Says expressing anguish by highlighting this incongruity and the attendant facts cannot be said to constitute contempt of court
Advocate Prashant Bhushan who is currently facing contempt of court charges in connection with two tweets, dated June 27 and 29, has filed his response to the charges against him. Bhushan was issued notice after a petition originally filed by one Mehak Maheshwari on July 21, was converted into a suo moto petition.
However, in his response Bhushan notes that “the notice did not contain the original contempt petition of Mr. Maheshwari. The order also mentions that the matter was placed before the bench on the administrative side and then directed by them to be placed on the judicial side. However, copies of those administrative orders are also not annexed with the notice. Therefore, I had written on 28.07.2020 to Secretary General of the Supreme Court, seeking a copy of these documents, which have since not been provided to me. In the absence of that, I am somewhat 2 handicapped in dealing with this contempt notice.”
Despite this, Bhushan has filed his response addressing the content of both his tweets. He says, “The tweet regarding the CJI riding a motorcycle dated 29.06.2020 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. The fact about the CJI being seen in the presence of many people without a mask was meant to highlight the incongruity of the situation where the CJI (being the administrative head of the Supreme Court) keeps the court virtually in lockdown due to COVID fears (with hardly any cases being heard and those heard also by a unsatisfactory process through video conferencing) is on the other hand seen in a public place with several people around him without a mask. The fact that he was on a motorcycle costing 50 lakhs owned by a BJP leader had been established by documentary evidence published on social media. The fact that it was in Raj Bhavan had also been reported in various sections of the media.” He adds, “My expressing anguish by highlighting this incongruity and the attendant facts cannot be said to constitute contempt of court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article 19(1)(a) of the Constitution.”
On the subject of the second tweet, Bhushan says that it “has three distinct elements, each of which is my bonafide opinion about the state of affairs in the country in the past six years and the role of the 3 Supreme Court and in particular the role of the last 4 CJIs. The first part of the tweet contains my considered opinion that democracy has been substantially destroyed in India during the last six years. The second part is my opinion that the Supreme Court has played a substantial role in allowing the destruction of our democracy and the third part is my opinion regarding the role of the last 4 Chief Justice’s in particular in allowing it.”
Bhushan insists, “Such expression of opinion however outspoken, disagreeable or however unpalatable some, cannot constitute contempt of court.” He further says, “I submit that my criticism has been outspoken yet it has been carefully weighed and made with the highest sense of responsibility. What I have tweeted is thus my bonafide impression about the manner and functioning of the Supreme Court in the past years and especially about the role of the last 4 Chief Justices have played vis a vis their role in being a check and balance on the powers of the executive, their role in ensuring that the Supreme Court functions in a transparent and accountable manner and was constrained to say that they, contributed to undermining democracy.”
Bhushan, a highly respected senior advocate who has been at the forefront of many litigations impacting human rights, justice and liberty further makes a key point that reflects upon the relationship between the court and officers of the law. In his response to the contempt petition, Bhushan says “It is also submitted that the Chief Justice is not the court, and that raising issues of concern regarding the manner in which a CJI conducts himself during ‘court vacations’, or raising issues of grave concern regarding the manner in which four CJIs have used, or failed to use, 4 their powers as ‘Master of the Roster’ to allow the spread of authoritarianism, majoritarianism, stifling of dissent, widespread political incarceration, and so on, cannot and does not amount to ‘scandalising or lowering the authority of the court’.”
He adds, “The court, in this case the Supreme Court, is an institution consisting of 31 Judges and its own long-standing and enduring traditions and practices, and the Court cannot be equated with a Chief Justice, or even a succession of four CJIs. To bona fide critique the actions of a CJI, or a succession of CJIs, cannot and does not scandalise the court, nor does it lower the authority of the court. To assume or suggest that ‘the CJI is the SC, and the SC is the CJI’ is to undermine the institution of the Supreme Court of India.”
Bhushan quotes several sitting and former justices of the Supreme Court on the subject of free speech and dissent including Justice DY Chandrachud who had said “employment of state machinery to curb dissent instils fear and creates a chilling atmosphere on free speech which violates the rule of law and distracts from the constitutional vision of a plural society” while delivering the 15th P.D. Desai Memorial Lecture in the Gujarat High Court Auditorium on 15th February, 2020, at the height of the protests against the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC).
He also quotes Justice Deepak Gupta who while still a sitting Supreme Court Judge, on February 24, 2020, delivered a speech on “Democracy and Dissent” hosted by the SCBA, in which he stated that the suppression of dissent has a chilling effect on democracy, and called for “an impartial decision-making process in the judiciary”.
Most notably Justices Chelameshwar, Kurien Joseph, Madan Lokur, and Ranjan Gogoi, who in an unprecedented press conference in January 2018 had warned citizens that, “There are many things less than desirable that have happened in the last few months… As senior-most justices of the court, we have a responsibility to the nation and institution. We tried to persuade the CJI that some things are not in order and he needs to take remedial measures. Unfortunately, our efforts failed. We all believe that the SC must maintain its equanimity. Democracy will not survive without a free judiciary.”
Bhushan applauds these justices for “invoking a higher principle than the one governing the everyday Code of Judicial Conduct: when those who are to regulate everyone else fail to regulate themselves, then honest public criticism is the only remedy.”
Advocate Prashant Bhushan’s entire response to the contempt petition may be read here: ((INSERT PDF))