When silence is not the answer

Print edition : September 11, 2020

Prashant Bhushan after the Rafale case hearing at the Supreme Court on April 30, 2019. Photo: Shiv Kumar Pushpakar

The Supreme Court of India. Photo: Sushil Kumar Verma

Justice Arun Mishra. His bench kept the case alive. Photo: Sandeep Saxena

K.K. Venugopal , Attorney General for India. Photo: R.V. Moorthy

The Supreme Court’s use of its inherent powers to punish activist-lawyer Prashant Bhushan for contempt of itself raises troubling questions about its recent past besides inviting a huge backlash from the civil society.

“I live with the realisation that I have received from this institution much more than I have had the opportunity to give it…. Today, in these troubling times, the hopes of the people of India vest in this court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive. This casts a duty, especially for an officer of this court like myself, to speak up, when I believe there is a deviation from its sterling record. Therefore, I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of people’s rights…. An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be sincerely made…. If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of conscience and of an institution that I hold in highest esteem.”

—Prashant Bhushan, activist and Supreme Court lawyer, in his supplementary statement to the Supreme Court on August 25 in response to the court finding him guilty of contempt of court.

His offence: he posted two tweets in June critical of the Supreme Court’s functioning during the lockdown, and of the last four chief justices of India, for their role in the ‘destruction of democracy’.

The three-judge bench of the Supreme Court comprising Justices Arun Mishra, B.R. Gavai and Krishna Murari, while considering Bhushan’s supplementary statement, before sentencing him for contempt, said: “What is wrong in using the word “apology” or seeking apology? Will it amount to admission of the guilt? Apology is a magical word, which can heal many things. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that.”

For a dispassionate observer of the proceedings before the Supreme Court in this case, the answers to the questions posed by the bench were available in Bhushan’s supplementary statement. Therefore, the bench’s inquisitive queries on apology made many wonder whether it read and understood Bhushan’s initial and supplementary statements in their entirety.

The word ‘incantation” used by Bhushan in the statement is an answer to the question why ‘apology’ should not be be used as a magical word to heal an imaginary hurt, and in that process, evade punishment.

The bench’s reference to Mahatma Gandhi’s use of apology appears to be aimed at Bhushan himself relying on Gandhi in his first statement, which he submitted to the court on August 20. Bhushan said then:

“My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic…. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bona fide belief. Therefore, I can only humbly paraphrase what the father of the nation, Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to the highest duty of a citizen.”

Mahatma Gandhi refused to apologise to the court even when he was asked to in the contempt of court proceedings against him because he genuinely felt that he did no wrong by publishing and commenting on a letter written by a judge, which might affect pending proceedings in the high court, in the public interest.

It is not clear whether the Supreme Court bench was aware of the historic context in which Gandhi made those remarks refusing to apologise, and offering himself to be punished, which inspired Bhushan to do so similarly in the contempt proceedings against him. Had Gandhi wanted to apologise in order to heal the sense of hurt of the judges—as the Supreme Court felt on August 25 what a contemnor is expected to do—it would have certainly appeared as insincere. But, like the judges of the Bombay High Court in the colonial era, it appeared the three judges had no compunction in seeking an unconditional, involuntary, and insincere apology from Bhushan. It is not as if Bhushan would refuse to offer regret if he had realised that he was in the wrong. On February 1 last year, he had tweeted about the deliberations of the committee headed by Prime Minister Narendra Modi to select a new director for the Central Bureau of Investigation (CBI) after the removal of the then Director, Alok Verma. Bhushan, quoting a letter written by the Leader of the Opposition and Congress leader, Mallikarjun Kharge, (who was a member of the selection committee) had hinted at the possibility of the Attorney General for India, K.K. Venugopal, submitting, on behalf of the Centre, fabricated minutes of the meeting of the selection committee to the Supreme Court which was hearing a challenge by Alok Verma against his removal. Venugopal, who had submitted the minutes in a sealed cover to the bench headed by Justice Arun Mishra, alleged that Bhushan had intentionally raised doubts about his integrity and honesty. When Bhushan realised his mistake, he admitted it to the court, and Venugopal requested the court to drop the contempt proceedings against him, saying he accepted Bhushan’s admission, and did not want him to be punished.

