Just
a couple of days before his retirement from the Supreme Court, Justice Arun
Mishra gave (perhaps unwittingly) the people of India a very special gift: a
ONE RUPEE COIN! (coin because the one-rupee note has totally disappeared!). It
was in the form of the ‘punishment’ meted out to senior
public interest lawyer and activist Prashant Bhushan for the contempt
of court case against him. Bhushan was already found ‘guilty’ and the quantum
of ‘punishment’ was only to be given. It was done on 31 August a little after
the clock struck twelve noon! The
82-pages sentencing judgment concludes with,
“We, therefore, sentence
the contemnor with a fine or (SIC
)
Re. 1/-(Rupee one) to be deposited with the Registry of this court by
15.09.2020, failing which he shall undergo a simple imprisonment for a period
of three months and further be debarred from practicing in this Court for a
period of three years”(#93)
It was perhaps one of the most high-profile cases in the
Supreme Court in recent times. Bhushan after all, is a well-known lawyer and
has taken up cudgels on behalf of the poor, the excluded and the exploited; it
has always been against the powerful, the vested interests and of course the
ruling regime -particularly the current political dispensation. The immediate
provocation was two tweets Bhushan made in June; first against four former
Chief Justices and in a second tweet against the current Chief Justice. As the
case unfolded it was clear that Bhushan would never relent; besides, Justice
Mishra was well known in giving favourable judgments to the likes of the
BJP/RSS and other powerful groups.
Justice Mishra said that they were
“showing magnanimity”
by not imposing a severe punishment. He is fooling no one! There would have
been ‘magnanimity’, if he had declared the entire case null and void and
apologized to Bhushan for all the mental trauma he has caused him, for the
tremendous loss of resources and time and if he had decided to look objectively at
all the charges of corruption against past
and sitting judges. Instead by awarding the Re 1/- fine he has initiated
a national movement; where hundreds of people who stand up for democratic
principles, for truth and justice, for Constitutional values and certainly for
Prashant Bhushan, were spontaneously ready to put the Re1/- into the kitty. Re
1/- is mainly in coins today; but the ordinary citizen is short-changed all the
time. If you pay in cash with a big note or coin, the small change
(particularly the Re1/-) is hardly returned. In fact, one cannot get one of
those ‘masala’ pouches or even a gulp of tea, today for Re 1/-. That coin has
become useless; today however, it is pregnant with meaning! It is not about a
‘token’ punishment; it has suddenly become a powerful symbol of a resilient and
new India waiting for change, ready to overthrow all those who have been
destroying every sacred institution of our democracy!
One needs to re- visit
the sequence of this case :on 27 June (the day after the anniversary of
the 1975 emergency in India) Bhushan wrote a one-sentence tweet opining about
the Indian Supreme Court’s role in eroding freedoms in the world’s largest
democracy; he said
“When
historians in the 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 SC in this destruction, and more particularly
the role of the last four CJIs.”
Two
days later (29 June), his second tweet said,
“The CJI rides a Rs 50-lakh
motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without wearing a
mask or helmet, at a time when he keeps the SC on lockdown mode denying
citizens their fundamental right to access justice!”; this tweet had a
photo of the CJI Bobde
astride a Harley-Davidson.
Some
members of India’s Apex Court were upset with these tweets.
