EMS had a better case than Bhushan. He in fact submitted that he never meant what he said though as the court observed that EMS was ignorant of the “teachings of Marx and Engels (behind whom he shelters)……”. Thus the jurisprudence of contempt in India is rooted in the basic structure concept of the Constitution and the attack on the court is deemed to be an attack on the constitution itself. The Court is under the constitution, but it is also the custodian of the constitution as it is the only organ vested with the prerogative to declare as to what is the constitution.
Ever since the etymology of the word ‘court’ shrank to mean the fora for dispensing justice ‘contempt’ has become a strange bedfellow in the journey through the destinies of their subjects. Earlier ‘court’ meant the Royal abode- a confluence of legislation, administration and adjudication. The Ruler makes law, enforces it and adjudicates violations. “Style is the man”, guided the ethos of justice. Socrates was made to drink hemlock in the open court. Jesus was judged by Pilates crudely. Panchali was tried openly and disrobed in the Kaurava court. Hanumanji was humiliated with tail set fire in the court.
In modern times with the emergence of nation-states and the quantum jump of man in civilizational standards supported by doctrines of liberty, freedom and rule of law the organization of the state freed from the Royal antics and institutions of the public interest came into being. The individual became a unit of the society with his political rights recognized, preserved, and protected under law. The state functioned with a balancing of powers among the triumvirates of Parliament, Executive and Judiciary. Among them, Judiciary became the ‘The Least Dangerous Branch’ and earned a reputation for inviolable integrity.
A tradition of noble standards built around rational principles guarded the institutions of justice against vituperative vilification from the public. Judiciary came to enjoy immunity and security from public criticism for acting judicially and the power to punish for acts in contempt of the court developed into a sharp weapon to bridle the loose-mouths. The institutional insularity accredited the courts with prerogative powers to protect itself from wild and devastating criticism, bordering on defamatory utterances and contumacious behaviour, for the acts it did. In common law regime from a very early period the jurisdiction of the courts, especially the higher courts or what is known as the Courts of Record, to punish for contempt was recognized and put in practice.
In India from the time of the Mayor’s Court and the Admiralty court during the early period of the British rule this power of the courts was in vogue. As the administration of justice became the “chiefest interest of man on earth” the institutions of justice were to be protected, of necessity, from scandalisation, trivialization and contumacious actions by those living under the command of laws. Specific legislation, constitutional provisions, overarching judgments and common thinking that if the courts are vandalized verbally through slandering tendencies the public interest would suffer.
Courts must work turbulence-free; judges must work independently and “without fear or favour and affection or ill-will” in their mission to protect the constitution and the laws. In democracies, with written or unwritten constitutions, the ‘Worth of Man’ has led to the establishment of strong defences to protect fundamental rights and statutory rights from state’s transgressions. Individual freedoms and their enforcement by the laws through the courts are a necessary incidence of rule of law and constitutionalism.
In India, the struggle for preserving the citizen’s freedoms started simultaneously when “We the people” adopted and enacted and gave to “ourselves” the constitution on 26th of November 1949. Within days of commencement of the ‘rule of law’ under the constitution, the Supreme Court had faced with a huge cry from the citizenry regarding the violations of personal liberty and fundamental rights. In A. K. Gopalan v. State of Madras (1950), the Supreme Court made the opening deliberation on the subject though Gopalan was not given any relief. But the debate initiated through Gopalan’s judgment continued with added momentum. The emergency put in place by defaulting the constitution underscored the paramount need of the citizen’s basic and irreducible rights.
The Court which gave Gopalan’s judgment added insult to injury through the judgment in ADM Jabalpur v. Shivakant Shukla in 1976. But immediately after the emergency dragon was defeated by the common man in the streets a reawakened public realm witnessed the Court coming with the gospel of liberty and individual rights in a most ferocious way through the judgment in Maneka Gandhi v. Union of India (1978). Maneka buried Gopalan deep down under the soil of a regained freedom and personal liberties. Thereafter the Supreme Court championed the cause of the little man against the Leviathan or Goliath of state tyranny in any form. The Court inaugurated a saga of respecting and making all agencies and instrumentalities of the state also to respect the interests and rights even of the marginalized and voiceless ‘jetsams and float sams’ of the society. The Court succeeded in all the situation reaction tests it confronted in its mission to redeem the people’s “tryst with destiny”.
