A STORM
IN THE JUDICIAL TEACUP –
THE
CONVICTION OF PRASHANT BHUSHAN
P M Ravindran, raviforjustice@gmail.com
14 Aug 1947- the day
before the night when the colonists transferred power to Jawaharlal Nehru, paving
the way for Indians to celebrate an Independence Day. Three years later We
adopted a Constitution promising, among Utopia, LIBERTY of thought, expression,
belief, faith and worship.
14 Aug 2020, Adv Prashant
Bhushan of the Supreme Court was convicted on charges of Criminal Contempt of
Court for his two tweets-one, alleging that the last four Chief Justices of
India were corrupt and the second on the current CJI posing on a Harley
Davidson motorbike, claimed to be owned by a BJP loyalist.
Apparently, there is
nothing contemptuous in the above tweets but the insinuation of the court being
a hand maiden of the current ruling dispensation cannot be missed. And that is
what has raised the storm in the tea cup.
Having said that it must
also be said that the Contempt of Court Act is sweeping in its definition of
criminal contempt. Sec 2(c) of the Act
states:
‘criminal contempt’ means the publication
(whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act
whatsoever which (i) scandalises or
tends to scandalise, or lowers or tends to lower the authority of, any court;
or (ii) prejudices, or interferes or tends to interfere with, the due course of
any judicial proceeding; or (iii) interferes or tends to interfere with, or
obstructs or tends to obstruct, the administration of justice in any other manner;
There were many online
magazines-the Print, the Wire, OpInida, FirstPost, LinkedIn- that had taken up
the issue as if it that was the only thing worthy of discussion, in these days
of a pandemic. Among main stream media too Indian Express, Hindustan Times and
India Today had written many times on the subject.
The ball had been set
rolling as early as on 01 Aug 2020 by Yogendra Yadav asserting that ‘many
former judges have joined citizens and activists including him, in support of
Bhushan’. (https://theprint.in/opinion/why-i-look-forward-to-prashant-bhushan-contempt-case-if-full-and-fair/472503/)
On 14 Aug 2020, reporting
the conviction, OpIndia asserted: ‘Some ‘liberals’ who wanted ‘contempt of
court’ proceedings against those they did not agree with, but are now defending
Prashant Bhushan’ (https://www.opindia.com/2020/08/prashant-bhushan-contempt-of-court-supreme-court-credibility-rajdeep-sardesai-nidhi-razdan/amp/).
This made sense because Prashant Bhushan was among those who had rejoiced in
the conviction of high court judge Karnan under the same laws. Karnan had
specifically written to all the authorities alleging corruption in the High
Court of Madras and even his own discrimination, a crime under the SC/ST
Prevention of atrocities Act. Finding no action taken on his complaints he was
more justified in going public with his allegations than Prashant Bhushan in
the present case.
The interesting thing
about the whole sordid saga is that those who had commented on this and other
reports on the subject, were more divided on political lines rather than on the
core issue, that is of the relevance of a totally anti-democratic law in a supposedly
democratic country like India.
People seem to forget that
the very term democracy connotes that the people are supreme.
The National Commission to
review the working of the Constitution had rightly reported, 'The highest
office in our democracy is the office of citizen; this is not only a platitude,
it must translate into reality'. The Report goes on to add: 'the crucial
failure is the innate resistance in governments and governmental processes to
the fundamental article of democracy, viz. that all power and all authority
flows from the people and that all public institutions are meant solely to
serve the public interest. The assurance of the dignity of the individual
enshrined in the preamble of the Constitution has remained unredeemed; From this
fundamental breach of the constitutional faith flow almost all our present
ills. The first and the foremost need is
to place the citizens of this country at center-stage and demonstrate this
prioritization in all manifestation of governance'.
To my mind this applies as
much, if not more, to the judiciary, than to other governmental processes. This
is because judiciary, we are given to believe, is the ultimate refuge of an
aggrieved citizen.
In 2004 I had written my
first letter on Judicial Reforms to the then Chief Justice of Kerala High
Court. The first issue dealt with was: Contempt
of Court Act – anathema to the very concept of democracy. The other issues
included: Judicial accountability and the National Judicial Commission, Judicial
Accessibility and The Judicial process. The judicial process itself discussed Personal
appearance of litigants/representatives, Involvement of advocates, Citizens’charter
and working hours, grading of advocates and establishing norms for fees and Irrationality
and unfairness of decisions.
