On the day the Supreme Court heard arguments on the sentencing of Prashant Bhushan, the advocate it convicted last week for contempt of court over two tweets, former Union Minister, journalist and author Arun Shourie, told The Indian Express that if the Court is offended by a comment, it must, by law, give the person the opportunity to prove his assertion since truth is a defence.
Incidentally, Shourie, along with Bhushan and journalist N Ram, had filed a separate petition before the Supreme Court, challenging the constitutionality of Section 2 (c) (i) of the Contempt of Courts Act, 1971 which defines criminal contempt if one “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court”. They withdrew the petition later.
This is the interview with Shourie.
The Supreme Court has held that the two tweets by Prashant Bhushan shake the faith of the people in the Supreme Court, that they undermine “the central pillar of democracy” in our country. And, therefore, must be dealt with severely. Bhushan does not agree, nor do several senior lawyers who have written strongly-worded articles against the Supreme Court’s judgment. On whose side do you come down – the Supreme Court’s or Bhushan’s?
Shourie: Not just that, they have said that his tweets will frighten the lower judiciary: ‘If the SC can’t protect itself, how will it protect us?’ More than that: the two tweets will lower India’s image abroad — for India is looked up to as a democracy and these tweets undermine the central pillar of that democracy.
No advertising executive could have devised a better advertisement for the company that owns Twitter: ‘Come, join Twitter: see, so powerful is our platform that with just two tweets you can undermine the central pillar of the largest democracy in the world’.
The judgment brings out not Prashant’s view of this central pillar, but the view of the Judges: that this central pillar is now so hollowed out, that it is so fragile that a mere puff of two tweets can put it in jeopardy.
Not the tweets but such remarks, coming as they do from three Judges of the Supreme Court, strain people’s faith in the Supreme Court. They will say, ‘Arey yaar, tum Supreme Court ke paas bhaag rahey ho ki woh tumhey bachchaey jab ki woh khud keh rahen hain ki woh to itney kamzor ho gayein hain ki do chhotey se tweets saarey dhanchey ko gira dengey’.
As the poet Kalim Ajiz would say,
Hum kuch nahin kehtey,
koi kuch nahin kehta
Jo tum ho tumhi sab se
kehalwaye chaley ho
Where should one draw the line between criticism and contempt? You have yourself written books that have censured the reasoning in judgments. Would that kind of analysis not amount to contempt?
Shourie: Of course, that is the logical next step. When an analyst shows that a judgment does not stand to reason; that, as the Court did in the Loya and Rafale cases, it has overlooked crucial evidence (On December 14, 2018, the Supreme Court dismissed four petitions seeking a court-monitored probe into the Rafale deal. Shourie and Bhushan were among the petitioners); when he points to the orders of the Court on the CAA in Assam; when he shows that the Court has been shutting its eyes to events that strike at the very heart of our Constitution and its guarantees — Kashmir, encounter-killings; when he shows that they have been shutting their eyes to manifest lies that governments are telling them – that Soz is not under detention; when he shows that some judges are carried away by their hyperbolic grandiloquence from incomprehensibility to incoherence; when he shows by his analysis that the law and the courts have become what Gandhiji used to say they are, ‘the convenience of the powerful,’ and in India, ‘powerful’ means whoever is in office at the moment, he can, and on the current trend he will be held to be undermining the people’s faith in the judiciary: ‘What is the point of going to the Supreme Court when this is what it is doing?’
That is where the Court is heading: the next step will be to come down on comment and scrutiny. This will spell disaster for the closest scrutiny of both the judgments and the conduct of the judges is the only way to ensure accountability; the only way to ensure that this ‘central pillar’ remains sturdy.
But when someone says that democracy has been undermined in the last six years and that the Supreme Court, in particular the last four Chief Justices have been abettors in this undermining, does that not erode people’s faith in the judicial system? What can the Court do in such circumstances?
Shourie: First and foremost, it must look in the mirror. Has it been aiding and abetting the assault on democracy, its institutions and values or not? If it has, then the critic is a friend of the Court, he is alerting it to the wrong it is doing. If it has not, then he can go on ranting as he will, he is the one who will lose credibility, the people will stop believing him. They will go not by two tweets but by the record of judgments and the conduct of the Judges.