The Supreme Court never held the ground that it never fails. It fails despite being supreme and still the record shows that it is not infallible. A vigilant bar and informed and enlightened public instructed and informed by an activist media have ever worked effectively in establishing and preserving the corrective components on the functioning of the Court. The court itself has through innovative techniques developed sufficient tools to keep itself within bounds of constitutionality. Putting the burning issues involving substantial questions of law for the consideration of benches of different strength and devising means to do complete justice through innovations like a review, recall and curative jurisdictions, the Court has held aloft its head as the tallest of all institutions established under the constitution.
It protects the basic structure of the constitution despite recurring attempts to subvert the same originating from various quarters. In the course of the multidimensional and activistic performance, the court has a superior obligation to keep its independence and integrity intact. The dignity of the institution is in its personality. The trust and confidence it enjoys is due to the success with which the Court has kept its honour and pride visible and potent. But all is not well with the Court’s reputation and honour.
There are attempts to destruct the goodwill of the Court which it enjoys uninterruptedly and diligently. The Supreme Court of India is vested with twin obligations to preserve the identity and independence of the entire judicial process under the constitution as well as to preserve and protect itself from the hideously rash and belligerent acts of the desperate elements trying to make its position vulnerable.
Endangering the Court is jeopardizing the rule of law itself; shaking the bedrock of the Constitutionalism of the nation. In spite of absolute power under the constitution to declare what law is the Court is abused by contumacious behaviour of erratic brains. When acts of delinquency, attempts to thwart the majesty of law is made through acts in utter contempt of the court responses are strong and strict; and it ought to be very strong and strict coming from whichever quarters from within or from extraneous.
Contempt of the Supreme Court is abuse of the Constitution; it is abuse of the process of law; it pollutes the stream of justice; it makes independence of judiciary vulnerable; it shakes the confidence of the people; it vitiates the integrity of the nation. Contempt of the court is kept in check through the Constitution itself through articles 215 and 129. There is a special legislation, The Contempt of Court Act 1972, dealing with civil and criminal contempt. Civil contempt is an ordinary event which occurs throughout the realm of judicial process.
As far as civil contempt is concerned with respect to the High Court and Supreme Court it is experienced more as a means to implement the decisions of the courts. But criminal contempt is not merely disobeying the decisions of the court. Criminal contempt attracts serious dealing of the contumacious behaviour of the contemnor. It is scandalizing the court and even vandalizing verbally the ecosystem of justice administration. It causes tremors to the structure and edifice of justice administration-basic as well as the superstructure.
When the act resulting in contempt originates from a knowledgeable person its seriousness increases. When it comes from a media page gravity multiplies because the act is not only contemptuous but also defamatory, scandalous, and slanderous. It affects the opinion of the right-thinking members of the law-abiding public. When the act alleged as contempt is authored by somebody who is a part of the establishment of the judicial process the event attracts supreme attention and calls for strictest measures to defeat the contumacious tendencies.
Contempt of court committed by practising lawyers, sitting and retired Judges, other officers of the court need to be confronted with utmost seriousness. Practising lawyers are firstly officers of the court. It is their plenary and fundamental duty to see that the peace prevails for the adjudicatory process to be hassle-free and without hindrances. The lawyer represents the grievances of the litigant. The voice of the litigant is to be clear and audible to the court; it should not be obliterated by extraneous and intrusive factors least of a situation where the lawyer of the court involved on the wrong side.
A one-time incident can be excused, and the court is most often than not ignores or disregards and deals with leniently. But a lawyer of good standing and an activist one accuses the court, the judges and others the system will have to adjust the wobbling caused due to the malicious and contemptuous utterances; whatever be the past performance of the lawyer concerned in bringing to the attention of the court matters of great public importance. If you criticize a judgment for want of full justice not being done it can be taken professionally.
