Tuesday, October 20, 2020

Conviction of Prashant Bhushan for contempt of court is justified and does not amount at all to ‘destruction of democracy’

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Conviction of Prashant Bhushan is not 'destruction of democracy'

— Consider reading the article Conviction of Prashant Bhushan for contempt of court is justified and does not amount at all to ‘destruction of democracy’ on OpIndia website —

Recent controversy relating to conviction of Sri Prashant Bhushan, Advocate (herein after referred to as the contemnor) for contempt of court has given opportunity to some interested persons to create erroneous impression in the minds of the public and more importantly among law students and Junior Lawyers about the judiciary in the country and in particular the Supreme Court of India.

People are led to believe that this judgement of the Supreme Court is a frontal attack on free speech exercised against judiciary and in particular the Supreme Court or an assault on an independent Bar attempting to prevent it from fearlessly speaking out against wrong doing in the judiciary. It is alleged that, by this judgement, the Supreme Court wants to send a message that the judiciary will not tolerate any criticism, however justified it may be, and that it wants to threaten and warn members of the bar by misusing its power to punish for contempt. Nothing is farther than truth as it will be discussed later.

In their attempt to find fault with the Supreme Court, actions of the contemnor are glorified and he is portrayed as a crusader fighting against corruption and a fearless champion of right causes. Students of law and junior lawyers are led to believe that a lawyer who frequently criticizes judiciary and judges will receive great admiration as a fearless lawyer and gain immense popularity.

Several articles and write ups supporting Prashant Bhushan and critical of judgement of the Supreme Court are thus misleading the law students and junior lawyers, virtually leading them on the wrong and dangerous path which will undoubtedly mar their future career.  This article is essentially to prevent the same.  

So far as the assertion that the judgment is to threaten the members of the Bar impairing their freedom of speech so that they may not level any criticism against judiciary or the judges is concerned, it may be remembered that the Bar in India is independent and strong enough not to be swayed away by such threats. Experience has shown that the lawyers have never lagged behind nor shirked their responsibility to criticize judges whenever the same was justified and necessary.

Such criticisms are frequent occurrences and there have been no instance of any action for contempt. Those supporting the contemnor and criticizing the judgment are not bringing it to the notice of the public that the contemnor is a repeat offender so far as contempt of court is concerned and there are numerous instances in the past when the Supreme Court has passed adverse comments against him. They have also been instances where action was not taken since he withdraw the allegations/tendered apology.

There is a long list of instances where different judges of the Supreme Court including Chief Justice R.M.Lodha, Chief Justice Dipak Misra, Chief Justice Khehar, Chief Justice T.S.Thakur,  Justice Dr. DY Chandrachud, Justice Madan Lokur, Justice Kurian Joseph, Justice A.K.Sikri, Justice R.Bhanumathi, Justice Arun Misra, Justice S.K.Kaul, Justice Gavai have passed adverse comments on him for his conduct.

The present case should not be seen in isolation but has to be considered in the light of the past conduct which unmistakably points to the malicious intention to malign judges whenever their judgements are not in favour of the contemnor. Very rarely courts have initiated action for contempt and it is unfair to say that judges are intolerant of any criticism. Mostly, even wholly unjustified criticism is ignored.

But where an Advocate continuously makes scandalous allegations and in spite of several warnings and reprimand continuous to denigrate the Supreme Court and the judges, will not the court be justified in taking action? That is what has happened here. The court would have failed in the duty if no action was taken when such persistent and deliberate attempts are made to malign and denigrate the Supreme Court resulting in people to losing faith in the highest court of the country.  

Now coming to the facts of the case, as I pointed out, there are two tweets. Suffice to deal with only one that too very briefly. In the second tweet the contemnor says democracy is destroyed by the Supreme Court in the last six years and four Chief Justice of India are also responsible for this. In justification of the comment, Sri Navroj Seervai, Senior Advocate has referred to only two instances, one regarding complaint of sexual harassment against Former Chief Justice of India Justice Gogoi and the other is the conduct of Former Chief Justice of India Justice Dipak Misra as complained of by four judges in the press conference mostly relating to allotment of work amongst judges.

One fails to understand what these allegations have to do with destruction of democracy by the entire Supreme Court. Allegation in the tweet is not against individual judge but on the entire Supreme Court as an institution. It is a scandalous allegation against every judge of the Supreme Court during the last 6 years and that includes four judges who held press conference. Apart from the question of contempt, can it even be considered as a responsible statement of an advocate practicing before Supreme Court and who claims to have lots of love and affection for the Supreme Court?

My appeal to the law students and junior lawyers is to not consider the conduct of contemnor as a model worthy of emulation so far as criticism of the Judiciary and Judges is concerned. They should not be guided by the fact that the contemnor has quoted Mahathma Gandhi in the contempt action initiated by the British against the latter. Those circumstances were entirely different. There is no comparison between the two cases.  

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