Interview: Justice A.P. Shah

Justice A.P. Shah: Supreme Court comes across as an intolerant institution

Print edition : September 11, 2020

Justice A.P. Shah. Photo: Sushil Kumar Verma

Interview with Justice A.P. Shah, former Chief Justice of the Delhi and Madras High Courts and Chairman of the 20th Law Commission of India.

Justice A.P. Shah, former Chief Justice of the Delhi and Madras High Courts, weighed in on the contempt proceedings against Prashant Bhushan in an interview with Frontline. Not one to mince words, the Chairman of the 20th Law Commission of India said that the Supreme Court now appeared to see the world only through the executive gaze and in doing so was failing in its duty to protect fundamental rights.

Does holding Prashant Bhushan guilty of contempt over a couple of tweets amount to judicial overreach? Will this verdict have a ripple effect and rob young lawyers of the freedom to raise valid questions about the judiciary?

There is no doubt in my mind that with this decision, the Supreme Court has come across as an intolerant institution. It has effectively announced to the world that it is not open to any criticism. The more concerning aspect is how and why the court appears to be going after Mr Bhushan for these tweets.

The tweets in question are actually fairly trivial and inconsequential, which even the Supreme Court realises. This probably explains why the nine-year-old contempt case against Mr Bhushan was tagged on here.

With regard to the tweet where Mr Bhushan refers to personal liberties being destroyed, he could have arguably been more diplomatic in his choice of language, but it does not take away from the fact that it is the truth. Even I have said the same thing very often. And many historians, legal scholars, senior advocates, policy experts, political scientists, and other public intellectuals have expressed similar views.

This decision is surely going to have a chilling effect, and will cause a complete curtailment of the most precious rights of all the fundamental rights—Article 19.1 (a)—the freedom of speech and expression. This right to freedom of expression is important not just for young lawyers. It is important for everyone who is critical of the court. With this decision, the court has basically sent out a message that no one must criticise the institution, and everyone must stay quiet.

Increasingly, people feel that the Supreme Court is no longer the court of last resort. By holding Prashant Bhushan guilty of contempt, do you think the apex court inadvertently ended up doing what it accused Bhushan’s tweet of doing, that is, eroding the trust of the public in the judiciary?

I have already long been sceptical of the ability of the Supreme Court of today to really protect our freedoms. More than the decision finding Mr Bhushan guilty of contempt, the manner in which the court went about all this is what is worrying. And certainly, this will, if [it has] not already [done], diminish the dignity of the court.

The judgment itself was clearly problematic. Criminal contempt is in the nature of a trial. Evidence must be recorded wherever available. Full opportunity to be heard must be given to the alleged contemnor. All defences must be considered. None of this happened in the present case. Mr Bhushan had claimed that truth was his defence, and made a 135-para submission. In the judgment that was delivered finally, there is not a whisper of his defence. It merely reproduces some law and declares Mr Bhushan guilty. In fact, during the sentencing hearing, the judges reportedly admitted that they had not even completely read the affidavit. When counsel for Mr Bhushan tried to read out aloud the paragraphs that the judges claimed they had not read, he was not allowed to read them out. The Attorney General, Mr Venugopal, reportedly supported Mr Bhushan. He categorically said that similar statements had been made by many, including former judges, and therefore he should not be sentenced. Reportedly, his arguments were brushed aside.

The point made in Prashant Bhushan’s tweet, addressing the issue of the judiciary’s conduct over the past six years, has been raised by many citizens. By convicting Prashant Bhushan for airing such views, is the judiciary sending a warning to all that it will not tolerate scrutiny of any kind? Independence of the judiciary and its effective role in society, one would imagine, were the most pertinent issues of the day. By suppressing debate or dissent around this, is there an attempt at muzzling critical views?

Seventy years ago, the Supreme Court itself identified its role as that of a sentinel on the qui vive, on the alert—its constitutional and self-acknowledged role is that of the protector of fundamental rights. But I worry that this self-awareness might have diminished over the last several years. Most recently, we have had a series of cases that have highlighted this concern of how the Supreme Court is handling serious issues—whether it is the migrant workers’ situation; the Citizenship (Amendment) Act; preventive detentions; electoral bonds; suppression of protesters’ voices; the use of draconian laws of sedition; the broad interpretation of the Unlawful Activities (Prevention) Act last year in NIA vs. Zahoor Watali, which has effectively denied bail rights to arrestees under the law and given the police and prosecution a free rein. It appears as though the Supreme Court now sees the world only with the executive gaze. And in doing so, it is failing in its duty to protect fundamental rights.