On July 9, 2020, a petition was filed
by an advocate, for contempt based on the tweet against the CJI sitting on a
motorbike, with an application for exemption from producing consent of the
Attorney General (AG) or the Solicitor General (SG). The matter was listed on
July 22 before the Bench presided over by Justices Arun Mishra, B R Gavai and
Krishna Murari, which passed an order, inter-alia, stating,
“this petition
was placed before us on the administrative side whether it should be listed for
hearing or not as permission of the Attorney General for India has not been
obtained by the petitioner to file this petition. After examining the matter on
the administrative side, we have directed the matter to be listed before the
Court to pass appropriate orders. We have gone through the petition… We take
suo motu cognisance of the aforesaid tweet also apart from the tweet quoted
above and suo motu register the proceedings… We issue notice to the Attorney
General for India and to Mr. Prashant Bhushan, Advocate also.” The
Supreme Court issued a show
cause notice to Bhushan after initiating the criminal contempt against him for
his two tweets. Besides this, another suo motu contempt petition was also
pending before the same three-judge bench against Bhushan for calling past CJIs
corrupt in a 2009 interview to Tehelka magazine. Bhushan had offered an
explanation but the Supreme Court refused to accept the same and ruled the
matter would be heard (that case, however, is now expected to come up before a
different bench on 10 September)
In
its judgment dated 14 August, the
bench ruled that Bhushan was guilty of contempt of Court
for his tweets against Chief
Justice of India SA Bobde and last four CJIs, saying, “
such an
attack
which tends to create disaffection and disrespect for the authority of this
court cannot be ignored.” Further adding, “
The scurrilous/malicious
attacks by the alleged contemnor No. 1 (Bhushan) are not only against one or
two judges but the entire Supreme Court in its functioning of the last six
years. Such an attack which tends to create disaffection and disrespect for the
authority of this court cannot be ignored….If an attack is made to shake the
confidence that the public at large has in the institution of judiciary, such
an attack has to be dealt with firmly…If such an attack is not dealt with, with
requisite degree of firmness, it may affect the national honour and prestige in
the comity of nations.”
Symbolically,
20 August (the day of the next hearing and on which the quantum of punishment
was expected to be given to Bhushan) was the
seventh
death anniversary of the rationalist Dr Narendra Achyut Dabholkar who was shot
dead by two bike-borne assailants in Pune. His murder and three more similar
killings, that of communist leader Govind Pansare (February 2015), Kannada
scholar MM Kalburgi (August 2015) and Bangalore journalist Gauri Lankesh (September
2017), sparked nationwide debate surrounding issues of freedom of speech and on
various hostile forces to rational thought. The suppression of democratic
rights and freedom had begun in India long before Prashant’s tweets. On that
day however, several hundreds of citizens had gathered all over the country and
particularly on a national webinar to express their solidarity with Bhushan.
Updates of the court proceedings were given regularly to the participants at
the webinar. Several concerned citizens openly expressed their disgust of the
way the Constitutional rights of the citizen were being trampled upon.
Towards the end of the hearing
Bhushan’s statement included the following, “
I have gone through the judgment of
this Hon’ble Court. I am pained that I have been held guilty of committing
contempt of the Court whose majesty I have tried to uphold -- not as a courtier
or cheerleader but as a humble guard – for over three decades, at some personal
and professional cost. I am pained, not because I may be punished, but because
I have been grossly misunderstood. I am shocked that the court holds me guilty
of “malicious, scurrilous, calculated attack” on the institution of
administration of justice. I am dismayed that the Court has arrived at this
conclusion without providing any evidence of my motives to launch such an
attack. I must confess that I am disappointed that the court did not find it
necessary to serve me with a copy of the complaint on the basis of which the
suo motu notice was issued, nor found it necessary to respond to the specific
averments made by me in my reply affidavit or the many submissions of my counsel.
My tweets were nothing but a small attempt to discharge what I considered to be
my highest duty at this juncture in the history of our republic. I did not
tweet in a fit of absence mindedness. It would be insincere and contemptuous on
my part to offer an apology for the tweets that expressed what was and
continues to be my bonafide belief
. Therefore, I can only humbly paraphrase
what the father of the nation Mahatma Gandhi had said in his trial: I do not
ask for mercy. I do not appeal to magnanimity. I am here, therefore, to
cheerfully submit to any penalty that can lawfully be inflicted upon me for
what the Court has determined to be an offence, and what appears to me to be
the highest duty of a citizen”.
Caught
very badly on the wrong foot, Justice Mishra and his colleagues refrained from
giving the order for the sentencing of Bhushan on that day. In an apparent
face-saving device and as a last-ditch effort they felt that Bhushan had to unconditionally
apologize in order to settle the matter; asserting that they were giving him
2-3 days more to think over things. But Bhushan in a style which is so
characteristic of him, was unrelenting saying that he would never apologize.