This was followed by a one-man
satyagraha in front of the Kerala High Court in 2005, posing just one question:
who will judge the judges? To the advocates who came to me then and said that I
was defaming the institution of judiciary I had responded that it was only the
judges and advocates who could defame the institution.
Later, in 2007, I had
participated in the Jan Sansad organized at Jantar Mantar by National Alliance
of People’s Movements, led by Ms Medha Patkar. In that fortnight long Sansad it
was planned to discuss issues affecting the people at large, in the forenoon
sessions and in the afternoon the public servants, bureaucrats and ministers,
dealing with those subjects would respond to queries on those issues.
Unfortunately, the politicians and babus gave the afternoon session the miss.
I was waiting for issues
related to judicial reforms to be taken up. After the Sansad had progressed considerably,
I took up the matter with Medha Patkar directly. And I was told that the legal
advisor of the movement had advised her not to take up any issue regarding
judiciary as that would adversely affect proceedings in various courts against
activists of the Movement. This is the same reason that Prashant Bhushan had
also stated for MPs unwilling to sign impeachment motions against judges.
In a supplementary
affidavit he had submitted to the apex court on 15 Sep 2010 in another contempt
petition against him (Contempt Petition (Crl.) No. 10 of 2009) para 26 reads as
However, despite the fact that there was
documentary evidence of serious charges of corruption against Justice Anand it
was not possible to get the impeachment motion signed by the requisite number
of MPs against a sitting Chief Justice of the Supreme Court. It has been our
experience that MPs are very reluctant to sign an impeachment motion against a
sitting judge of the Supreme Court or a sitting Chief Justice of a High Court,
even if one has documentary evidence of serious charges of misconduct against
the judge concerned. This is because of a fear of judicial backlash against the
MP or his Political Party most of whom have cases pending in the courts.
In 2010, a three-judge
Bench headed by Altamas Kabir had issued notices to Bhushan and Tejpal, then
editor of Tehelka, but the case only came up for hearing now when the SC
recently initiated a fresh contempt case against Bhushan. (‘Explained: In
Prashant Bhushan case, larger questions over contempt’, August 26, 2020; https://indianexpress.com/article/explained/supreme-court-prashant-bhushan-contempt-case-6569845/)
Arun Mishra headed bench
did give opportunities to Prashant Bhushan to tender apology before announcing
the verdict on the nature and quantum of punishment. But Bhushan has stood by
his tweets which obviously is commendable.
In the meanwhile, another
advocate, Yatin Oza, President, Gujarat High Court Advocates’ Association offered
“unqualified and unconditional” apology in another contempt of court case
initiated following a press conference in June, in which Oza had alleged “favoritism”
and “forum shopping” by advocates and the administrative side of the court.
In its judgement of 26 Aug
2020, the HC noted his “repeated acts and conduct of contempt” in the past,
from which the court concluded that his latest apology “is not bona fide and
lacks sincerity and therefore, an unacceptable proposition”.
Miera
Kumar, as the Speaker of Lok Sabha, had also observed:
"As
a citizen of this country and as a lawyer who had practiced for many decades,
it is a matter of agony if there is even a whisper of an allegation against a
judicial officer … But the fact is that allegations against judicial officers
are becoming a reality. One Chief Justice has said that only 20 per cent of the
judges are corrupt. Another judge has lamented that there are no internal
procedures to look into the allegations. Therefore, the necessity of a
mechanism is being emphasized by the judges themselves. Then the question
arises as to how this mechanism would be brought about and as to who would
bring it. The fact of the matter is that the judiciary is the only unique institution
that has no accountability to the people in a democracy. In this overall
context, it is absolutely essential to involve outside elements in the process
of judicial accountability."
E.M.S
Natchiappan heading the then Parliamentary Standing Committee on the Ministry
of Law and Justice had commented that 'Judges appointing judges is bad enough
in itself; judges judging judges is worse.'
And
here are the headings of a couple of reports that are not expected to diminish
the status of courts in the eyes of the public:
“Rs.
20000 dispute is settled after 33 years” - Times of India dt. 27/10/2008
“After
40 years and Death of Litigants, family wins case” - Times of India dt.
8/12/2009
Ultimately,
the following facts cannot be disputed:
Lawmakers
without any prescribed qualifications, qualities or experience; law enforcers
without any accountability but with all the scope for distorting and
manipulating data required to aid decision making; and the law interpreters
with all the leeway for making whimsical and wayward decisions without even the
fear of being questioned sums up the gifts of our Constitution.