Second, today truth is a defence. So, when the Court is offended by the comment of someone, it must, it is by law bound to give him the opportunity to prove his assertion:
* Will truth not be admitted as a defence in a country whose national motto is Satyameva Jayate?
* Whose ‘Father of the Nation’ said time and time again, ‘Truth is God’?
* But more than that, that truth is a defence, and therefore the alleged contemner must be given the opportunity to make good his charge, is now the law
* And that law has been upheld by a 5-Judge Constitution Bench of the Supreme Court, incidentally in my own case.
That is the law, and you will punish him without giving him a chance to prove what he has said?
The Supreme Court has also taken Bhushan to task for an interview he gave nine years ago. In that he had alleged that several judges, including Chief Justices, had been corrupt. Does that not manifestly lower the dignity of the Judges and the judicial system?
Shourie: First, as I mentioned, you are obliged to give him the opportunity to prove his assertion.
The fact that some lawyers — and they are in the best position to know – feel that some judges are corrupt is a matter of record. The other day, Iqbal Chagla pointed out in The Indian Express that under his leadership, the Bombay High Court Bar Association passed resolutions saying that five judges there were corrupt, that later it did so again in regard to a Chief Justice.
Second, what lowers the dignity of the judicial system in such instances is not a tweet, but
* The facts
* The procedure of dealing with such cases – impeachment — is completely inadequate, in the end, completely partisan
* And completely opaque: as was the case in dealing with the allegation of misconduct against the previous Chief Justice.
Rectify these shortcomings rather than venting your anger at tweets.
Third, remember that ‘corruption’ does not mean only accepting money. An academic or a journalist may not be accepting money and yet be intellectually corrupt in that he habitually plagiarises from the work of others.
A person, say a judge or a political leader, may be thoroughly honest in monetary terms, but thoroughly corrupt morally: he may be proclaiming high principles in grandiloquent prose from the pulpit — about fundamental rights, say, or bringing those who violate these to book, or helping the poor — and yet when the time comes to put them into practice, may not do so. I can give you a pile of examples of this kind of corruption.
As for accepting favours in the narrowest sense, remember that under the Prevention of Corruption Act, 1988, (sections 7 and 11), ‘corruption’ that is sought to be curbed is not just ‘pecuniary gratification’ or corruption that is ‘estimable in money’, but any form of favour: the Act makes a clear distinction — ‘any valuable thing or pecuniary advantage’ — and it seeks to curb both.
Consider an example concerning judges. Who is the biggest litigant in the country? The Government. And so, when after retirement a judge accepts a handout from that litigant — say, the Chairmanship of the Human Rights Commission or the Press Council, or agrees to being nominated as a member of the Rajya Sabha — that is certainly accepting a favour from the litigant who has been before you more than any other litigant. And when this happens after a string of judgments which, let us say by sheer coincidence, are so very convenient for the Government of the day, you can’t blame the people for putting ‘2’ and ‘2’ together and inferring ‘22’.
This is corruption, and it, not some tweet about it or interview about it, is what undermines the esteem in which courts and judges are held.
And when I point to this danger or to actual instances, I am not in contempt. I am being a friend of the court in that I am alerting judges to a real danger.
If even the extreme and explicit comments that Bhushan made in the interview do not constitute contempt per se, what kind of words, what kind of action would constitute contempt? What should be the test?
Shourie: The test has to be a precise and narrow one: is the person doing or saying something that actually interferes with the course of justice. For instance, is he threatening or bribing a witness or a judge?
This business of ‘scandalising’ the court is just too vague, and too out-of-date. One of the greatest Judges of the 20th century, Lord Denning, was called ‘an ass’ for a judgment he had given. And by no less a person than Michael Foot – so the comment was sure to be widely noticed and publicised. But he never hauled up Foot or anyone else for contempt. And please remember, his judgments were as severely criticised as they were roundly applauded.
In one case, he wrote an entire judgment — and his judgments, which changed the course of law, used to be just a page or two long — setting out why he would not haul up a person for contempt.
I wish everyone interested in our courts would read what he wrote on why he would not, and why judges should not rush into hauling up people for contempt. It should be read out loud by judges before they begin dictating their own judgments on contempt.
