Two tweets and authority of apex court

The Supreme Court bench headed by Justice Arun Mishra on the eve of 73rd Independence Day held Prashant Bhushan, advocate of Public Interest Causes, guilty of crime of contempt of court for his two tweets.

On 29 June, Prashant Bhushan shared an image of CJI Bobde sitting on a Harley Davidson superbike, commenting that the CJI was sitting on a bike belonging to a BJP leader without a mask or helmet, at a time when the Supreme Court was "denying citizens their fundamental right to access justice" because it was in lockdown mode".

The Supreme Court held: "This tweet was not against the CJI in his individual capacity but as the head of the judiciary…. from March 23 to August 4, the Supreme Court Benches had 879 sittings and heard 12,748 matters. It noted that Bhushan himself not only appeared as a lawyer during this period but also challenged the FIR against him. The court refused to accept his tweet as written out of anguish".

On 27 June, he wrote: "When historians in future look back at the last six 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."

The Supreme Court held it tends to give the impression that the highest constitutional court of the country has in the last six years played a vital role in the destruction of Indian democracy. "There is no matter of doubt, that the tweet tends to shake the public confidence in the institution of judiciary… the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law," it Bench said.

An advocate is regarded as officer of court. While judge is on the Bench, the other officer is on the other side of bar. The Supreme Court lawyers are selected from the Bar also. Like some advocates who became judges, a vociferous defender of public cause like Prashant Bhushan also had clear eligibility to become judge. It is just a matter of chance. A judge will judge only the matter before him. But a citizen is free to judge any matter, he can take the matters before the constitutional courts for their judgment. Unless someone files a petition, the courts also will not get a chance to review a decision of executive. It surprises to know that an advocate who is all through his life present before the Supreme Court Judges, defending constitutional rights of people, winning and losing, fighting and challenging, was considered to have lowered the authority and held guilty. The court considers that he has no freedom to pass two comments, for which he was held guilty.

What are the professional duties of advocates? A senior advocate Iqbal Chaglaa, who has been practicing for the last 55 years, wrote about his experience, how he questioned some corrupt judges and got rid of them. "In 1990, it fell upon myself to move resolutions against five sitting judges of the Bombay High Court, impugning their integrity and calling for their resignation. I was warned by friends that this constituted clear criminal contempt and under the extant law, justification was not a defence. My only raison d'etre was that one owed it to posterity not to sit idle even as the fountain of justice was polluted. The resolutions were passed, albeit with much-heated debate: One judge resigned, two were transferred and two were denied any further judicial work. Fortunately, we had Justice Chittatosh Mukerjee as the Chief Justice of the Bombay High Court and Justice Sabyasachi Mukerjee as the Chief Justice of India".

Iqbal Chaglaa narrated another incident like above: "An interesting sequel was when I called on the CJI in Delhi (I had become the president of the Bombay Bar Association). He received me at his residence. A grim-faced CJI and asked: 'Mr Chagla, do you intend to do this again?', 'Good heavens, no, Chief Justice, once was enough', I replied. 'Then, may I congratulate you? It needed to be done. Our own enquiries revealed they were bad eggs and deserved to be removed.' Contrary to my assurance, it fell to my lot, five years later, to move a resolution against a sitting Chief Justice of the Bombay High Court calling for his resignation on grounds of corruption. Again, the resolution was carried, and the chief justice resigned.

Sanjay Hegde, another senior advocate says Supreme Court is everything for them, and does not think that authority of Supreme Court is so weak that it can be shaken by two tweets. By these two tweets, he did not obstruct the judicial process, there was no obstruction caused. EMS Nambudripad, Arundhati Roy and Prashant Bhushan were convicted for contempt. But P Shiv Shankar, Union Minister for Law, who made a scathing attack on entire judiciary attributing bias etc was acquitted. Those who study the law of contempt of court, will be astonished to find these two contradictory orders. Contempt power should not be used to silence the speakers who are speaking against power. This power has to be used only to enforce specific orders of court but not to force critics to silence with the power of punishing them, Sanjay Hegde said.

Former Chief Justice of India R M Lodha questioned the urgency of hearing this criminal case of contempt against an activist lawyer as if heavens were falling. He said that the virtual court system initiated to urgently hear and protect personal liberty was "actually impairing somebody's liberty". Justice Lodha was referring to procedural fairness and explained. "…virtual court hearing was not a proper system for delivery of justice in a criminal contempt matter. "A criminal contempt matter is between the court and the contemnor. No third party is involved. So, the contemnor should be fully assured that he is being provided procedural fairness and a full hearing. A virtual court does not meet these parameters. A physical hearing was more assuring than a virtual one," he said. On "scandalising of court" as a ground for contempt, Justice Lodha noted that this law, as long as it remained in the country, should not be applied in a routine manner. "Scandalising the court or lowering the dignity of the court are not stereotype phrases. They are impregnated with a lot of meaning and substance that requires deeper reflection. They should not be applied in a routine manner, or merely because somebody feels that the dignity of an individual has been lowered."

Section 12 of Contempt of Court Act says:

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:

Provided that the accused may be discharged, or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

Explanation: An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

As the apex court has scheduled the hearing on deciding sentence to be imposed on convicted contemnor, it is hoped that this could still be avoided by tendering an apology by Prashant Bhushan or accepting his 'regret' as an apology under Contempt of Court Act.

(The writer is Dean, School of Law, Bennett University, and former Central Information Commissioner)Madabhushi Sridhar Acharyulu