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Tuesday, September 22, 2020

Bhushan guilty of contempt: For SC, two tweets a bid to shake key pillar of democracy

The Bench of Justices Arun Mishra, B R Gavai and Krishna Murari underlined the importance of protecting the faith of citizens in the Supreme Court, and of responding “firmly” to unjustified attacks.

Written by Ananthakrishnan G | New Delhi | Updated: August 15, 2020 8:15:50 am
Prashant Bhushan, criminal contempt, Supreme Court, pillar of democracy, Indian express newsPrashant Bhushan. (File)

The Supreme Court on Friday held Advocate Prashant Bhushan guilty of criminal contempt of court for two tweets which it said were based on “distorted facts”, constituted a “scurrilous/ malicious… attack” on the “entire Supreme Court”, and had the effect of “destabilising the very foundation” of the judiciary.

The court will hear arguments on the quantum of punishment on August 20.

The Bench of Justices Arun Mishra, B R Gavai and Krishna Murari underlined the importance of protecting the faith of citizens in the Supreme Court, and of responding “firmly” to unjustified attacks.

The “Indian judiciary is considered… as a last hope when a citizen fails to get justice anywhere. The Supreme Court is the epitome of the Indian judiciary. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges… in its highest court. A possibility of the other judges getting an impression that they may not stand protected from malicious attacks, when the Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out,” the court said.

“As such, in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly”, it said.

Read| SC lets Prashant Bhushan, Arun Shourie, and N Ram to withdraw plea on contempt Act provisions

On the submission that courts should be magnanimous enough to ignore bona fide criticism, the judges said: “No doubt, that the Court is required to be magnanimous, when criticism is made of the judges or of the institution of administration of justice. However, such magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary and thereby damaging the very foundation of the democracy”.

Criticism that was “made out of bona fide concern for improvement” was different, the court said – “however, when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand 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,” it said.

Under the Constitution, “the Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds,” the court said.

“Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them,” it said.

The order recalled the observations of the late Justice V R Krishna Iyer that “if the Court considers the attack on the Judge or Judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.”

Editorial| Guilty

On July 22, the court had issued notice to Bhushan and Twitter Inc. over Bhushan’s posts of June 27 and 29, saying they “brought the administration of justice in disrepute”.

Senior Advocate Dushyant Dave, who appeared for Bhushan, contended that the June 29 tweet, which was about Chief Justice of India S A Bobde being seated on a bike, was only to express anguish over the absence of in-person functioning of the Supreme Court for several months, because of which citizens were finding it difficult to ensure their fundamental rights.

Rejecting this argument, the Bench said that while the first part of the tweet, which said ‘CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet’, could be said to be “a criticism made against the CJI as an individual and not against the CJI as CJI”, the “second part of the tweet”, which “states, ‘at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice’… criticises the CJI in his capacity as the Chief Justice of India…”.

This, the order said, “is capable of giving an impression to a layman, that the CJI is enjoying his ride… when he has kept the Supreme Court in lockdown mode…”.

The Bench said the court was on vacation on the date the CJI was photographed on the bike – but even then, vacation benches were sitting and the statement that the court “is in lockdown is factually incorrect”.

The Bench said that physical functioning of the court had had to be suspended in order to avoid gatherings at a time of pandemic, but video conferences had been started immediately.

“From 23.3.2020 till 4.8.2020, various benches of the Court have been sitting regularly and discharging their duties through video conferencing. The total number of sittings that the various benches had from 23.3.2020 till 4.8.2020 is 879. During this period, the Court has heard 12748 matters… (and) dealt with 686 writ petitions filed under Article 32 of the Constitution,” the order said.

Therefore, it said, “the statement, that the CJI has kept the SC in lockdown mode denying citizens their fundamental rights to access justice is patently false”. The court pointed out that Bhushan himself had appeared before it in many cases during this period, and had also been a litigant in one matter.

“In this premise, making such wild allegation… is undoubtedly false, malicious and scandalous. It has the tendency to shake the confidence of the public… in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice… [Bhushan] has made such a scandalous and malicious statement having himself availed the right of an access to justice during the said period, not only as a lawyer but also as a litigant.”.

On the second tweet, the court said: “It is common knowledge, that the Emergency era has been considered as the blackest era in the history of Indian democracy. The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal Emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had more particular role in the said destruction.”

Turning down explanations offered by Dave, it said:“The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is sought to be shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. The scurrilous/malicious attacks by the alleged contemnor No.1 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.”

The court said “attending circumstances” were also important. “The publication by tweet reaches millions of people and as such, such a huge extent of publication would also be one of the factors that requires to be taken into consideration while considering the question of good faith.”

Bhushan, the judgment said, was expected to act as a responsible officer of the court. “The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing.”

The judiciary is the “central pillar” on which Indian democracy stands, the court said. “The trust, faith and confidence of the citizens of the country in the judicial system is sine qua non for existence of rule of law. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand. The (second) tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy.

“In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.”

The court discharged the contempt notice issued to Twitter after accepting its explanation “that it is only an intermediary and that it does not have any control on what the users post on the platform.”

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