For one thing, such hyper-sensitivity betrays a sense of extreme insecurity, an apprehension that one’s reputation is so frail that it will be easily and gravely damaged.
But surely you are not condoning abuse?
Shourie: The answer to that was set out by Gandhiji himself. ‘After all, what is “abuse”?’ he wrote. ‘I find that the dictionary meaning is “misuse, perversion, bad use.” When therefore we call a thief a “thief” or a rogue a “rogue”, we do not abuse him… Only the man using a particular adjective must mean it and be prepared to prove it.’
Gandhiji went on to cite religious scriptures which, he pointed out, are full of adjectives and invective of the strongest kind against evil doers and the enemies of those they considered to be God — like the Ramcharitmanas of Tulsidas, who, Gandhiji said, was ‘the quality of mercy personified.’ I would request every judge to read this article also before he dictates any judgment holding someone guilty of contempt. (Young India, November 17 1921).
If even such explicit comments cannot lower the esteem in which courts are held by people, what determines the esteem in which people hold the courts?
Shourie: The judgments that they deliver and the conduct of judges — in and out of court.
In this motorcycle business, while reprimanding Bhushan, the Judges have said that the photograph was taken when the Court was on summer vacation. They have said that Bhushan insinuated that the Court had been put under lockdown when in fact it was functioning, and that Bhushan himself had been appearing before it both as a lawyer and as a petitioner seeking relief.
Is it right for someone to imply that the Court has been shut down while the Chief Justice is pursuing his private interests? Is a Judge not entitled to a private life of his own? Is he not entitled to pursue his private hobbies and interests?
Shourie: First, there is a difference between saying that the Court has been put in ‘lockdown mode’, as Prashant said, and saying that it has been shut down, as the Judges read him to have said. Look at us today: you are interviewing me, I am answering your questions. So, we are not ‘shut down’. And yet we are in a ‘lockdown mode’ — talking across a thousand miles.
Second, I strongly disagree with the suggestion that we have to allow for a difference between the private and public or official life of anyone holding a public office, and that includes judges. First, someone who, let us say, lies to his wife in private cannot be trusted to be honest in the discharge of his official functions. Second, in this day and age, what those holding high office do in private will be out in public view. And that will set an example for others – they are a house set on a hill. And, third, that is what will determine what the people will believe about the institution.
You obviously disagree with everything that the Court has held. What would be your suggestions to Judges?
Shourie: First, be a little more confident about your reputations and that of the institution.
Second, remember that the esteem in which you and your institution is held will be determined by your judgments and your conduct, not by some tweet.
Third, look upon criticism as caution, on the critic as your friend. If he is right, you would be well advised to alter your conduct. If he is wrong, if your judgments are learned, fair and wise, and he keeps saying you are incompetent to hold that office, people will stop believing him. In a word, before taking umbrage at something that has been said, before hauling someone up, always look into a mirror.
I will repeat what I said at the time we filed the petition on Rafale: we are not on trial, the Court is.
And what about the commoners?
Shourie: Scrutinise, scrutinise, scrutinise — in the minutest detail, both the judgments and the judges. And publicise the results as widely as you possibly can. That is the only way to ensure accountability of the judicial system – not the defunct and paralytic impeachment procedure.
And ensuring accountability, keeping judges alert to what they are decreeing and doing is the one way, it is the only way to keep that ‘central pillar of democracy’ strong.
Second, as for the current case, and this business of taking up a nine-year old interview while shutting one’s eyes to issues of the greatest importance, I would suggest a campaign that reminds each of us every day of the relative priorities of our judicial system.
The Court takes suo moto notice of things. Alter that by a syllable.
Chant suo motu — and think of all the vital issues that the courts have not taken up.
Chant suo patlu — and think of all the rivial issues they have busied themselves with.
Let every listener, every reader chant these two words, let him put them on his Facebook page, and, yes, let him tweet these two words — all the time thinking of the cases which the courts have not taken up and of the cases which they have taken up.
But what if, in its current mood, the Supreme Court regards even doing that as contempt.
Shourie: Then adopt my rule of reciprocity — though it doesn’t apply to courts, it is a useful mental exercise, in regard, for instance, to persons who abuse us on social media: I hold him in contempt whoever holds me in contempt.
Perhaps judges can try it too. Then they would not feel compelled to haul up people for contempt of court.