When the Supreme Court pronounced lawyer Prashant Bhushan guilty of contempt of court last week, it backed its decision with a 108-page judgement. But rather than relating to any offence the lawyer may have committed, the verdict reflects the thin skin India’s judges have for criticism.
On August 14, the bench said that the lawyer had created “disaffection and disrespect for the authority” of the Supreme Court by issuing “scandalous” and “scurrilous” tweets late in June criticising chief justices in recent years for failing to check the excesses of the executive. Bhushan has not been alone reaching this conclusion: many scholars and writers have noted a disturbing trend of the Supreme Court failing to hold the Centre to account in crucial matters that involve basic rights.
Bhushan’s conviction is a shocking display of intolerance of free speech by India’s highest court. Besides, the manner in which the process was conducted has dealt more damage to the image of the court than the lawyer’s tweets could ever do. The court seems to want to make an example of Bhushan. Not only was a fresh case registered, an old case against him from 2009 was dug out.
In countries like the England, contempt of court through scandal is no longer an offence. Not only has India’s Supreme Court upheld this vague concept, it actually wants to expand the provision that has come to be seen as anti-democratic in some countries. In the 2009 case against Bhushan that has been resurrected, the court wants to see if allegations of corruption against retired judges can be construed to constitute contempt.
This runs against a trend witnessed since the 1980s, when the court itself had tempered down the contempt law.
As it turns out, it was four Supreme Court judges who opened the floodgates to criticising the institution when they addressed an unprecedented press conferencein January, 2018. Unless the Supreme Court “is preserved and it maintains its equanimity, democracy will not survive in this country, or any country”, one judge warned. Even though the four judges were openly criticising the actions of Dipak Misra, who was chief justice at the time, they were not accused of being in contempt. But when an individual expressed concern about the manner the court is being perceived to be functioning, the Supreme Court wants to send him to jail.
What we are witnessing in the Bhushan case is the effect of the gradual concentration of power in the office of the chief justice as the “master of the roster” with the authority to assign cases to judicial benches. The bench that convicted Bhushan laboured to point out that though Bhushan made made a comment about Chief Justice SA Bobde in one of this tweets, it was not Bobde who decided to take up the contempt plea and allocate it to the concerned bench. This was done by Justice Ramana, the second-most senior judge.
Of course, the chief justice could simply have chosen to disregard Bhushan’s tweets, which did not have any real effect on the manner in which justice is delivered in India.
Instead, the court itself has conflated the institution of the Supreme Court with the identity of an individual judge. This is the same strategy that former Chief Justice Ranjan Gogoi effected last April when he called for an emergency hearing over complaint of sexual harassment against him and sat in his own cause to undermine the character of the woman who had made the complaint.
The Supreme Court’s decision has triggered an outpouring of criticism from lawyers, activists and even former judges of the court. If at all there was a time for the court to show it indeed has broad shoulders, it is now.