But if the criticism is levelled against the judges individually and collectively with sweeping allegations of corruption that is blasphemous and condemnable with courts coercive actions. Above all things the concerned person takes a nonchalant attitude and is not ready to say sorry for a while the stubbornness would only add to his culpability.
The Court is always rational in its approach. “Doing a hundred good things can’t give a person the license to commit ten crimes” said the Supreme Court on Thursday even as advocate Prashant Bhushan said he would “cheerfully submit to any penalty” in the criminal contempt case. This cautioning of the court has no effect as the concerned lawyer holds to his view expressed through tweets and other expressions. The bench of Justices Arun Mishra, BR Gavai and Krishna Murari was hearing Bhushan and his lawyers on the point of punishment when Bhushan read out his statement. He refused to apologize and said the two contentious tweets comprise his bonafide belief, and was a part of his duty as a citizen and as an officer of the court.
The bench asked Bhushan to reconsider this statement, observing it can be “very lenient” only if the person concerned can show a sense of remorse from the core of his heart. “Criminal contempt has serious consequences. Whatever has been done is done. But we want the person concerned to have a sense of remorse. The person must reconsider,” said Justice Mishra. The accused lawyer is adamant in defending the tweets. “It is after all about if a person wants to purge the contempt. One should realize where is the line, the ‘Lakshman-Rekha’.
There is no person on earth who can’t commit a mistake. A person should be able to realize he has committed a mistake. The News media reported, Justice Mishra further said, “There is a ‘Lakshman-Rekha’ for everything. Why cross it? We welcome pursuing good cases in the public interest but remember, it is now after conviction. And it is a serious thing. I haven’t convicted anyone of contempt in 24 years as a judge. This is my first such order.” The transactions in the Court on 20-08-2020 were after the conviction when the court was deliberating on the punishment. Even then the delinquent remained unmoved, and it led to the interference of the Attorney General in favour of the accused. He did not have the sensibility to capture the opportunity and signal to the court his stand that what was tweeted was unintentional. Attorney General KK Venugopal requested the bench not to punish Bhushan, citing his good work as a lawyer.
Referring to Bhushan’s tweets that led to his conviction, Venugopal added he has a list of five judges who talked about lack of democracy in the Supreme Court. “I also have a list of nine judges who talked about judicial corruption. Many judges have said it,” contended the top law officer. But the bench told Venugopal that it is not hearing a review petition and that Bhushan’s conviction order stands. The court also requested AG to go through Bhushan’s affidavit in justification of his tweets, saying it needs to examine if his reply is a defence or an aggravation of contempt. The learned Attorney General has constitutionally guaranteed privilege for an audience of all courts in India.
But here the court politely declined to hear him as the conviction was already recorded and the punishment was being considered. Hence there was no relevance for AG’s interference at that juncture. This is not an ordinary contempt case. The contemnor is so openly defiant and repeatedly challenging the court declaring his stand against the court. Still, the Court gives time to ponder over the consequences. But he forecloses all opportunity. An incongruity existed when the court requested the lawyer to reconsider the recalcitrant stand and think of all aspects and realize his mistake.
On the other hand the delinquent lawyer wants his review petition to be taken before the punishment is prescribed. The Court asks the lawyer to review his stand; the lawyer in turn asks the court to review its stand. A level playing ground; this is the grace of law. This is how constitution is protected by the Court. The magnanimity of the court is allowed to be squandered by the stubborn stand of the lawyer reflected in the additional statement filed before the court on 24-08-2020. Why does he challenge the top court of 138 crore people? The answer is clear and straight. He gets support from all desperate elements feeling restive with the central government. This is evident from the extraordinary voices heard from the wilderness of opinions.