In the same case, however, Bhushan had sought the recusal of Justice Arun Mishra from hearing the contempt case. When Justice Arun Mishra refused to recuse himself and sought his unconditional apology for seeking his recusal, Bhushan declined.

Rather than close the proceedings following Venugopal’s request, the Arun Mishra bench kept it alive, in order to legally determine the status of comments being made in respect of sub judice matters, and also answer Bhushan’s plea for recusal of Justice Arun Mishra. The court, however, could not take this case further after hearing it last on March 7 last year.

What surprised observers was that the bench, after issuing notice to Bhushan for his two tweets on July 22, also decided to hear a 11-year-old contempt of court case against him, which had not been listed after 2012. In this case, Bhushan had given an interview to Shoma Chaudhury of Tehelka magazine, alleging corruption in the higher judiciary. Bhushan had claimed that half of the previous 16 chief justices of India in 2009 were corrupt. As his list also included the then Chief Justice of India, the late S.H. Kapadia, contempt proceedings were initiated against Bhushan, on the request of the Amicus Curiae in another case, Harish Salve.

In this case, Bhushan had alleged that Chief Justice Kapadia heard a case concerning Sterlite Industries in which he had certain shares that made him vulnerable to the allegation of conflict of interest. Chief Justice Kapadia claimed that he had disclosed the fact of his shareholding during the hearing of the case, and counsel, in response, had no objection whatsoever to the matter being heard by him. But then the people who were aggrieved by Sterlite’s project were not before the court, and in Bhushan’s view, their view would have mattered whether Chief Justice Kapadia could hear the matter, despite the obvious conflict of interest. Subsequently, however, Bhushan told the court that he had the highest regard for Chief Justice Kapadia, and no disrespect was meant to him in the interview.

On July 14, 2010, the bench comprising Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu had referred to Salve’s allegation that Bhushan’s interview deliberately aimed at tarnishing the image of the judiciary as a whole, particularly a sitting judge of the Supreme Court, in the eyes of the general public without any foundation. The bench had also held the then editor of Tehelka magazine, Tarun Tejpal, allegedly responsible for lowering the dignity of the court in the eyes of all stake holders in the justice delivery system.

With Bhushan refusing to apologise in this case, the proceedings in this case remained inconclusive. In 2011, Bhushan sought a reference to the Constitution bench on whether expressions of bona fide opinion on the extent of corruption in judiciary would constitute contempt. Information about the names of eight Chief Justices of India who, according to Bhushan, were corrupt, was submitted to the bench in a sealed cover, which continues to be under wraps.

Interestingly, when the Justice Arun Mishra bench wanted to revive this case, it was confronted with the same issues raised by Bhushan in 2012. In addition, the bench framed the following issues:

i) In case a public statement as to corruption by a particular judge(s) is permissible, under what circumstances and on what basis it can be made, and safeguards, if any, to be observed in that regard?

ii) What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting judge?

iii) Whether against retired judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

Bhushan submitted that corruption is not restricted to pecuniary gratification alone, but has to be understood in a wide sense to include any act of impropriety. He has also argued that allegations of corruption cannot per se be considered as contemptuous, because truth is a defence in contempt proceedings.

On August 25, the bench observed: “There is paucity of time; otherwise, we would have heard the learned senior counsel with respect to the questions which have been proposed. However, since the matter is pending for the last 10 years, as prayed for, we fix the date for hearing in the month of September, 2020. Let the matter be listed on 10.09.2020 before an appropriate Bench as may deem fit by Hon’ble the Chief Justice of India.”

As Justice Arun Mishra retires on September 2, all pending matters before his bench have to be necessarily listed before other benches for further hearing. When counsel for Bhushan had questioned the bench’s decision to prioritise this case in the absence of physical functioning of the court due to the lockdown, Justice Arun Mishra’s move to fix an early date for the next hearing by an appropriate bench even after his retirement, is sure to raise eyebrows. As the master of the roster, the Chief Justice alone has the power to prioritise pending cases for hearing by appropriate benches. Justice Arun Mishra’s move to fix the next date of hearing of a case after his retirement—especially when counsel for Bhushan wanted it heard after the resumption of normal hearing of the court—is likely to be viewed as impropriety.

