We The People Say: “GUILTY!”

In October 2016, when the famed fiction-writer John Grisham released another best-seller ‘The Whistler’, it made sensational news! It is a tale of “the most corrupt judge in American history.” All fiction, of course; but sadly, as a reviewer would say “the story is entirely credible”. A similar story has been unfolding in India recently; unfortunately, the story here is not fiction but, on the one hand, of corruption in the most Supreme institution of the land and on the other hand, about two recent tweets by public interest lawyer and activist Prashant Bhushan on the judiciary. The plot here is thick and has all the ingredients and pulp of a super -thriller with the final pages however, still to be written.

First, 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.  

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 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 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 apologise 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 apologise.

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), inspite 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.”

Once again, the Supreme Court did not hand over the ‘punishment’ to Bhushan. Justice Mishra who will retire from the Supreme Court on 2 September, will have to give the punishment before that.   It is most unlikely that they will drop the entire contempt case against Bhushan and let him off, and as Venugopal suggests, with a ‘reprimand’. There is too much at stake for the likes of Justice Mishra. His track record in the Supreme Court has been just disgraceful : he has blatantly been on the side of the RSS/BJP combine ( his admiration of Prime Minister Modi is unabashed referring to him in public once as “a genius who thinks globally but acts locally”) ; he has sided with their crony capitalist friends like the Adanis most of the time; given several questionable judgments ( with others) like the case of Sanjiv Bhatt.    His bench was regularly given important and politically sensitive matters. Prashant Bhushan has over the years been his ‘ bête noire’. Giving Bhushan some punishment would perhaps be the only way by which, Justice Mishra can have ‘his pound of flesh’ and be crowned, by Modi and his ilk, just as they did so to the former CJI Gogoi, post-retirement!

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 judgements) are kept in cold storage. That several of the judges have succumbed to the political powers and have not displayed the courage and the prudence to protect the Constitutional rights of the citizen is to say the least.

In the context of what has been happening Prashant Bhushan seems  no longer the accused and no longer deserves any punishment!

 In fact , the guilty are those who do not do enough  to protect our Constitutional  rights particularly of freedom of speech and expression, of one’s conscience and of the right to dissent!

John Grisham has ample matter to write his next best-selling novel based on the ‘doings’ of the Supreme Court of India! Undiluted facts here- because truth is indeed stranger than fiction!

*( Fr Cedric Prakash SJ is a human rights and peace activist/writer. Contact: cedricprakash@gmail.com)

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