Prashant Bhushan Judgment Shook The Public Confidence In The Judiciary And Administration Of Justice system: AILAJ

All India Lawyers Association for Justice is deeply dismayed and anguished by the Supreme Court judgment of the Bench comprising Justices Arun Mishra, B.R. Gavai, and Krishna Murari, holding Prashant Bhushan guilty of contempt of court for two tweets. The judgment has the effect of stifling free speech and fair criticism.

The first tweet: “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”.

This the Court has found contemptuous, since the statement that the CJI kept the Supreme Court in lockdown mode, denying citizens their fundamental right to access justice is “patently false” even to Prashant Bhushan’s “own knowledge”. This conclusion is puzzling at best, as during the pandemic, unplanned lockdown and the migrant worker tragedy crisis, the Supreme Court was subject to fair criticism by concerned citizens and the media for not responding in a timely and adequate manner to issues of life, livelihood and dignity. Even former judges of the Supreme Court expressed their anguish at the performance of the Supreme Court under lockdown.

In his opinion piece “A supreme failure”, appearing in the Deccan Herald, Jst. (Retd.) Gopal Gowda, had this to say: “…ADM Jabalpur may stand overruled on paper, but in practice, it still appears to be the guiding light for the Supreme Court. Nothing else explains the bizarre orders and observations currently being reported from the Supreme Court… ADM Jabalpur will no longer be remembered as the darkest moment of the Supreme Court. That infamy now belongs to the Court’s response to the preventable migrant crisis during the COVID-19 pandemic.

On the heels of such criticism from various quarters, the Supreme Court, took suo motu cognizance of the miseries of migrant labourers. Even this belated action by the Supreme Court was criticized by its own brethren. Jst. (Retd.) Madan Lokur questioned whether this was“face-saving attempt to atone for past follies?. He went on to further opine that: “Given the circumstances, was it not the constitutional obligation, not duty, of the Supreme Court – a court for the people of India and not a court of the people of India – to ascertain that a few lakhs (not thousands) of migrants are well taken care of, physically and emotionally? It is not that the court was expected to disbelieve or distrust the establishment represented by no less than the solicitor general, the court was only required to ensure through the principle of continuing mandamus that the solemn assurances given to it are faithfully carried out. Sorry, the court completely failed in this – forgot what public interest litigation is all about. If a grading is to be given, it deserves an F.

To the criticism of the judges has been added the voice from the lawyering fraternity. The Supreme Court has failed to acknowledge that lawyers across the country are up in arms in regard to the functioning of the Courts. Of course, the threat of Covid-19 looms large, but so does lack of access to justice and the impoverishment of the majority of legal fraternity starved of livelihood. AILAJ itself has held a national protest day on 17th August, demanding financial assistance for lawyers and law clerks, opening of the Courts and for making video conferencing an accessible medium. With a fully functional executive taking decisions with far-reaching implications for the rights and liberties of the people, the lack of a fully functional judiciary is detrimental to society. There can be no administration of justice, without access to justice.

The second tweet: “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

This tweet, the Supreme Court has concluded, gives the impression to an ordinary citizen, that when the historians in future look back, the impression they will get, is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had more particular role in the said destruction.

The Supreme Court arrives at the above conclusion after holding that the emergency era has been considered as the blackest era in the history of Indian democracy. Yet the role of the Supreme Court during Emergency, has been subject to severe criticism, especially its 1976 judgment in the ADM Jabalpur case where the Supreme Court held that with the proclamation of emergency, and thesubsequent suspension of enforcement of Article 21, no writ lies in court against detention of a person. This was finally overturned by the Supreme Court in 2017 in the Puttaswamy case (commonly known as the Privacy case). In the Privacy judgment, Jst. Chandrachud reflects that when histories of nations are written and critiqued, there are judicial decisions at the forefront of liberty, yet others have to be consigned to the archives, reflective of what was, but should never have been. Jst. Sanjay Kishan Kaul concurred with the overruling of the ADM Jabalpur case “which was an aberration in the constitutional jurisprudence of our country and the desirability of burying the majority opinion ten fathom deep, with no chance of resurrection.”. Unfortunately, thisjudgment represents that very resurrection in no uncertain terms.

This tweet is an expression of Prashant Bhushan’s opinion of future historians about the destruction of democracy in India and the role of the Supreme Court during this time. This crystal-ball gazing cannot be deemed to be contempt, more so, since the Supreme Court simply ignores the explanation for the tweet in Prashant Bhushan’s reply affidavit.

Again what Prashant Bhushan has expressed has also been expressed by judges of the Supreme Court themselves. Remember that fateful 12th January 2018, when the country witnessed the unprecedented press conference, on the lawns of the Supreme Court, by four senior most judges of the Supreme Court who said that the situation in the Supreme court was “not in order” and many “less than desirable” things have taken place and unless this institution is preserved, “democracy will not survive in this country”. The Judges released a letter “… to highlight certain judicial orders passed by this Court which has adversely affected the overall functioning of the justice delivery

system and the independence of the High Court besides impacting the administrative functioning of the Office of the Hon’ble the Chief Justice of India”. The letter goes on to allege that: “… There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches of “their preference” without any rationale basis for this assignment. This must be guarded against all costs.”.