Indeed, many of the more important cases that are being brought before the court are either being avoided outright, with the court looking the other way, or brushed under the carpet.

Obviously, the court is muzzling critical views. Actually, our judges should use this as an opportunity to introspect, and it’s sad that they should go on the defensive like this by attacking Mr Bhushan.

Contempt is being increasingly used to silence lawyers. Yatin Oza, for instance, was stripped of his “senior” advocate tag by the Gujarat High Court and is battling criminal contempt proceedings over a press conference. What place does a contempt law have in a democracy? Even the English, to whom we owe this law, have repealed it in their land. Isn’t it time for India to do the same?

The law of contempt has its origins in the principle that “the authority and dignity of the court” must be “respected” at all times. As with so many of our colonial-era laws, this principle has monarchical origins, when the King of England delivered judgments himself. But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy. In its home country, the law was repealed on the recommendation of the UK Law Commission.

Through acknowledging the irrelevance of this law in modern times, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that its utility and necessity have long vanished. We have seen a series of cases where courts have judiciously and sensibly ignored critical comments, and not commenced contempt proceedings (which in another era would have been the case).

Regarding the role of the Bar—I think it is important to remember that at all times, the Bar has been at the forefront of public life in India, since the time of our freedom struggle. Many lawyers and the Bar were responsible for fighting against the establishment during the Emergency. In the Bombay High Court “four judges” matter, the Bar passed an important resolution signalling its adherence to and upholding of the rule of law. The Bar cannot be emasculated. The end result of all this will only be a chilling effect, where young lawyers will not speak out against excesses of the court, judges or their misdemeanours.

With its decision in Mr Bhushan’s case, where it has merely reproduced some earlier judgments, and not dealt with any of the defences, arguably the Supreme Court's credibility is now at stake, and indeed, you could even argue that its international standing is shaken. Instead of fears that the tweets might have affected the court’s authority and dignity, its decision has in fact worsened its own reputation.

Sitting judges of the Supreme Court are openly singing paeans to the Prime Minister. Is this an unprecedented situation where the judiciary and the political class are blatantly hobnobbing, and why is it wrong?

Sycophancy among Indian judges is not a new thing. One recent example was of Justice Arun Mishra, speaking at the International Judicial Conference 2020, which had government ministers and senior judges from over 20 countries in attendance, praising the “versatile genius” of Prime Minister Modi to “think globally and act locally”.

The truth is many sitting judges in the Supreme Court have exhibited such behaviour even when they were in the High Courts. There is so much deference in the utterances of the judges. One expects a natural tension between the executive and the judiciary. The atmosphere is all too friendly here these days.

Under the garb of the pandemic, institutions have been made to shut down. Parliament is not functional, the police force is deputed to handle the pandemic, the judiciary has not resumed physical hearings properly. No other country has come to such a standstill as India has, and the only functional authority seems to be the executive. Why does this feel like a foreboding?

Indeed, this is a very worrying time. As I have said elsewhere, today in India it seems as though only the executive is actually working. Every other relevant body is either not working voluntarily or has been sidelined or silenced. This is true not just in India, but in other parts of the world as well. With the announcement of the lockdown the world over, there were legitimate fears that the situation would be used to suppress dissent and consolidate power. In a few countries, the validity of the lockdown has also been taken to court and challenged. India has been no exception to this abuse of power and the consequent fears. The central executive has become all-powerful, and all accountability mechanisms have been diluted. As scholars have pointed out, this is how elected autocracies emerge, and this is how democracies die.

Two years ago, four judges had blown open the lid of mismanagement in the roster of the Supreme Court and forewarned that democracy was in danger. In the past, courts have been extremely squeamish and intolerant to any allegation of corruption. But when some former judges accept plum postings or privileges from the government of the day, does it not muddy the waters?

The press conference of the four judges against the misuse of the master of the roster process by the then CJI was most unprecedented in the history of India or any judiciary. But what happened thereafter? Successive CJIs used the same bench, and blatantly and disappointingly continued the same practice.

Senior Advocate Mr Dushyant Dave has asked why politically sensitive matters are being given to certain benches, and why some judges are not being given important matters to handle at all.

An independent judiciary is a core and essential feature of a democracy. The “master of the roster” culture goes against the philosophy of an independent judiciary. If we really want to change the system, we must remove the opportunities for abuse that are offered by systems like the master of the roster, and start afresh. The Indian judiciary needs a lot of cleaning up. It is not impossible to do. We must have the willpower to do so, that’s all.