Contempt Ruling in Bhushan case

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Senior lawyer and activist Prashant Bhushan was held guilty of “criminal contempt” by the Supreme Court for his tweets which the Court said were “malicious” and that they “undermine the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affront the majesty of law.”

One of Mr Bhushan’s tweets read: “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

In another tweet he said, “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

Those aware of the issues that had been facing India and its Supreme Court in the last six years might infer that Mr.Bhushan’s tweets were perhaps referring to the issues in Jammu and Kashmir since article 370 revocation, the lockdown of its people even before the “lockdown”, the J&K habeas corpus petitions that SC put off for months, the question of legality of the Citizenship Amendment Act pending before SC, the initial refusal by SC to intervene on the question of relief to millions of “migrant workers” during lockdown, the question of constitutionality of law on Triple Talaq pending before it, the precedent it set on the property dispute in Ayodhya that many lawyers like Mr. Bhushan and former Supreme Court judges questioned, and other matters in the last six years that have similarly faced criticism of ordinary 21st century tweeting people.

In rejecting Mr Bhushan’s argument that the tweets were “fair criticism of the functioning of the judiciary, made bona fide in public interest” the Court said the tweets were “scurrilous, malicious in nature” and that there was no doubt that the tweets tend “to shake the public confidence in the institution of the judiciary”.

The question on “public confidence in the institution” of the Supreme Court and India’s other institutions has gained relevance in the recent years. When four Supreme Court judges held the historic press conference they raised questions on independence of the judiciary and the connected threat to democracy. One of the judges even believed that the then CJI was “remote controlled” by external sources. What the judges of country’s top court said were enough to shake public confidence. No question of contempt was raised then. If many people including Mr Bhushan have developed any mistrust in the working of the judiciary or the CJI the press conference significantly contributed to it.

With this ruling, the Supreme Court appears to be taking a strict note of what people say about the working of the Supreme Court and the CJI. Many have expressed consternation while lawyers have argued in favour of freedom of expression with Mr. Bhushan still saying that he expressed “what was and continues to be my bona fide belief”.

The tweets that undermined “the dignity and authority of the.. court” may have done more damage to the judges’ dignity since the contempt proceedings began with tweets being subsequently reproduced and widely published online and in print – which raises the question on the purpose of the contempt law or its application in a case as this.

The Court initiating and hearing a suo motu action in a case where the Court itself is the aggrieved party calls into question if this contempt action serves the basic principle of natural justice.

The eventual action of the Supreme Court with sentencing in this case will govern how freedom of expression will be seen in a democratic India.

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