One MP from West Bengal screamed that the Supreme Court is a court of rights ant of contempt and let loose a pedestrian defence of Bhushan on a matter which is sub judice. “Bhushan had been fairly caustic in his observations about the court, post the migrant wage-payment writ being dismissed. When he reappeared before the court in a different case, their Lordships hauled him up for “insulting the institution” and asked why they should hear him given that he appeared to have no faith in it. To which he said that he was only expressing his deep anguish at the bench accepting the Centre’s representations without verification. Was he wrong in saying that? Was it wrong to expect a neutral arbiter of disputes to doubt those before it, equally?” ‘The Supreme Court of India is a Court of Rights, Not of Contempt’ by Mahua Moitra. “As Indians, we have watched helplessly in the past months as the government has held our liberties and constitutional values to ransom, while the court appears to have abandoned us.”[This article was originally published on April 29, 2020, and was republished on August 14, 2020, after the Supreme Court found Prashant Bhushan guilty of contempt.]
A reading of the article would show that the author’s grouse is against the Central Government. But she assumes that the Court is biased and then the harangue. Another instance the president of the Supreme Court Bar Association and a senior advocate Dushyant Dave in a chat with Karan Thapar of The Wire castigates the Court in strong terms. The caption of the published piece reads thus, “‘SC’s Contempt Move Astonishing, Bhushan Right in Wanting Justice Mishra Replaced’: Dushyant Dave”.
“The Supreme Court Bar Association president tells Karan Thapar that it does look as if Prashant Bhushan is being singled out and victimized.” [Note: This interview was originally published on July 28, 2020, and was republished on August 14, 2020, after the Supreme Court found Prashant Bhushan guilty of contempt of court.] “Dave said it does look as if Prashant Bhushan is being singled out and victimized. Speaking about the second contempt case, Prashant Bhushan faces, which arises out of one of his tweets commenting on a photograph of the Chief Justice sitting on a Harley Davidson, Dave said this “definitely does not amount to contempt”. He said “scandalizing a judge is different to scandalizing an individual”.
The lawyer added that “today’s judges are completely oblivious to law”. He said, “Freedom of speech is a sacred right… it cannot be taken away by contempt action”. Another heavy weight punches the Court with even more vehemence. Arun Shourie, again via Wire and Karan Thapper’s TV show comes down on the Court. The heading of the talk is, “Bhushan’s Contempt Conviction Shows SC’s Insecurity Borders on Paranoia: Arun Shourie”. Arun Shourie asks Karan Thapar, “How can a puff of two tweets shake the central pillar of the largest democracy in the world?”.
See the temerity of the person who had held constitutional posts. But anyone with a fair degree of common sense would understand that the main aim of Shourie is not the court but the Prime Minister. “In a 40-minute interview to Karan Thapar for The Wire, Arun Shourie said that he had no doubt judges have assisted in the erosion of democracy. In fact, he went further and said they were guilty of assisting in an assault on democracy. “I say this as a person who knows Modi better than the judges. Democracy has been eroded. Have they assisted in it? … they should look at the mirror and ask themselves that question.” Shourie said Prashant Bhushan’s tweet alleging the Supreme Court and the last four chief justices have played a particular role in destroying democracy “is an understatement”.
He said the Court “has assisted in an assault on democracy”, not just in erosion of it. Asked if he was worried that since Bhushan’s tweet alleging the Supreme Court and the last four chief justices have played a particular role destroying democracy is considered contempt this could mean his charge that Supreme Court judges have assisted in an assault on democracy might also be considered contempt, Arun Shourie said he was not worried. He acknowledged the possibility that someone could view it as contempt but was unconcerned by that.”
This is yet another way of threatening the court boardering on intimidation. The irony is that these people who exercise their “freedom of speech and expression” against the Court, Government and the Constitution have no body’s mandate. They do not represent either the public at large or the lawyer community. In fact, the real story is otherwise. Majority of the lawyers’ fight for poor and average litigants and those lawyers are not ready to fight with the Court and the judges. But a minuscule fraction is out to jeopardize the administration of justice. While the Bhushan cacophony was going on a group of 700+ lawyers wrote a letter against the limitless intrusions made by the vested interests and praying for preventive and remedial actions.
