Contempt For Expression

The ability to express one’s thoughts is one of the defining features of human beings. To deny them that means to treat them as subhumans. In India, our constitution, which we framed after a long fight for independence, guarantees the freedom of speech and expression to all its citizens. Ironically, one day before we celebrated 73 years of independence, the Supreme Court (SC), which is responsible for upholding the constitution, found civil right lawyer Prashant Bhushan guilty of criminal contempt of court for his two tweets. On August 31, the Court ordered him to pay a nominal fine of Rs 1 or face 3 months’ imprisonment.

Mr. Bhushan had posted the tweets in late June. In one twee, he shared a photo of Chief Justice of India (CJI) S. A. Bobde astride a bike, and wrote that CJI rides a bike without mask or helmet while keeping the SC in lockdown mode, denying citizens their right to access justice. In another tweet, Mr. Bhushan made a general commentary on the role of the SC in last six years. He said that historians in future will mark the role of the SC, and particularly the role of the last four CJIs in “destruction of democracy” in last six years, “even without a formal Emergency”.

The judgement said that the tweets had the effect of attempting to destabilise Indian democracy. “Such malice should be dealt with an iron hand in the larger public interest.. When the scheme was on to damage public confidence in the judiciary, those interested in fearless justice should stand firmly.” It also said that it could not ignore the disrespect and disaffection created by the “scurrilous” tweets. It said, “it was the duty of the Court to punish to preserve its dignity as judiciary is the central pillar of Indian democracy. If such an attack is not dealt with requisite degree of firmness, it will affect the national honour and prestige in the comity of nations.” Justice B. R. Gawai, one of the three judges who herd the matter and gave the judgement said in the Court, “critics are instruments of reform, but not those who are actuated by malice, but those who are inspired by public weal.” He said, “Hostile criticism of judges as judges or judiciary would amount to scandalising the court.”

It is incomprehensible to me on what basis the Court concluded that Mr. Bhushan’s criticism was actuated by malice. He is a senior lawyer, working in the Court for more than 30 years. He has taken up many Public Interest Litigation (PIL) cases for free. Some of them include, a case of the victims of anti-Sikh riots in 1984, compensation to the victims of Bhopal gas tragedy, irregularities in the allocation of 2G spectrum and coal blocks during the UPA government, the alleged irregularities in the purchase of 36 Rafale jets for the Air Force, demand for transfer of funds from PM CARES to National Disaster Response Fund (NDRF). He also took up the case of Narmada Bachao Andolan. In some cases, he has worked as amicus curie (adviser) of the Court. Mr. Bhushan took up those cases when the people against whom those cases were filed were in power.

Supreme Court has not achieved the trust and respect for itself among the common people of India because everybody said good things about it. It has achieved that because of its landmark judgements over the years. The SC performed its duty of guarding the constitution by defining the basic structure of the constitution in 1973, which included fundamental rights and judicial review, among other things, in the historic Kesavananda Bharti case. The Court declared that parliament cannot remove parts which come under the basic structure of the constitution. It made justice accessible to vulnerable people by introducing Public Interest Litigation (PIL) in 1986, whereby public-spirited citizens can file cases on behalf of these people on the issues of larger public interest such as environmental issues, poor road construction, state of prisons, and so on. It widened the definition of right to personal liberty under article 21 in Maneka Gandhi case in 1978, declaring that physical restraint and coercion are not the only constrains on personal liberty, and any law passed by the parliament which puts curbs on personal liberty will have to pass the test of reasonableness. Similarly, through several cases the Court has widened the definition of right to life, concluding that it includes right to dignified and healthy life and not merely right to be alive. In 2018, the Court did away with some archaic provisions of section 377 of Indian Penal Code (IPC) and decriminalised homosexuality. While doing that, it prayed the LGBTQ community to forgive history. In all these cases, the Supreme Court boldly challenged the government, discriminatory social practices and its own judgements to uphold the spirit of the constitution.

But in recent years, some judgements and actions of the Supreme Court seem contrary to this perception. Last year, a Supreme Court employee had written a letter to 22 judges of the Court complaining of sexual harassment by the then CJI Ranjan Gogoi. What followed was very depressing. The woman was suspended from her job. The reason given was that she had taken a half day without informing. The Court formed an internal panel which gave clean chit to Justice Gogoi in a non-transparent and controversial proceeding. In 2018, in a historic press conference, four senior most judges of the SC accused the then CJI Dipak Misra of allotting important cases to judges of his choice irrationally. The four judges had also said that the SC administration is not in order, and that democracy is in danger. The trigger for this press conference was apparently the allocation of the case of the death of a CBI court judge justice B. H. Loya. He was hearing the case of Sohrabuddin Shaikh encounter in which BJP leader Amit Shah was one of the accused. In December last year, the parliament passed a controversial Citizenship (Amendment) Act (CAA). Several petitions were filed in the Court challenging its constitutional validity. They contend that it goes against the principle of secularism, which is part of the basic structure of the constitution that the Court itself has defined. But the SC has not even taken up the cases for hearing because, since physical hearings are not possible due to coronavirus pandemic, the court is only taking “urgent” cases. In rather strange remarks, the current CJI S. A. Bobde said in an interview to The Hindu that in crisis like coronavirus pandemic, the court has very little to do and the executive i.e. the government is better suited to deal with the crisis. He also said that declaration of rights does not have much priority and importance in the crisis situation. Agreed that executive has resources to manage the crisis. But isn’t it important to keep a check on how it is deploying those resources? Also, the statements give an impression that justice and rights are luxury. In March this year, the SC bench led by justice Bobde uncritically accepted the sweeping statement of the Central government that there were no migrant workers on the road any more. But several media reports showed otherwise. The Court did not ask many questions to the government about the latter’s tackling of the pandemic, and this uncritical manner of the Court was called out by several retired judges. Advocate Prashant Bhushan just expressed his thoughts on these and other troublesome actions and judgements of the Court.

The Prashant Bhushan judgement correctly points out that lack of public trust in judiciary will destabilise Indian democracy. In recent months, we saw two extra-judicial killings or “encounters”. One was of four accused in Hyderabad gang rape case In December, and another was of gangster Vikas Dubey in July. Instead of demanding investigation into the circumstances leading to the deaths, people largely celebrated and congratulated the police for giving “instant justice”. The growing clamour for instant justice, eliminating accused without trial, is of great concern for Indian democracy in general and Indian judiciary in particular. That is because justice system in India is incredibly slow. It takes years to complete trials. The most recent example of this is the conviction of 11 policemen in July 2020 in the murder case of Man Singh, independent MLA and head of an erstwhile princely state in 1985. The conviction came after 35 years not from the Supreme Court but from Mathura sessions court.

As one of a billion Indians, I think low speed of delivering justice, and not Prashant Bhushan’s tweets, is shaking people’s trust in the judiciary. The Court has the responsibility of upholding the constitution in its spirit. The spirit of the constitution, as I understand it, is accepting all human beings, irrespective of their identities and habits and providing them equal opportunities to live a good life. Upholding this spirit regardless of whichever party with whatever ideology is in power, and not punishing Mr. Bhushan for doing something very basic as a human being, will increase my trust in the judiciary.