“Justice is not hubris; power is not petulance and prudence not pusillanimity, especially when judges are themselves prosecutors and mercy is a mark of strength, not whimper of weakness. Christ and Gandhi shall not be lost on the judges at a critical time when courts are on trial,” wrote Justice Krishna Iyer, in a landmark judgement holding S. Mulgaonkar, then editor of the Indian Express, not guilty of contempt of court for an article published in the newspaper. These words of Justice Iyer, one of the finest legal luminaries decorated the annals of the apex court, should be the guiding spirit of the Supreme Court as it is seized of the contempt of court case against senior advocate Prashant Bhushan.

To put the matter in the right perspective, it is important to refer to the two tweets that agitated the judges to initiate contempt proceedings against Bhushan. One post is related to his comment on a picture of Chief Justice of India S. A. Bobde sitting on a high-end bike. In the other tweet, Bhushan expressed his opinion on the last four Chief Justices of the apex court under whom “how democracy has been destroyed in India.” Both the tweets together make 478 characters. But the court issued a 108-page judgement that found Bhushan guilty of contempt of court and convicted him in the case.

The verdict of the apex court imperils freedom of speech. It amounts to gagging a citizen’s right to comment on what he perceives right or wrong in the society or in any institution. Bhushan is not the first person to find fault with Supreme Court judges and their verdicts. As Attorney General K. K. Venugopal told the Bench, several sitting and retired judges of the Supreme Court and High Courts have commented upon corruption in the higher judiciary. In other words, Bhushan has tweeted something what many others, including judges, have said in the past. In fact, these comments and remarks are meant to show a mirror to the judges and seek reforms in the higher judiciary. Instead, the Supreme Court chose to take action against the whistle blower.

There is something strange in the Supreme Court pestering Bhushan to apologise so that he may be let off the hook. But the lawyer has made it abundantly clear that he is not seeking mercy from the court and he is willing to submit to any penalty “inflicted” upon him for discharging what seems to him the highest duty of any citizen.

The Bhushan episode should serve as a test case for the courts to take recourse to the Contempt of Court Act more judiciously and sparingly. Judges should not over-react to criticism unless it leads to jeopardizing of justice. Showing magnanimity to critics and openness to criticism is not weakness, rather it is a mark of strength of individuals and institutions. It will only enhance the prestige of the highest Court of the land. The status and stature of the Court depend on its fearless judgements and unbiased interpretation of the law. It cannot allow its reputation to be mired in controversy due to a punishment handed out to a lawyer who acted on his conviction.

(Published on 31st August 2020, Volume XXXII, Issue 36)