“Freedom of speech is a principal pillar of a free government: When this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins.”
~ Benjamin Franklin
The author puts down this article over an ongoing controversy of Prashant Bhushan’s contempt case in the Supreme Court. He examines both the tweets in a legal means and underscores the heedlessness on the part of the Supreme Court. He argues that the court being offended by his truly opinionative view did not purely consider his response to the allegation against him, and delivered an unjustifiable verdict. Therefore, this verdict brings insolence to Bhushan’s very human right to express against the wrong.
On 14th August 2020, the Supreme Court (‘the Court’) of India found Senior Advocate Prashant Bhushan (‘Bhushan’) guilty of contempt of court for his two mere tweets against the Chief Justice of India S.A. Bobde (‘CJI’) and itself. However, the said decision is being criticised by a plethora of distinctive professionals, Human Rights Organisations, and even Bar Human Rights Committee of England and Wales (BHRC) on the line of dismay – two one’s outlook based tweets cannot be treated as scandalous bits and pieces, and holding Bhushan for it does bring insolence to one’s human right to express against the wrong. Put down argumentatively, Justice Hugo Black in Bridges v. California, in principle, observed: “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion.” This observation does carry within itself a relatively considerable argument which sides with Bhushan in the very present circumstance as it, in essence, imparts the need to stop covering for judges who somewhere not stood up against the undemocratic happenings judiciously; though, this is what they pledged for. To objectify the aforesaid argument, the author intends to analyse the current bewildering controversy, from the tweet to the Court’s rejoinder on it, and then alongside underscores the oversight on the part of the Court.
CJI WITHOUT MASK: First Tweet
The first tweet for which Bhushan was superficially endorsed: “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!.” The aforesaid tweet was only partly examined – the Court did not discern the tweet in an all- inclusive or contextual manner – ignoring the first bit of the tweet and stressing only upon the second one, whilst considering its degree of contempt in its judgment; as a consequential upshot, the Court observed it as contemptuous material for expressing condemnation. Nevertheless, the argumentative qualm is: how did the Court even consider its essence as the basis for taking suo- moto cognisance given that cognisance was taken of both the tweets. Bhushan, in this one, merely exhibited his “anguish at the non-physical functioning of the Supreme Court” owing to the pandemic circumstance which as a consequence had mitigated the prompt functioning of the Court – sluggish bestowal of justice upon the fundamentally wronged persons. However, on the other side, CJI appears on an upmarket motorcycle, belonging to a politician, “in a public place with several people around him without a mask.” The concentrate of Bhushan’s tweet rested upon his context of the tweet, which was, so apparently, overlooked.
As per the judgment of the Constitution Bench in Brahma Prakash Sharma, what court should accentuate upon is “whether the reflection on the conduct or character of a judge is within the limits of fair and reasonable criticism and whether it is mere libel or defamation of the Judge”. In this case, however, it purely seems, through the act of CJI – not wearing the mask, that criticism is what it needed. On the one hand, the populace is being fined for not having on masks and the other; the Court found merely criticism for CJI as contempt for the same. In fact, another judgment in Baradakanta Mishra imparts a plausible thrust siding with the author’s argument – “the question which the court has to ask is whether the vilification is of the judge as a judge or it is the vilification of the judge as an individual.” Moreover, if anything said lies within the ambit of the latter, then only private remedies can be of assistance to – who was denigrated. On the contrary, the Court put the current case under former’s column; the author argues that the basis of the criticism done by Bhushan from tip to toe got dispensed with, seeing that his statements only drew a topically rational comparison between the doings of CJI – whilst acting as a judge and as an individual (as also contended in his reply affidavit), and factually, nothing Bhushan tweeted was amiss. A situation where the justice-imparting bodies were shut by virtue of coronavirus pandemic, CJI rode a bike to the Court and that too without any precautious instruments (mask or any other) – the essence of the rationale for putting all the courts including the Court on lockdown. Now if a man is being found guilty of contempt for truly articulating his opinionative expression on an appalling issue of the country then what good living in a democratic one like India furnishes the unfeigned democrats with?
“DESTRUCTION OF DEMOCRACY”: Second Tweet
The second tweet which, as per the Supreme Court’s comprehension, “damage[s] confidence in our judicial system and demoralise [s] Judges of the highest Court by making malicious attacks”, was: “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.” Bhushan, in this one, stressed upon – what he believes as realism (perhaps quarrelling) – the role of four preceding judges played a destructive role in maintaining democracy, but the unheeded dynamic was not to probe the parallelism of the tweet to its based-on-fact verity. Simply put, the court did not turn to look at the tweet’s legitimacy plausibly though the same has been aired plenty of times prior to Bhushan’s exclamation. The allegations made against the Court from topical years were copious in count as well as solemn in nature; preceding chief justices have been in a controversial and confrontational environment, but zilch came into action against the doers including their colleagues perhaps because they were of an elevated and dominant position. In D.C. Saxena, the Court noted that denigration of the institution is sanctioned “even if it slightly oversteps its limits”. However, by seeing the present scenario, the judgment seems to be smeared only to prevailing posts like judges or ministers but not to an ordinary one which Bhushan corresponds to.
This decision of the Court not only plonk a question mark on its certitude’s justifiableness but also mitigates the citizens’ reliance upon it, and compels them to think over – will they be able to exercise their most imperative human right to speak out their opinion without fearing from going through a contempt case like of Bhushan’s. After all, people’s bitterly true criticism is what brings forth a reform in society as well as crafts those aware who need to be so.
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