The Hon’ble Chief Justice of India,
Hon’ Supreme Court of India,
We the undersigned lawyers want to register our concerns with regard to the trend that has emerged in recent times to browbeat and intimidate the judiciary. India has witnessed a series of attacks by institutional disruptors against judges who are unwilling to agree with them and toe the line drawn by them.
It is unfortunate that when political ends of lawyers are not served by a decision of the court, they vilify the court by making scandalizing remarks. The Supreme Court of India as well as the judges are subject to both scurrilous language, malicious attacks and scandalizing remarks. Legitimate criticism of both judgements and the functioning of the institution has always existed however when the criticism is calculated and actuated by malice, it is the authority of the court which is undermined.
If the judiciary is to perform its duties and functions effectively, it is essential to protect the dignity and authority of the courts. The foundation of the judiciary is the confidence of the people in its ability to deliver justice. The actions of these institutional disruptors through I name calling and usage of certain phrases such as ‘Supreme Court has destroyed democracy’; ‘the Supreme Court is killing the Constitution’ have the tendency to destroy the faith of the public in the judiciary.
We urge you to uphold the edifice of the judicial system and protect the third pillar of our democracy from those who peddle falsehood to destroy the institution. We sincerely hope that the Supreme Court of India ensures that such persons are dealt with in an exemplary manner, even if such actions are taken thirteen years later or else such trends will only accelerate and strike a blow to the guardian of the rule of law.
This is one instance and a positive counter to the indiscriminate and licentious attitude of a section of the so-called intellectuals ever ready to embarrass the nation. It reflects the true sentiments of the right-thinking majority anxious to protect and preserve the majesty of the law. Targeting a particular or individual judge, one cannot malign the whole institution. The vast majority of the lawyers and the judges are highly sceptical of the attitude of the so-called intellectuals who have kept ready their signature to forward charge sheets shrouded in the cover of letters motivated only by ennui and frustration. They come from various sections and are leading a retired life and are in the service of ‘Kumbkarna’.
At times, they awake and take cudgel against the government and the court by lending signatures to propel desperados. The most unfortunate part is that a few retired judges have also joined the verbal abuse of the Court and its judges. This is demeaning the prominence of the exalted position they held under the constitution. Constitutional morality being considered as a part of the basic structure of the Constitution, even after laying down office formally, a judge should keep the dignity and decorum attached to the position once he adorned.
There should be a convention attached to the concept of constitutional morality that the retired judges should be keeping the sanctity of the constitutional oath taken during their swearing-in ceremony. Just like the oath of allegiance and secrecy binds a minister and prevents him from disclosing the transactions of the cabinet even after demitting office, the judges also must keep reticence while expressing opinions on matters of relevance to the law and the constitution.
This is a factor on which the sitting judges also be alert; especially with the immediate experience of senior-most judges going to the media and unleashed an open attack on the functioning of the court. There is only one Supreme Court; though several benches are constituted for the efficacy of justice administration. The Court has only one seal; one name; one personality. Perhaps a day may come the judges will have to be collectively responsible to the Court and every judgment delivered be deemed to be one delivered by the whole court in its entirety.
There can be a constitutional amendment to bring it on par with the constitutional position obtained in the case of the cabinet and the ministers. Collective responsibility is a doctrine which ought to bind the judiciary as much as it binds the legislature and the executive. Article 75 provides for collective responsibility or otherwise known as collective ministerial responsibility as a constitutional convention frozen in the democratic polities. Similarly, a convention of collective judicial responsibility would lead to a healthy convention in the judicial process also. Article 75(3) provides thus, “Other provisions as to Ministers, “The Council of Ministers shall be collectively responsible to the House of the People”.
But viewed from any angle the damage done to the majesty of law and the stature of the Court and the sanctity of the constitution by a section of the media and responsible persons like lawyers and retired judges far exceed in poignancy and pain than the small aberrations, if any, contributed by the judiciary. History of contempt in India unequivocally clinches the position that as far as Judiciary is concerned “it is more sinned against than sinning.”