The conviction of lawyer and activist Prashant Bhushan for criminal contempt for two tweets criticising the chief justice and the court is a sobering moment, a day before the country celebrates its freedom. For all the lengthy reasoning in Friday’s 108-page order, for all its conclusion that in holding the tweets as “false, malicious and scandalous”, it was acting “not to vindicate the dignity and honour of the individual judge” but to uphold the “majesty of the law and of the administration of justice”, the order can, and will, be read as the Supreme Court showing a thin skin and wielding the offence of contempt to constrict the fundamental freedom of expression. The court also sends a chilling message that criticism could carry a high cost by leaving an impression of heavy-handed use of a blunt instrument against an individual citizen. A citizen who has a record of standing up and showing the mirror. Clearly, the SC has not heeded, as it has done earlier, its duty to be magnanimous, and to display the higher tradition of the higher courts — of “majestic liberalism”.
The judiciary is the central pillar of the edifice of a constitutional democracy. It is the protector of the fundamental rights of the citizen and also the institution that keeps other institutions within constitutional bounds. Care must be taken, certainly, to ensure that public faith and trust in it is not weakened or eroded. But the safeguarding of that faith and trust cannot be done by coercion, or by falling back on an antiquated law that demands a kind of deference to a form of authority that is out of step with the temper of the times. A law, moreover, that is all too vulnerable to being seen as self-serving — enforced by judges, targeting offensive remarks about themselves. The Contempt of Courts Act, 1971, does not belong in a country celebrating its 74th Independence Day. Even as the court’s power of contempt flows from Article 129 of the Constitution, it needs to be reconciled with the constitutional values of free and fair criticism. And that balancing, that harmonisation, has to be done by the court, keeping in mind the nature of the new public square where hyperbole, exaggeration, even the cheap shot, may need protection for the truth to emerge.
Whatever the sentence handed to Bhushan later this month, the court has done a real injury to its own standing as the balancing and harmonising institution. This self-goal is compounded by the fact that it has acted against Bhushan when it is seen to turn a deaf ear and an unhurried eye to several important cases — electoral bonds and the constitutionality of Article 370, to take just two — and when processes of justice, like all else, have been slowed down by COVID-19. It must be hoped that a court which has also shown a great capacity to self-correct will undo in the future the hurt it has caused to itself. Its shoulders have always been broad. They need to widen, not shrink, to carry the weight of a nation’s expectations — especially when the critical voice becomes harder to hear.