Why Those Rallying For Bhushan Are Not Standing Up For Free Speech But For Special Treatment Of An Individual

The contempt jurisdiction of courts in India in general, and of the Supreme Court of India in particular, has, over the years, been invoked sparingly but consistently to ensure that the confidence that the judiciary inspires in the common man is not hurt.

Although most of these invocations have been free from controversy, a recent use of the contempt power of the Supreme Court has surprisingly attracted a strong reaction from eminent members of the Bar as also prominent individuals in civil society.

On 22 July 2020, the Supreme Court initiated suo motu contempt proceedings against advocate Prashant Bhushan over two statements made by him on the popular microblogging site, Twitter.

Bhushan commented upon the Chief Justice keeping the court locked down while riding a Bharatiya Janata Party (BJP) leader’s bike without a mask amidst a pandemic and also that the Supreme Court and its last four chief justices in particular were directly responsible for the death of democracy in India over the last six years.

The bench took serious exception to these strong comments and was of the prima facie opinion that this conduct amounted to contempt, but in complete adherence to procedural fairness, afforded Bhushan the right to defend himself and substantiate his claims.

On 14 August, the bench rejected the defence taken by Bhushan and pronounced him to be guilty of contempt. The matter will be taken up tomorrow (20 August) for sentencing.

Since the pronouncement of Bhushan’s guilt, both social and mainstream media have been flooded with strong comments from eminent personalities and opinion makers, who have unitedly accused the Supreme Court of stifling free speech and critical dissent as far as the functioning of the court is concerned.

Noted senior advocates Navroz Seervai and Arvind Datar have also penned their thoughts in long form, calling the judgement“seriously flawed”.

The main grouse of those criticising the court seems to be two fold — firstly, that a suo motu petition could not have been initiated by the court when a petition on the very same issue by an advocate, one Mahek Maheshwari, had already been placed by the registry before the bench for which the consent of the Attorney General as is statutorily required, was not taken.

This has been claimed to be an error that hits at the very root of the maintainability of the petition.

The second claim that has been pushed emphatically is that the defence of the contemnor should have been dealt with by the court and the evidence put forth by him in his written statement should have been considered in the judgement pronounced against him.

It has been argued that although the court has the right to reject any evidence, it does not have the right to ignore it.A decision of the Supreme Court, they say, cannot be appealed against and is in the nature of a trial requiring careful consideration of all evidence.

It is very easy to misconstrue the source of the Supreme Court’s power of contempt to be statutory, when in fact it is not so.

The Supreme Court’s power to punish for contempt of itself stems from it being a court of record.

Such a power is derived from Article 129 of the Constitution and cannot be restricted by the provisions of a statute, in this case the Contempt of Courts Act, in any manner.

The court’s recent judgement in the case of “Suo Motu Contempt Petition (Criminal) No 2 of 2019 Re: Shri Vijay Kurle and Ors” has dealt with this aspect in great detail, and observed that the power to punish for contempt “is a constitutional power which cannot be taken away or in any manner abridged by statute”.

As far as the question of taking consent from the Ld Attorney General is concerned, the same is only required in an ordinary contempt petition and not in case the bench takes suo motu cognisance.

The argument that while Maheshwari’s petition was pending before the court having been so placed by the registry without the Attorney General’s consent, the cognisance taken by the bench cannot be treated to be suo motu, is a dangerous proposition.

The Supreme Court has in various judgements acknowledged the rise of a trend of motivated litigation by unscrupulous characters. To suggest that a petition by any of them would give them first movers’ advantage and deprive the bench of the power to take suo motu cognisance is absurd.

Even if the argument of the contemnor is considered for a moment, it would not be valid because the maintainability of the petition cannot be said to be hurt by a procedural irregularity on the part of the court registry.

The Attorney General’s consent has been provided for to add a legal filter and cannot be considered to be a mandatory requirement given that no consequence is provided for in the statute, should the same not be obtained.

It is trite law that a statutory provision is considered to be mandatory if the statute provides a consequence for non-adherence.

This is entirely absent in the Contempt of Courts Act.

In fact, the decision of the Attorney General is appealable thereby proving that it is not final or absolute. The whole object of prescribing a procedural filter in section 15 of the act is to safeguard the valuable time of the court from being wasted on frivolous complaints of contempt.

The court, under Article 129 has the power to punish for contempt of itself and under Article 142(2), has the power to investigate any such contempt.

The second argument forwarded concerns the defence and subsequent evidence put forth by the contemnor.

