— Consider reading the article Why Prashant Bhushan deserves to be punished for Contempt on OpIndia website —
While Prashant Bhushan’s conviction for criminal contempt by the Supreme Court has evoked pitched criticism from journalists, politicians and lawyers who pretend to stand for democratic values when it suits them, one cannot help but notice the dishonesty in their arguments. They completely gloss over the fact that Bhushan is, first and foremost, an officer of the Court in his capacity as a lawyer, and despite his celebrity credentials earned through seasonal activism of the occasional variety, he cannot possibly claim immunity from the law of the land.
Bhushan’s brand of activism over the years has been to terrorize individuals who occupy constitutional positions, by launching allegations that he cares little to substantiate. Is it because he knows, that Judges, unlike politicians and other public figures, cannot react or retaliate? Who can forget his sensational remarks on the alleged corruption of former chief justices, another statement which created a huge stir – but does anyone remember that he never followed up on his claims? Perhaps the fascination with him persists for this precise reason.
Finally, he had to face the law due to a couple of tweets, which are being painted as mere “criticism” by a few people. One of his tweets targeting the last four CJIs was aimed at undermining the very faith in the judiciary. It is not difficult to see how pernicious it was.
However, his other tweet, attacking the current Chief Justice of India, for simply sitting on a motorbike, was perhaps one of the most flippant and frivolous remarks that could have been made by a person who pretends to espouse serious concern for the Court. And I must add that while it might appear flippant overtly, the undertones were just as serious.
The mischief and malice were inherent in his imputation that the top man was enjoying himself while the Court was shut, and thus citizens were suffering. This could not have been further from the truth! In the midst of a pandemic, no sane judge would have permitted a crowded courtroom to function, putting to risk the lives of thousands of lawyers and litigants. Instead, urgent matters and petitions of public import were actively taken up by video conferencing. I personally know of instances where the Court dispensed with the usual rigorous method of filing petitions and permitted urgent letter-petitions to be listed and taken up without delay.
Undoubtedly, there were hitches in this system, some attributable to the adoption of modern technology in a largely traditional field, and others to the incompetence of the present Registrar General of the Court (which I had highlighted in an open-letter to him, which he never cared to respond to). But even the Court’s harshest critics will admit, that these delays and difficulties were unavoidable and certainly not on account of the Institution or some Judges colluding with the Executive – a ludicrous and deeply damaging lie which Bhushan attempted to peddle.
What was sillier, however, was his groveling defence which came later; where he claimed to have merely ‘stated the facts’ in his tweet. The nastiness of the underlying allegations of collusion, connivance and the notion that the Court was shirking its constitutional responsibilities, was lost on no one. But as usual, Bhushan chose innuendo and slander to attack, without a shred of any real evidence to support his charge. As far as the law of criminal contempt is concerned, defined as it is under the Contempt of Courts Act, 1971, even a first-year law student would tell you that Bhushan’s statement squarely attracted the offence under Section 2 (c). His remarks directly insinuated that the Chief Justice was somehow prejudiced in favour of the Government and was thus deliberately keeping the Courts shut to deny citizens access to justice.
Such a scathing indictment, bereft of any proof, would certainly amount to scandalizing the Court and lowering its authority in the eyes of the public. And lest we forget, the only real authority the Court possesses, is moral authority, by which it runs its writ. It requires as a prerequisite, the trust and respect of those it dispenses justice to. Bhushan’s remarks, understood in this sense, were thus not merely flippant remarks made to irritate and embarrass an individual, but rather, they were aimed at denigrating an institution and weakening its very foundation.
Besides, Judges have personal lives too and are entitled to enjoy their downtime. Having clerked for a Judge, I have seen first-hand the enormity of the work pressure and the added stress that forced social isolation brings with it. Moreover, for Bobde’s integrity and blemish-less public service of decades to have been questioned so irresponsibly, all for sitting on a motorcycle, was indecent and unfair even by Bhushan’s low standards.
That said, only a fool would argue that any Court, even a Supreme Court or its Judges, ought to be placed at some sort of facetious pedestal, immune from all criticism. Such protection would perhaps appear normal in an authoritarian or theocratic setup, but in contrast, severely ridiculous and thin-skinned in a State that claims to be a rights-based system.
Besides, the very aim of any constitutional democracy, such as what we possess in India, is to promote a free and egalitarian society where all citizens suffer equally before the rule of law. In the context of speech, this means that each individual constituent of the Republic is free to express his or her view under the guarantee of protection by the State. Naturally, such freedom would be meaningless if the fear of lawless retaliation loomed menacingly overhead.
This preeminence that free speech enjoys in a modern and liberal democracy, however, rests delicately on another critical and necessary feature of modern constitutions – the importance of acknowledging the importance of imposing certain restrictions on that freedom. Thus, the idea is simple – you have the freedom to say what you like but must suffer the legal consequences if your statement is false and injures someone’s reputation. As my middle-school civics teacher put it ever so eloquently, your freedom to swing your arm ended where someone’s nose began.
Extrapolating this principle of reasonable and legally permissible restrictions to free speech, any fair-minded person would agree that malicious speech, on the other hand, which had the effect of injuring the reputation of another, would carry costs and consequences, albeit legal and constitutionally acceptable ones. Lest one not realize it, the right to preserve one’s name and honour against false accusations, is a cherished right guaranteed to all citizens – rich or poor, liberal or conservative alike.
Bhushan understands all of this very well – which is why it is impossible to miss the disingenuity in the defence taken up by him in his much-publicized case.
I do admit that the Bar’s reaction to Bhushan’s controversial tweets have been mixed. Younger colleagues, who are liberal in their political outlook, believe that the Court should have ignored the remarks in deference to the right of free speech. But I ask them, would they have remained silent if someone sought to falsely sully their reputation or name? Surely, malicious imputations must carry some consequences. In a similar vein, I disagreed with a valued colleague, a distinguished Senior at the Bar whom I must not name, who claimed that Bhushan’s tweets on Bobde ought to have been ignored as they were simply aimed at obtaining a reaction and garnering attention. To that, I received no response when I posed the counter, asking what entitled Bhushan to special immunity from the law of the land.
The Court’s verbose and repetitive judgment on Bhushan’s guilt, and the reasons it proffers for it, might not be ideal, but it is in no way unjust. While the aspect of sentencing still remains pending, I for one would argue that the Court would be utterly failing in its constitutional duty, if it issues anything less than the severest punishment mandated by law.