On
24 August, in a supplementary statement filed through his advocate, Bhushan said,
“
It is with deep regret that I read the order of this Hon’ble Court dated
20th of August. At the hearing the court asked me to take 2-3 days to
reconsider the statement I made in the court. However, the order subsequently
states: “We have given time to the contemnor to submit unconditional apology,
if he so desires.” I have never stood on ceremony when it comes to offering an
apology for any mistake or wrongdoing on my part. It has been a privilege for
me to have served this institution and bring several important public interests
causes before it. I live with the realization that I have received from this
institution much more than I have had the opportunity to give it. I cannot but
have the highest regard for the institution of the Supreme Court. I believe
that the Supreme Court is the last bastion of hope for the protection of
fundamental rights, the watchdog institutions and indeed for constitutional
democracy itself. It has rightly been called the most powerful court in the
democratic world, and often an exemplar for courts across the globe.
Today in these troubling times, the hopes of the people
of India vest in this Court to ensure the rule of law and the Constitution and
not an untrammeled rule of the executive. This casts a duty, especially for an
officer of this court like myself, to speak up, when I believe there is a
deviation from its sterling record. Therefore, I expressed myself in good
faith, not to malign the Supreme Court or any particular Chief Justice, but to
offer constructive criticism so that the court can arrest any drift away from
its long-standing role as a guardian of the Constitution and custodian of
peoples’ rights. My tweets represented this bonafide belief that I continue to
hold. Public expression of these beliefs was I believe, in line with my higher
obligations as a citizen and a loyal officer of this court. Therefore, an
apology for expression of these beliefs, conditional or unconditional, would be
insincere. An apology cannot be a mere incantation and any apology has to, as
the court has itself put it, be sincerely made. This is especially so when I
have made the statements bonafide and pleaded truths with full details, which
have not been dealt with by the Court. If I retract a statement before this
court that I otherwise believe to be true or offer an insincere apology, that
in my eyes would amount to the contempt of my conscience and of an institution
that I hold in highest esteem “.
The high
drama continued on 25 August. On this day however, the Attorney-general of India
K.K. Venugopal was given some token importance. Earlier (particularly on 20 August), in spite
of being the Chief law officer of the country he was clearly sidelined by the
Bench. Towards
end of the arguments on 20 August
when he was allowed to submit his views, he was cut short as the Bench said that it was not hearing on ‘the merits of
the case’ He submitted that he has a list of five judges of the SC speaking of
threats to democracy and of another nine who had spoken of corruption in the
higher judiciary – but before he could complete his arguments, Justice Mishra
interrupted him saying
‘we are not hearing on the merits’. Strange but
true!
On 25
August, Venugopal made a strong case for Prashant Bhushan, particularly on his
tweet on retired judges;
“Can anything be said whether whatever has been
said is correct or not? We cannot possibly go into this aspect without the
views of those judges. That would mean an inquiry which will go on and on.
Prashant Bhushan can't be punished till this inquiry concludes. So, my
suggestion would be to give a quietus to this matter without getting into that
exercise.
“Bhushan may be given a warning and need not
be punished, a warning to tell him 'Don't repeat this in future'. Bhushan's
tweets seek the improvement of the administration of justice. Bhushan can be
told not to repeat this and not given punishment... I myself wanted to file a
contempt case against Prashant Bhushan when two CBI (Central Bureau of
Investigation) officers were fighting and he said I fabricated documents. But
after he expressed regret, I withdrew. Let democracy follow in this case when
he has exercised his free speech... It will be tremendously appreciated if the
court leaves it at that. Even if he says he hasn't done anything wrong, this
court should take a compassionate view. I speak for the Bar also... Although it
is too late for him to go back on what he has said, he can still express
regret”.
He urged the
Supreme Court
“to show statesmanship and not use the powers of the contempt.”
