I write this with a deep sense of anguish, a cri de coeur from someone who has over 55 years of practice, held the judiciary in general, and the Supreme Court in particular, in the highest esteem, respect and regard. That my faith in the institution has on occasion been shaken cannot be denied — most notably when in ADM Jabalpur, the infamous judgment, the Supreme Court denied, during the Emergency, the citizen’s most fundamental right to life and liberty. That it took nearly 40 years to right that wrong and overrule that judgment is disappointing, but at the same time it recognises the ability of the Court to correct, revive and regenerate.
Prashant Bhushan, is, for me, another ADM Jabalpur moment when the Court, whom we have always proclaimed to be the defender of the freedom of speech, has by its judgment curtailed that very freedom by the exercise of its contempt jurisdiction — a jurisdiction where the Court is judge, victim and prosecutor. I say so not only because of the judgment, but because of the manner in which it took up and conducted the matter.
Let’s be clear: Prashant Bhushan gives the clear impression that it treated Bhushan’s tweets as the occasion for the Court to flex its muscle and make clear that it will not tolerate criticism. It appears that when it was found that his tweets regarding the Chief Justice of India and the motorcycle may appear to be too trivial, it brought up an 11-year-old contempt case against him. That Bhushan’s comments had not lowered the Court’s esteem or brought it into disrepute for 11 years, that it did not merit disposal during a pandemic when matters of far greater importance were pending, was not a consideration. The pending matters were, among others, challenges to Article 370, electoral bonds, the Citizen Amendment Act and, of course, habeas corpus petitions and the fundamental rights of the people of Kashmir. The clear impression that the Court conveys is that Bhushan must be held up as an example — he is a senior advocate practising in the Supreme Court with an enormous reputation as an activist who has made a lasting contribution to public causes. The lesson must go out, loud and clear, that if the Court will not baulk at disciplining someone of his reputation, then woe betide anyone who dares to criticise. The significance of Prashant Bhushan is not that he has been found guilty of outspoken and trenchant criticism but the test that has been applied, and which, broadly, comes to this: If the words or conduct shake the confidence of the public in the judiciary the same constitute contempt. Every criticism, therefore, no matter how measured and responsible, will always in that sense affect the public’s confidence in the judiciary.
If one might be permitted some anecdotal evidence of the maturity of approach in matters of contempt. In 1990, it fell upon myself to move resolutions against five sitting judges of the Bombay High Court, impugning their integrity and calling for their resignation. I was warned by friends that this constituted clear criminal contempt and under the extant law, justification was not a defence. My only raison d’etre was that one owed it to posterity not to sit idle even as the fountain of justice was polluted. The resolutions were passed, albeit with much-heated debate: One judge resigned, two were transferred and two were denied any further judicial work. Fortunately, we had Justice Chittatosh Mukerjee as the Chief Justice of the Bombay High Court and Justice Sabyasachi Mukerjee as the Chief Justice of India. An interesting sequel was when I called on the CJI in Delhi (I had become the president of the Bombay Bar Association). He received me at his residence. A grim-faced CJI and asked: “Mr Chagla, do you intend to do this again?” “Good heavens, no, Chief Justice, once was enough”, I replied. “Then, may I congratulate you? It needed to be done. Our own enquiries revealed they were bad eggs and deserved to be removed.” Contrary to my assurance, it fell to my lot, five years later, to move a resolution against a sitting Chief Justice of the Bombay High Court calling for his resignation on grounds of corruption. Again, the resolution was carried and the chief justice resigned.
In the words of Lord Atkin, “justice is not a cloistered virtue”. I believe the Supreme Court has missed a great opportunity to display judicial statesmanship. While expressing its disapproval of whatever Bhushan had said on either occasion, and even though the words might constitute contempt under an archaic law, the judges could nevertheless have said that their shoulders are broad enough to treat such comments with the contempt they deserve; or adopt the approach of Lord Denning when he said that they would never use the contempt jurisdiction to uphold their own dignity for “that must rest on surer foundations”. In words that bear repetition, he said: “We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
Instead, the judgment spells out a chilling lesson that undermines that most valuable fundamental right, the freedom of speech. And so, where, indeed, do we go from here? There are editors of leading newspapers, historians, legal scholars and intellectuals who have in no uncertain terms criticised the Supreme Court. They have, on various occasions, said that it has become “an institution that speaks the language of the executive, and has become indistinguishable from the executive”; “that the transformation of the Indian state into a repository of repression… would not have been so easy without the willingness of the Supreme Court to look the other way, and occasionally to join in the project”; “that the Supreme Court has let us down in recent times, through a combination of avoidance, mendacity, and a lack of zeal on behalf of political liberty”; “the Court of today may come to be viewed by future generations of Indians not merely as an executive Court, but as a collaborationist Court”; “that by convicting Prashant Bhushan for contempt, it (the Supreme Court) diminishes itself”.
Each of the above comments, as well as this article, may well be said to affect the confidence of the public in the Supreme Court. We are all, therefore, under the present dispensation, guilty as charged. Is this, then, what the Supreme Court in Prasant Bhushan sought to achieve? And has it opened a Pandora’s box that will require the sagacity of a future Court to close?
The writer is a Senior Advocate and former President of the Bombay Bar Association