The Supreme Court is hearing at least two cases of contempt against activist lawyer Prashant Bhushan observing that his tweets have brought "the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large."
Responding to the accusations of contempt, in a strongly worded reply, Bhushan said having an opinion did not necessarily amount to criticism. It is the "essence of a democracy" that all institutions, "including the judiciary" function for the people of this country, and they have "every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution."
There are at least two contempt cases in the Supreme Court where Bhushan has been accused of contempt.
1) On July 2 2020, a Guna-based advocate Mehak Maheshwari sought initiation of contempt proceedings after highlighting two tweets where Bhushan commented on a picture where Chief Justice of India (CJI) SA Bobde was seen atop a Harley Davidson without a mask, and another where he observed that democracy in India has been destroyed even without a formal emergency and that the Supreme Court played a key role in the destruction. Twitter India (Maheshwari has sought contempt action against them too) withheld both the tweets after the top court suggested they take it down without a formal order during a hearing on July 22.
2) While issuing notice on Maheshwari's plea, the top court initiated suo moto contempt against Bhushan on a 11-year-old interview in Tehelka where the senior lawyer alleged corruption in the higher judiciary including half of 16 CJIs.
The contempt case against Bhushan has once again kickstarted the debate on free speech versus contempt. More than 130 persons including retired judges like Madan Lokur and AP Shah have publicly appealed to the top court seeking the withdrawal of contempt proceedings against him "in the interest of justice and fairness and to maintain dignity of the Supreme Court."
Contempt of court is a tool employed by the judiciary to protect the dignity of the institution from unwarranted criticism and attacks. One can also attract the courts contempt if judicial orders are not complied with.
The Supreme Court on August 4 and 5 heard matters at length and reserved its order in both cases.
The case against Bhushan
On July 22, the top court initiated suo motu notice of contempt against Bhushan since Maheshwari had failed to get the requisite permissions before filing the contempt plea. According to the provisions of the Contempt of Court (CC) Act, 1971, a contempt petition maybe initiated suo motu by court, or on the advice/initiation of the Attorney General or the Solicitor General of India.
In his plea, Maheshwari had taken umbrage over Bhushan's tweet criticising CJI Bobde submitting that, "the remarks are too inhuman forgetting that how much Hon'ble CJI and the other justices are stretching themselves to ensure justice to the citizens that they allow hearing by Video Conferencing Mode and they are not even enjoying vacations properly." In his plea, Maheshwari further observed that the tweets were of "serious nature" and questioned the "sovereign functions of the CJI and their abiding nature to the Constitution of India."
"Apart from that" the three-judge bench led by Justice Arun Mishra also took note of a tweet reported in the The Times of India, where Bhushan had observed, "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 rote of the Supreme Court in this destruction, & more particularly the role of the last 4 CJls".
In a strongly worded reply, Bhushan said having an opinion did not amount to contempt. Representing him in this matter on August 5, senior advocate Dushyant Dave argued that fair criticism was not wrong, and nobody could "claim to be infallible, including the Judges."
"Hundreds of people tweeted after the photo was clicked of the CJI riding the bike. Is the court going to charge all with contempt of court?" Dave had asked the bench.
The second matter
The second matter is a revival of a 2009 criminal contempt case where senior advocate Harish Salve had brought the court's attention to an interview in Tehelka in which Bhushan said at least half of 16 CJIs were corrupt. According to the case details available on the Supreme Court website, the matter has been heard 20 times since it was first listed on January 19, 2010.
The three-judge bench led by Justice Mishra asked senior advocate Rajeev Dhavan—he is representing Bhushan in this issue—how the "grace" of the institution could be saved. However, the hearing was abruptly halted and continued in-camera. In its order released later in the evening, the bench noted that it had not received any explanation or apology from Bhushan and Tarun Tejal—the editor-in-chief of the now defunct magazine, so far.
"In case we do not accept the explanation/apology, we will hear the matter," the bench said, reserving its order on whether or not it would accept Bhushan's statement," the bench noted while reserving its verdict.
Hours after the order, Bhushan's office issued a statement saying: "In my interview to Tehelka in 2009 I have used the word corruption in a wide sense meaning lack of propriety. I did not mean only financial corruption or deriving any pecuniary advantage. If what I have said caused hurt to any of them or to their families in any way, I regret the same.
Bhushan's tryst with contempt
In February 2019, Attorney General of India KK Venugopal moved contempt proceedings against Bhushan after the latter accused him of misleading the court about Prime Minister Narendra Modi-chaired High-Powered Committee that approved M. Nageshwar Rao as interim CBI chief.
At the last hearing in this matter on April 4 2019, Venugopal had offered to withdraw the charges after Bhushan admitted he had made a "genuine mistake" but the court – led by Justice Mishra, said, "You may or may not withdraw the petition against him (Bhushan) but you have raised a question and we will decide it".
The matter is still pending in court.
Bhushan has escaped contempt in two other cases as well.
On November 14, 2017 the Supreme Court had rejected a plea filed by NGO Centre for Judicial Accountability (CJAR) -- led by Bhushan, and advocate Kamini Jaiswal who sought a Special Investigation Team (SIT) probe in the medical college bribery scam which involved a retired high court judge, observing it was "contemptuous" and "derogatory". A three-judge bench led by Justices RK Agrawal, Arun Mishra and Navin Sinha had ruled against contempt proceedings but fined the NGO Rs 25 Lakhs.
In 2001, five lawyers had filed a contempt plea accusing Booker Prize winner Arundhati Roy, Bhushan and Narmada Bachao Andolan leader Medha Patkar of shouting abusive slogans during a December 2000 protest outside the court premises. In its verdict – delivered on March 6 2002, the top court had held Roy in contempt, while Bhushan and Patkar were let off.
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