In a
significant no -holds barred interview
with the ‘Frontline” Magazine(11 September 2020)Justice A.P. Shah,
former Chief Justice of the Delhi and Madras High Courts and the Chairman of
the 20th Law Commission of India said that the Supreme Court now appeared to
see the world only through the executive gaze and in doing so was failing in
its duty to protect fundamental rights.
“There is no doubt in my mind that
with this decision, the Supreme Court has come across as an intolerant
institution. It has effectively announced to the world that it is not open to
any criticism. The more concerning aspect is how and why the court appears to
be going after Mr. Bhushan for these tweets. The tweets in question are
actually fairly trivial and inconsequential, which even the Supreme Court
realises. This probably explains why the nine-year-old contempt case against Mr.
Bhushan was tagged on here.
“With
regard to the tweet where Mr. Bhushan refers to personal liberties being
destroyed, he could have arguably been more diplomatic in his choice of
language, but it does not take away from the fact that it is the truth. Even I
have said the same thing very often. And many historians, legal scholars,
senior advocates, policy experts, political scientists, and other public
intellectuals have expressed similar views. This decision is surely going to
have a chilling effect, and will cause a complete curtailment of the most
precious rights of all the fundamental rights—Article 19.1 (a)—the freedom of
speech and expression. This right to freedom of expression is important not
just for young lawyers. It is important for everyone who is critical of the
court. With this decision, the court has basically sent out a message that no
one must criticise the institution, and everyone must stay quiet”.
Not only Justice Shah, but several
legal luminaires, intellectuals, civil society leaders from across the board,
leading editorials/op-eds have expressed their disgust with what is happening
in the Supreme Court today. Some of the judgments have been extremely prejudiced,
one -sided and hardly befitting of the most important pillar of democracy.
Besides important cases (and judgments) are kept in cold storage.
Later in the evening Prashant
Bhushan at a Press Conference stated,
The Supreme Court of India has announced its
verdict on the contempt case against me. It holds me guilty of contempt of
court and has decided to impose a fine of Re 1, and failing that imprisonment
of three months and debarring me from practicing for three years. I had already
said in my first statement to the Court:
"I am here to cheerfully
submit to any penalty that can lawfully be inflicted upon me for what the Court
has determined to be an offence, and what appears to me to be the highest duty
of a citizen". Therefore, while I reserve the right to seek a review
of the conviction and sentencing, by way of an appropriate legal remedy, I
propose to submit myself to this order and will respectfully pay the fine, just
as I would have submitted to any other lawful punishment. I have had the
greatest respect for the institution of the Supreme Court. I have always
believed it to be the last bastion of hope, particularly for the weak and the
oppressed who knock at its door for the protection of their rights, often
against a powerful executive. My tweets were not intended in any way to
disrespect the Supreme Court or the judiciary as a whole, but were merely meant
to express my anguish, at what I felt, was a deviation from its sterling past
record. This issue was never about me versus the Hon’ble Judges, much less
about me vs the Supreme Court. When the Supreme Court of India wins, every
Indian wins. Every Indian wants a strong and independent judiciary. Obviously
if the courts get weakened, it weakens the republic and harms every citizen. I
am extremely grateful and humbled by the solidarity and support expressed by
countless persons, ex-judges, lawyers, activists and fellow citizens who
encouraged me to remain firm and true to my beliefs and conscience. They
strengthen my hope that this trial may draw the country's attention to the
cause of freedom of speech and judicial accountability and reform. What is very
heartening is that this case has become a watershed moment for freedom of
speech and seems to have encouraged many people to stand up and speak out
against the injustices in our society. I would be failing in my duty if I do
not thank my legal team, especially senior Advocates Dr Rajeev Dhawan and Shri
Dushyant Dave. I am more confident now than ever before that truth shall
prevail.
Long live democracy! Satyameva Jayate!”
A powerful statement!
It should be because the Re 1/- is the symbol of change: of a NEW INDIA!
*(
Fr
Cedric Prakash SJ is a human rights and peace activist/writer. Contact:
cedricprakash@gmail.com
)