Before I delve into the actual details of the statements, articles and opinions relied upon by the contemnor in his reply, it is important to reflect upon another basic proposition of law encapsulated in Order 6 of the Code of Civil Procedure — that any plea seeking to prove fraud must be supplemented by material pleadings and material particulars without which such a plea is liable to be rejected.

We must remember that corruption, which is the crux of the contemptuous statements in the present case, is a facet of fraud.

So what is the evidence relied upon here?

What he assumingly wants to highlight are the post retirement positions routinely taken up by judges. He, for example,has been very vocal in his opposition to former Chief Justice of India Ranjan Gogoi’s nomination as a Rajya Sabha MP.

Bhushan has relied upon the interviews, statements and articles of several former judges of the Supreme Court to substantiate his argument, one of who is Justice Markandey Katju.

It is interesting to note that Justice Katju himself would be guilty under Bhushan’s definition of corruption since here tired from the Supreme Court in September 2011 and was appointed as the chairman of the Press Council of India in October 2011.

Another former judge whose statement has been quoted in the written statement is Justice P Sathasivam, who also accepted the post retirement office of governor of a state merely four months after demitting office.

It is unclear why Bhushan has repeatedly relied on statements of people he seeks to implicate, to prove his allegations of corruption. For want of better proof, maybe?

Another incident that Bhushan has cited as “evidence” is the press conference conducted by four senior judges of the court to highlight pressing issues in the judiciary.

Citing this episode as “evidence” is also amusing because one of the “last four Chief Justices”, who Bhushan seeks to indict, is Justice Ranjan Gogoi, who called for that press conference.

Other evidence in the form of lectures by judges has been relied upon.

However, it is unclear how those are relevant since lectures on judicial independence have been delivered by judges since time immemorial but the specific emphasis on destruction of democracy by the Supreme Court in the last six years, remains unsubstantiated.

The rest of the written statement consists of excerpts from judgements that Bhushan himself terms as “debatable”.

These are orders and judgements delivered by the court from time to time that he clearly does not agree with. It is a settled proposition of law that criticism of judgements does not amount to contempt.

However, when one crosses that line and begins to routinely attribute corruption, political or worse still, criminal motives to judges of the top court for judgements delivered by them, it certainly amounts to contempt.

The argument that the court must necessarily deal with the evidence put forth by Bhushan even if they eventually discard the same, has a necessary pre-condition — the furnishing of any evidence at all.

The articles, interviews, lectures etc fall severely short of the requirement of “particulars” as is necessary under Order 6 Rule 4 of the CPC.

The Supreme Court has no bounden duty to answer an individual’s opinions or fictional theories.

The judgement delivered by the court in Bhushan’s case is extremely detailed and goes to great lengths to segregate the non-contemptuous portions of his statements from the bits that constitute contempt.

It also quotes at great lengths several judgements of the Supreme Court dealing with very similar sets of facts, where the court had ultimately arrived at the conclusion of guilt of the contemnors concerned.

It must be highlighted that as recently as in April 2020, three individuals were sentenced to three months imprisonment after being held guilty of contempt under very similar circumstances in “Suo Motu Contempt Petition(Criminal) No 2 of 2019 Re: Shri Vijay Kurle and Ors”.

The contemnors in that case had circulated certain letters on social media supporting the allegations of one Matthew Nedumpara that sons and daughters of judges were given priority in awarding senior designations.

The contemptuous part of the statement was that they named noted jurist Fali Nariman while making this allegation when his son Justice Rohinton Nariman is a sitting judge.

Any neutral observer would immediately conclude that the statements made by Bhushan are far more scandalous than the ones for which imprisonment was awarded to the contemnors in the abovementioned case.

It is, however, shocking that the above contemnors got no support or sympathy from any of the public intellectuals, who are readily declaring the death of free speech and democracy today. None of them have been able to explain why Bhushan must be treated any differently.

If an argument against the constitutional validity of the power to punish for criminal contempt were to be made, that would warrant some consideration and would deserve a separate set of arguments.

However, it is amply clear in the present that all those speaking up in favour of Bhushan are only interested in saving him.

In fact, they have carefully mentioned that the law of contempt should be used in appropriate cases.

What is being rallied for, is special treatment for an individual in the applicability of a general law.

Unfortunately despite vehement proclamations to the contrary, the rule of law is still alive in India and the law speaks with one mouth to all. Lex unoore omnes alloquitur.

(The author is an advocate at the Supreme Court of India)