“Justice is not a cloistered virtue,” declared Lord James Atkin as a judge of the United Kingdom Privy Council. “She must be allowed to suffer the scrutiny and respectful even through outspoken comments of ordinary men.”
These words were used in Ambard v. Attorney-General for Trinidad and Tobago in 1936 while holding that a critical publication, alleged to be contemptuous for bringing the administration of law into disfavour with the public, did not amount to contempt of court.
Contempt, according to the Indian Contempt of Courts Act, 1971, may be civil or criminal. Civil contempt is wilfully disobeying an order or an undertaking given to a court. Criminal contempt could flow from an action or publication that scandalises or lowers the authority of any court, obstructs the administration of justice or interferes with the course of judicial proceedings.
Lord Atkin’s observation was approvingly quoted by the Supreme Court of India in 1988 in the context of criticism and criminal contempt. Yet, it was ignored last week when the Supreme Court celebrated its independence a day before the rest of the country by cloistering itself from criticism through recourse to suo moto (on its own accord) proceedings for criminal contempt.
The tweets and the verdict
On July 22, a three-judge bench of the Supreme Court issued a call to arms and declared that two Tweets by noted advocate and activist Prashant Bhushan were prima facie contemptuous. On August 14, the bench held Bhushan guilty of making “scandalous” and “scurrilous” comments against the institution of the Supreme Court.
The Prashant Bhushan judgement reaffirms the settled position of law, that “the right to offer healthy and constructive criticism, which is fair in spirit must be left unimpaired in the interest of the institution itself”.
However, the court categorically held that Bhushan’s statements did not amount to fair criticism of judicial functioning. Despite the Supreme Court being admittedly closed for routine physical hearings, and an incomparable number of cases being taken up through video conferencing, the bench held that Bhushan’s first tweet was “patently false” and had “the tendency to shake the confidence of the public at large in the institution of judiciary”.
The second tweet was perceived even more adversely. Although it is expressed purely as an opinion within the realm of criticism, the judges described Bhushan’s statement as an attack tending to “create disaffection and disrespect for the authority” of the Supreme Court. The court further observed that “an attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand” and that the tweet destabilised the very foundation of the judiciary.
UK Brexit verdict
Let us rewind a little to a different time and place – but in context of similar criticism of the judiciary for supposedly anti-democratic conduct. On November 3, 2016, the England and Wales High Court ruled that triggering of the United Kingdom’s exit from the European Union would require parliamentary approval, a view subsequently upheld by the UK Supreme Court.
A mere decision by the government to act upon the referendum was held to be insufficient by the High Court.
This resulted in scathing criticism of the verdict, the role of the judiciary and against the judges personally.
The day after the High Court pronouncement, the Daily Mail’s front page labelled the three justices of the England and Wales High Court in large type as “Enemies of the People”, describing them as “out of touch judges”. This was followed by a comment from a former minister that there was an “unholy alliance” of judges and embittered backers of the movement for the UK to remain in the European Union.
The Daily Telegraph carried a similar headline: “The judges versus the people”. It declared that the “judges are out of their boxes these days and need to be put back in” and that they were “politicians without accountability”.
The day the High Court delivered its verdict was dubbed by the Daily Express as “the day democracy died”, creating “a crisis as grave as anything since the dark days when Churchill vowed we would fight them on the beaches”. Photographs of the judges, describing them as “Europhiles” and accusing the judiciary of blatant interference were recurring themes across newspapers, including the Sun.
In India, Bhushan’s statements pale in comparison to such criticism. What is also markedly different is the manner in which judicial criticism is dealt with. The Indian Supreme Court retorted by slapping suo moto criminal charges for scandalising the judiciary. To support its findings, it cited a vintage English decision from 1765 in Rex v. Almon.
Ironically, in England, contempt of court was scrapped as an offence in 2013 on the recommendations of the Law Commission. The Law Commission of England and Wales noted that the offence was “in principle an infringement of freedom of expression”, there were uncertainties about its conditions, prosecutions were likely to have undesirable effects including “re-publicising the allegations” and that it was “no longer in keeping with current social attitudes”. The arguments in Rex v. Almon were deemed “unlikely to have much appeal today”.
The Law Commission also noted that the offence had become obsolete since there had been only a handful of prosecutions for contempt on the grounds of scandalising the judiciary since 1899. No successful prosecution had taken place after 1931.
In the wake of the England and Wales High Court judges being targeted in 2016, the judiciary did not even issue a statement of condemnation. It was only the Lord Chancellor (a Cabinet minister responsible for overseeing efficient functioning of courts) who meekly denounced the reportage. Such is the sharp divide in approaching judicial criticism across two common law legal systems.
The Bhushan verdict and the top court coming to the rescue of the incumbent and former Chief Justices of India and the institution of the Supreme Court betrays dubious double standards. It is meaningless to lay down lofty principles such as declaring that “a publication which attacks on individual judges or the court as a whole … casting unwarranted and defamatory aspersions upon the character or ability of the judges” amounts to scandalising the court and creating distrust and impairing public confidence. The same court was a silent spectator to incessant mudslinging a couple of months ago against Justice Madan B Lokur, one of its own retired judges and a member of the collegium, which comprises five of the senior most judges of the Supreme Court.
Justice Lokur, an eminent jurist presently holding a judgeship of the Supreme Court of Fiji after his retirement, was vocal in his criticism of the Indian Supreme Court’s apathy towards migrant workers who found themselves without wages and food in the wake of the lockdown imposed in March to stop the spread of the coronavirus. In response, the Bar Council of India through its chairman Manan Kumar Mishra, issued a press release condemning Justice Lokur and others in language that was particularly denigrating: they were described as “misguided”, “purported intellectuals”, people who were settling their “political agenda by training their guns against the judiciary”.
Crossing all bounds of propriety, it was even alleged that these former judges “… who could not get a suitable berth after their superannuation, become disgruntled and start going in media and malign the system of which they were integral part …” If Bhushan’s words were contemptuous, surely such an unjustified attack and imputing of such motives by a member of the Bar against a former Supreme Court functionary is equally scandalous and impairs public confidence in the judiciary?
More questions than answers
The integrity of an institution is determined by the criticism it can withstand. The Supreme Court’s contempt verdict in the Bhushan case raises more questions than it answers regarding the bounds between fair criticism and scandalous publication, the chilling effect on freedom of expression, the need to prosecute for an obsolete offence and about the Supreme Court’s own previous conduct. By holding Bhushan guilty of criminal contempt, the Supreme Court has shown great discourtesy towards a member of the Bar. To quote MC Chagla, the first Chief Justice of the Bombay High Court in independent India, “discourtesy to the Bar is essentially evidence of weakness in the judge”.
In Greek mythology, Themis is the goddess of justice – the personification of fairness and law. Her symbols are the scales of justice to retain pragmatism and balance, and a sword to separate fact from fiction. Themis shares a temple at Rhamnous with Nemesis – the wrathful goddess of retribution. When Themis is disregarded, Nemesis brings just retribution.
By evoking the wrath of Nemesis against Bhushan, the cherished ideals of Themis have been completely bypassed, the retribution imposed is far from just and the hubris is entirely that of the Supreme Court itself.
Rohan Deshpande is a practicing advocate based in Mumbai. His Twitter handle is @RohanDesh13.