Flaws in Sentence hearing

In his written submissions before the Supreme Court, Bhushan’s counsel, Rajeev Dhavan, has underlined his grievance that the complainant in the tweets case, Mahek Maheshwari, a prominent Bharatiya Janata Party member, was successful in getting his petition heard by the Supreme Court despite his failure to secure the consent of the Attorney General for India as required by law. The Supreme Court took note of Maheshwari’s petition and exercising its administrative jurisdiction, converted it as a suo motu petition to be heard on the judicial side. However, it refused to share Maheshwari’s petition with Bhushan, despite his plea for the same.

“The implications of this are far reaching because Bhushan and the public are entitled to know whether the complaint was mala fide or even personally or politically motivated,” Dhavan submitted. Besides, by not agreeing to permit Bhushan to prove the truth of his tweets, the Supreme Court appears to have supported the view that truth does not matter, even though truth is a defence in contempt proceedings.

Dhavan pointed out that Bhushan’s record on judicial accountability and the public interest speaks for itself. Among the corruption cases which Bhushan has legally fought, the following were prominent: The case concerning the impeachment of Justice V. Ramaswamy (1991); the coal mining case (2014); Goa mining case (2018); Odisha mining case (2014); Karnataka mining case (2013); Pricewaterhouse case on remittances abroad by foreign firms (2018); 2G case (2012); challenge to foreign funding of political parties (2014); setting aside of Chief Vigilance Commissioner’s appointment on the grounds of lack of integrity (2011); setting up of a Special Investigation Team in the CBI Director case (2014); and the Lokpal case (2017).

Among the public interest causes litigated by Bhushan, the following deserve special mention: The Narmada case (2011); the Bofors case (1992); the Police Reforms case (2006); HPCL privatisation case (2003); the passive euthanasia case (2018); the misuse of government advertisements case (2015); the street vendors case; the rickshaw pullers case (2012); the Singur land acquisition case (2017); the drought management case; the gram nyayalas case (2019) and the challenge to electoral bonds case (2017), which is pending.

Dhavan emphasised in his submissions that the definition of the offence of scandalising the court is notoriously vague. It has not been defined anywhere by statute or by judgments. An undefined or ambiguously defined offence has to be handled with care, and used only in extreme cases, he told the court.

Justice Arun Mishra, when he was the Chief Justice of the Calcutta High Court, had not found the West Bengal Chief Minister Mamata Banerjee guilty of contempt of court, when she gave a speech in 2013 suggesting that judgments were delivered in exchange for money and that corruption had made inroads into the judiciary and democracy as a whole.

Bhushan, along with prominent journalists N. Ram and Arun Shourie, filed a writ petition in the Supreme Court challenging the consti-tutionality of Section 2 (c)(i) of the Contempt of Courts Act, 1971, which criminalises the offence of scandalising or lowering the authority of any court, on the ground that it is vague and incompatible with basic features of the Constitution.

On August 13, the Arun Mishra bench permitted the petition’s withdrawal as the petitioners wanted to “approach appropriate judicial forum”. The apparent reason for their request was of course to avoid its dismissal by the bench which was already in the midst of hearing two suo motu petitions against Bhushan invoking the same provision.

Freedom of expression

The Supreme Court initiated the contempt proceedings against Bhushan using its inherent powers under Article 129 read with Article 142 of the Constitution, instead of the Contempt of Courts Act, 1971. However, for a reasonable restriction on the fundamental right to freedom of expression as in the present case, reliance on a law is constitutionally imperative. The court’s action against Bhushan, therefore, makes the constitutional guarantee of freedom of expression otiose.

The Bhushan contempt case has outraged the civil society, with people from all walks of life registering their protest against the Supreme Court’s disproportionate response to his tweets. Venugopal, too, has requested the court not to punish Bhushan, but simply admonish him.

To many observers, by convicting Bhushan, the Supreme Court has diminished itself. The court’s sentence order will show whether it is able to apply the necessary correctives and restore its credibility to some extent. It was clear that the contempt proceedings against Bhushan were a result of complete misreading of his tweets by the bench, leading to erroneous assumptions and inferences. Rather than gracefully admit its failure to properly appreciate Bhushan’s tweets, the bench appeared to dismiss all his concerns, by reserving its verdict on sentencing on August 25. If the Supreme Court punishes Bhushan for these innocuous tweets, it is likely to send a chilling message to all those who wish to fully exercise their much cherished right to freedom of expression guaranteed by the Constitution. That will be a sad day in the court’s history.

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