2023. He is Justice Qazi Faez Isa who has delivered judgments against the ISI and the Pakistan Army which have both propped up Imran Khan as their Prime Minister. A 10-judge bench of the Pakistan Supreme Court rejected a Presidential reference to allow corruption charges to be framed against this judge who is perceived as upright but anti-establishment, which is what good judges and lawyers who do not represent the state should be.

Justice Arun Mishra who heads the three-judge bench hearing the contempt cases against Bhushan is widely perceived as being the exact opposite of his Pakistani counterpart, Justice Isa. Justice Mishra had heaped lavish praise on Prime Minister Narendra Modi during a global conference of judges in Delhi several months ago.

In fact, Dave has sought that Justice Mishra recuse himself from hearing the contempt cases against Bhushan, alleging there was a history of perceived hostility between the two in the court room.

Referring to the Delhi riots which began on February 23, culminating in 53 deaths, Bhushan alleged the Delhi Police joined the rioters in destroying CCTVs so there would be no record of their misdeeds. A hospital was blocked to prevent a certain community from gaining access to it and during all these goings-on, "the Supreme Court remained a mute spectator," alleged Bhushan. He also offered a qualified apology for his tweet of CJI Sharad Arvind Bobde astride a high-end motorcycle belonging to a BJP leader by saying he (Bhushan) did not notice the mobike was on a stand and the CJI was only sitting on it but not riding it as he (Bhushan) had earlier alleged.

Prashant Bhushan filed a thoroughly researched reply pointing out the registry had not furnished him with a copy of the order placing the file before the judicial side of the court. "Without being furnished a copy of the order, I am constrained from filing my reply," declared Bhushan.

In his 142-page affidavit-in-reply, Bhushan pointed out that the attorney-general had not yet given sanction to prosecute him for alleged contempt. In a solidarity statement, 138 dignitaries, a few of them being retired Supreme Court judges like Justices Jasti Chelameswar and Madan Lokur, opined the contempt notices issued to Prashant Bhushan were unwarranted.

Like Justice Isa in Pakistan, Prashant Bhushan is seen as a rebel. Unlike Isa, Bhushan will never become a judge, though he exposes judicial shortcomings. Justice Isa got a death threat soon after the 10-judge bench of the Pakistan Supreme Court quashed proceedings against him for allegedly not disclosing his wife Sarina Isa's property holdings in the UK with those of his children in his wealth tax returns. The man who made a video said Justice Isa should be shot in public and if he visited Rawalpindi, he would be shot.

India has fallen 10 ranks to the 51st position in the democracy index global rankings prepared each year by the Economist Intelligence Unit. So, Bhushan is arguing from a position of strength when he claims that his positing that the last four CJIs contributed to the weakening of democracy in India was an expression of his opinion. He pointed to the Rafale and Ayodhya verdicts to embellish his claim while alleging petitions challenging the abolition of Article 370 in Kashmir were not promptly heard. He also pointed to retired Supreme Court Justice Kurien Joseph declaring that the 45th CJI Dipak Misra seemed to "be controlled by some unseen hand" while assigning sensitive cases which was what provoked the four Supreme Court judges to hold a press conference in January 2018. "Are you justifying the reason for holding the press conference?" Justice Mishra asked Dushyant Dave in the court room.

With Shubhanso Pul, the son of the late Arunachal Pradesh Chief Minister Kalikho Pul, found dead in mysterious circumstances on February 23, at his flat in Brighton, Sussex, London, l'affaire Pul has got curiouser and curiouser. Shubhanso is the son of Pul's first wife, Dangwimsai Pul. She wrote a letter in 2017 to the four judges who held the 2018 press conference, demanding a CBI probe into the allegations made by her late husband allegedly implicating Justices J S Khehar and Dipak Misra for seeking bribes. She conspicuously avoided sending the letter to the CJI Khehar and Justice Dipak Misra. When the president of the National Lawyers’ Campaign for Judicial Accountability and Transparency Mathews Nedumpara filed a writ petition in the Delhi high court seeking that the allegations levelled in the 60-page suicide note be investigated, the 11 petitioners had to pay costs of Rs 25,000 each and had their petition unceremoniously dismissed.

Justice Sanjeev Sachdeva observed the 11 petitioners were "busybodies" making "wild allegations" but did not initiate criminal contempt against the petitioners as sought by the CBI. Unlike Pakistan which ranks 108 out of 165 countries on the democracy index, with Sri Lanka and Bangladesh ranking 69 and 80 respectively, India is a "flawed democracy" if the EIU rankings are to be believed. Whether flawed or not, issuing contempt notices for criticising the apex court does have the effect of stifling all discussion or legitimate criticism of the Supreme Court and its functioning. The apex court has "broad enough shoulders" to take criticism of its functioning in its stride without showing sensitivity to all shades of criticism. As Bhushan has himself pointed out, the 138 dignitaries who include at least seven retired judges like Jasti Chelameswar, will all have to be issued contempt notices for expressing solidarity with the beleaguered Prashant Bhushan.

When the government breaks the law, it invites contempt for the law because it ensures every citizen must march to its own interpretation of the law. Prashant Bhushan has alleged the Supreme Court has failed to protect democracy which is what Justice Jasti Chelameswar had declared with his three brother judges in 2018. Bhushan has gone further to accuse CJIs J S Khehar, Dipak Misra, Ranjan Gogoi and Sharad Arvind Bobde of not standing up to the government.

The writer holds a Ph.D in Media Law and is a journalist-cum-lawyer of the Bombay High Court.

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