Caught on the horns of a dilemma

India’s Supreme Court, which prides in being the world’s most powerful judiciary, is in the unenviable position of being “damned if you do, damned if you don’t.”

A three-judge bench of the court had recently hauled up Prashant Bhushan, the country’s best known public interest lawyer, on a charge of contempt of court for two tweets critical of Chief Justice SA Bobde and alluding to corruption charges against some of his predecessors.

In contempt cases, more often than not, the accused, aware of the court’s power to punish, apologises and the court, accepting the apology, lets him off the hook.

Of course, there have been occasions when the court refused to accept the apology and proceeded to punish the contemnor.

On August 14, the bench, headed by Justice Arun Mishra, held that Prashant Bhushan’s tweets were scurrilous and malicious attacks not only on one or two judges but the entire Supreme Court.

Prashant Bhushan, who asserted he had posted the tweets in discharge of his highest duty, sought a review of the judgment and requested the bench not to pronounce sentence until after the review.

The bench refused the request to hold sentencing in abeyance but assured him that the sentence would not be enforced until after the review.

Bhushan said he was not seeking mercy and was ready to accept whatever punishment the court awards him.

In doing so, he took a high moral ground, as was done by Gandhi when a British Indian court had found him guilty of breaking the law.

Across the country there was a spontaneous outpour of sympathy and support for him. Netizens expressed solidarity with him in his fight to uphold the right of criticism.

Much of the criticism of the finding against Bhushan was political in nature.  Many critics viewed it in the context of the general feeling that the constitutional court has become an executive court ready to give the government a free hand.

The transformation is traced to the time when Chief Justice Ranjan Gogoi faced a charge of sexual harassment. The process by which he cleared his name was vitiated as the court acted as both prosecutor and judge.

When petitions challenging the constitutionality of the government’s action in Jammu and Kashmir came up, Justice Gogoi put them aside saying, “I want to give the government more time.” On his retirement, the Modi administration nominated him to the Rajya Sabha, the upper house of Parliament.

Most of the J&K petitions are yet to be taken up as Justice SA Bobde, who succeeded Gogoi, also appears to be inclined to give the government more time.

The Indian Express, after analysing the verdict in 10 free speech cases decided by the apex court this year, pointed out that it provided no relief except when the government did not object.

A large number of legal luminaries, including former Supreme Court judges, openly disapproved of the court’s handling of the Bhushan case. Some of them pointed to grave infirmities in the procedures the court adopted as well as the conclusions it arrived at.

Prashant Bhushan posted the impugned tweets in June. A lawyer from Madhya Pradesh filed a petition seeking action against him for contempt of court. He did so without obtaining permission from the Attorney General as required by the law.

Instead of throwing out the petition filed without the AG’s permission, the court kept it and initiated action for contempt on its own.

The AG, KK Venugopal, who was kept out of the prosecution process, told the bench not to punish Bhushan.  

Dr Mohan Gopal, a former Director of the National Judicial Academy, Bhopal, and the National Law School of India, Bangalore, in a sharp critique of the judgment, said it was “entirely unconvincing on facts and on law”.

He added, “It comes across as hyperbole unbecoming of the dignity, dispassionate sobriety and reliable precision that has come to be expected from one the world’s greatest apex courts.”  

He said Mr Justice Mishra should not have decided the case as Prashant Bhushan, in his affidavit, had raised serious questions about his judicial conduct. He suggested that the case be heard afresh by a bench which does not include Mr Justice Mishra.

The core issue now is not Bhushan’s conduct but that of the court itself.

Over the past half century the Court had limited the scope of the contempt law through liberal interpretation of its provisions. It should not undo what was done.

The court must earn respect through its conduct not by throwing the book at critics.