One is hard put to see what in Prashant Bhushan tweet, is to be considered as “an attack made to shake the confidence that the public at large has in the institution of judiciary” which is not already there in the public domain, including comments by Honourable retired justices.

It is necessary to recall that the Supreme Court in Dr. D.C. Saxena’s case, emphatically held that citizens are entitled to bring to the notice of the public the infirmities, including all of the above, the judiciary suffers from and the “… best way to sustain the dignity and respect for the office of judge is to deserve respect from the public at large by fearlessness and objectivity of the approach to the issues arising for decision, quality of the judgment, restraint, dignity and decorum a judge observes in judicial conduct off and on the bench and rectitude.” However, the judgment of the SupremeCourt is far from this approach.

It is also a point of law established by the Supreme Court that the necessary ingredients that constitute contempt of court in India is that the speech must interfere with the administration of justice. This principle was reiterated in the case of Brahman Prakash Sharma v State of Uttar Pradesh. In P.N. Dua v Shiv Shankar and others, the Court clearly held that mere criticism of the Court does not amount to contempt of Court. In fact the Court contended that in a free marketplace of ideas, criticisms about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice.

The very thought that courts and judges are beyond all reasonable criticism, is in itself violative of the spirit of democracy and accountability of institutions. As Justice Hope observed in the case of Monday 1972, “The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.” Under the circumstances, such unreasonable restrictions and retribution towards free speech and criticism only expose a tremor in the establishments of Indian constitutionalism.

We are of the opinion that the judgment is incorrect in opining that Prashant Bhushan’s tweets have the tendency to shake public confidence in the judiciary and interferes with the administration of justice. At best, the tweets are an expression of a growing opinion in society. The Supreme Court needs to introspect on these opinions, which are not held only by Prashant Bhushan, but a growing section of society.

The Court in this case has not only failed to protect fundamental rights but has rather gone on to itself diminish the scope of the right to freedom of speech and expression under Article 19(1)(a). The judgment will have a chilling effect on free speech relating to the functioning of the judiciary and this does not augur well for democracy. This is a matter of deep anguish to all of us committed to a constitutional vision of India.

This judgment, cannot but be seen, in light of the growing alarming trend of the criminalising of dissent in the country with the arrest of people for merely exercising their right to freedom of speech and expression. This comes at a time when the Constitution and democracy are under attack, democratic institutions are capitulating to majoritarianism and rule of law is being consistently undermined, by the present ruling dispensation. Dissent, essential in a democracy, is curbed today by the use of draconian laws including UAPA, sedition law, etc. and the persecution of any counter-majoritarian view as anti-national. The curbing of dissent which is a constitutional right takes both legal and extra legal forms and sadly the Supreme Court which should have the guardian of this right against extra-constitutional assaults has instead rendered itself a mute spectator even as the constitution is wilfully disregarded.

This judgment comes at a time when the reputation of the Supreme Court is at a low. There are questions being raised about the matters the Court takes up and decides, and those it does not. Over the past year, the Supreme Court has decided crucial cases pertaining to Babri Masjid demolition, Sabarimala, interpretation of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. Yet, in matters concerning direct challenge to the policy of the Modi government, there appears to be undue delay. The challenge to the demonetisation, electoral bonds, Citizenship Amendment Act, 2019, abrogation of Article 370 and related cases all remain pending. Legal scholar Gautam Bhatia argues that this is ‘judicial evasion’; the court avoiding deciding a thorny and time-sensitive question, and yet this very avoidance is, effectively, a decision in favor of the government as it benefits from the status quo being maintained. This has raised questions in public perception of an independent judiciary.

At this historic moment we need the Supreme Court to rise above the above mentioned perceived shortcomings and discharge its constitutional responsibility as the custodian and guardian of the fundamental rights.

Here we recall the words of Jst. Deepak Gupta made at a lecture organised by the Supreme Court Bar Association on February 24, 2020: “The right to dissent includes the right to criticise. We all must be open to criticism. The judiciary is not above criticism. If judges of the superior courts were to take note of all the contemptuous communications received by them, there would be no work other than the contempt proceedings. In fact, I welcome criticism of the judiciary because only if there is criticism, will there be improvement. Not only should there be criticism but there must be introspection. When we introspect, we will find that many decisions taken by us need to be corrected. Criticism of the executive, the judiciary, the bureaucracy or the Armed Forces cannot be termed ‘anti-national’. In case we attempt to stifle criticism of the institutions whether it be the legislature, the executive or the judiciary or other bodies of the State, we shall become a police State instead of a democracy and this the founding fathers never expected this country to be.”

It is our hope against hope, that the Supreme Court will awaken to its constitutional responsibility as a defender of the rights of the people. We hope that Justice Gupta’s word will function much like the dissent by J. Khanna in ADM Jabalpur v State of Madhya Pradesh and his words become an effective appeal to ‘the brooding spirit of the law, to the intelligence of a future day’, and the Supreme Court self-corrects the error into which it has fallen.

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