Further,
among these three organs, the lawmakers are (theoretically, at least)
controlled by the people, bureaucracy (yes, bureaucracy, because without the active
support of the bureaucracy no politician can do any wrong!) and finally the
judiciary; the law-enforcers are also controlled by the lawmakers and the
judiciary. And then there are the ears and eyes of the people- the media
waiting to sensationalize every news involving the misdemeanor of these
authorities. Despite such strict supervision and control all that we can hear
these days are about politician-bureaucrat-underworld nexus even though the
fact remains that none, worth the name, from this unholy nexus have ever been
punished by the holier-than-thou judiciary.
So
now think how bad a system can be, that is not only NOT subject to supervision
but also kept beyond critical observation. Well isn’t our judiciary is just
that? And do I need to recapitulate that quip: power corrupts, absolute power
corrupts absolutely?
And now the anticlimax. Prashant Bhushan
has been fined Re 1/-, to be paid within 15 days of the order or face
imprisonment for 3 months and bar on practice for 3 years. The ludicrousness of
the verdict has been aptly captured in a cartoon that had appeared on Facebook.
Have a look at it:
(Giving a one-rupee coin to a beggar the lady is seen saying: what happened? Even Supreme Court judges are satisfied with it.)
Of course, Prashant Bhushan has
announced his right to appeal. But in one of the rarest of rare cases in the
history of judiciary the convict’s advocate has paid this fine for the convict.
Is anybody surprised at a senior advocate like Dushyant Dave carrying small
change in his pocket? I am not.
I have heard that Ms Jayalalitha, as
the CM of Tamil Nadu, used to accept only Re 1/-as salary. Though symbolic, its
ramifications were great. It officially made her responsible for her actions as
the CM.
Here too, Prashant Bhushan has been
officially punished. The court can be happy the ends of legality has been met.
The convict can go on appeal and/or go to sleep. And till that appeal is
dismissed the conviction would not be final.
My heart bleeds for the lakhs of
undertrials in our jails who are rotting there on charges of petty crimes
because they cannot afford bail.
And whither nature’s law that the
higher you are, the heavier the fall?
To conclude I shall list
the following for the consideration of the readers:
1. Contempt of court is
anathema in a democracy. Democracy demands a Contempt of Citizen (Prevention
of) Act.
2.
Disobedience of court orders, which is catered for as civil contempt, should be
covered under existing provisions of law dealing with disobedience of orders of
a lawful authority.
3.
As it stands, the court, having taken suo moto cognizance of the tweets to be
prosecuted for contempt, is right in convicting Prashant Bhushan.
4.
As per reports, it wanted to give time to Prashant Bhushan to consider
apologizing, before deciding on the punishment. This was unwarranted. Apology
can only be for errors committed unknowingly or by mistake not for deliberate
comments or action made or done in public.
5.
We know that in all disputes before a judge there are two parties, and each
will have some facts, some laws and some precedence/ case laws to support their
stands. Ultimately the judge can as well toss a coin and decide whom to favor.
But even then there is an element of fairness. There are worse reasons where
the judgments can be as whimsical and wayward as whimsical and wayward can be.
6.
A former CJI had himself commented that 20 percent judges are corrupt. But till
date we have not heard of a single judge being punished for corruption.
7.
An apex court bench had observed that there is something rotten in the
Allahabad High Court. Again, we do not know what action has been taken to clean
up.
8.
A high court judge, P D Dinakaran, resigned on the eve of being impeached. But
is resignation a punishment for his crime(s)? Why hasn't he been prosecuted for
his crimes, one of them being grabbing land meant for rehabilitating some of
the marginalised sections of the society?
9.
Another high court judge, Karnan, had made many allegations against his
colleagues. Were they investigated? By whom? What was the result? Doesn’t the
citizen, tax payer have a right to know the facts/truth?
10.
We know that high court and supreme court judges can be removed only through
impeachment. And there appears to be no laws for any other form of punishment.
Even the National Commission to Review the working of the Constitution had only
recommended empowering the Chief Justice to withhold work from judges against
whom allegations have been made.
11.
But Karnan was sent to 6 months prison for contempt of court. Doesn't it imply
that contempt of court is the greatest crime of this land and that the other safeguards
provided to judges wouldn't save them from prosecution under this law?
12.
Suffice to say that there is a need for a National Judicial Commission for
trying and punishing errant judges as per laws applicable to every citizen. And
this body/institution should be free from judiciary, except, may be, for a law
qualified person to guide the proceedings. The logic is simple. The credibility
of the judiciary itself rests on the concept that it is an indifferent and
objective third party in the disputes brought before it for adjudication.
09 Sep 2020.
