As the Supreme Court was hearing arguments on Thursday about sentencing lawyer Prashant Bhushan for contempt of court, Justice Arun Mishra, the judge leading the bench, noted that the court’s contempt powers were wide and had to be used sparingly.

The court needs the power of contempt, some have argued, to ensure its orders are implemented. Criminal contempt, the offence for which the lawyer had been convicted on August 14, flows from an action that scandalises or lowers the authority of a court, obstructs the administration of justice or interferes with judicial proceedings. In Bhushan’s case, the court said its authority had been undermined by two tweets the lawyer had issued in late June about the recent performance of the judiciary and Chief Justice SA Bobde.

In a sense, contempt is a part of the doctrine of constitutionalism, which maintains that a government’s authority is “determined by a body of laws or a constitution that checks the arbitrary use of power”.

While the idea of constitutionalism is primarily invoked to keep the state on a leash through a range of checks and balances, it applies to any institution that has the power to curtail the rights of citizens. The balance is achieved by following the spirit of the procedures established by law, without which any action, especially criminal proceedings, has the danger of turning into an arbitrary exercise of power.

Though the Supreme Court is not entirely bound by the procedures set in the Contempt of Court Act given that its contempt powers emanate from Article 129 of the Constitution and it has ruled in the past that it retains an amount of discretion, the court generally follows the legislation to ensure that it does not seem high handed.

One of the important provisions in the contempt law is the role it gives the attorney general of India. The Act requires the attorney general’s approval before anyone can ask the court to invoke proceedings for criminal contempt. One of the reasons the proceedings in the Bhushan case seem arbitrary is because the role of the attorney general has been undermined.

First, though a petition was moved by a lawyer asking the court to initiate contempt proceedings against Bhushan for his tweets, the Supreme Court chose to initiate a case on its own and not base it on the petition. Because of this, the court argued, the approval of Attorney General KK Venugopal, one of India’s most senior lawyers, was not necessary.

Despite this, the Supreme Court did issue notice to Venugopal seeking his assistance in the case and he had been participating in the hearings. However, the court decided not to hear the attorney general and went ahead with the conviction last week.

It is important to remember that the attorney general is a constitutional authority. Not only does the attorney general have the right to address Parliament, under Article 76(3) of the Constitution, he is vested with the right of audience in all courts in India. This right of audience does not mean the right to be merely present but to provide his view in assistance of the court.

On Thursday, when the bench assembled to decide what quantum of punishment it should award to Bhushan, Venugopal attempted to make a submission. He pointed out to the bench that at least five Supreme Court judges had previously said what Bhushan had also referred to in the tweets – that “democracy had failed in the Supreme Court.” Venugopal added that some retired judges have also said that there was corruption in the judiciary.

“If five judges of this court have held that democracy has failed...” Venugopal started to say, before abruptly being cut short by Justice Mishra, who said the bench was not inclined to hear him on merits. The attorney general also asked the court not to punish Bhushan, referring to the lawyer’s stellar record in the fight for human rights.

This exchange was not mere courtroom drama. When the attorney general was cut short, the idea that some procedures have been put in place to check power in a democracy – the very core of constitutionalism – was shaken. It is not clear why the court decided to seek his assistance if it chose not hear him. The official written order of the court did not even record what the attorney general said during the Thursday hearing.

It is also true that Venugopal failed to insist on his right to speak. But his opinion that Bhushan’s comments were not unique and that even Supreme Court judges have said similar things struck at the heart of the contempt proceedings. If those judges were not in contempt of court for stating that democracy had failed in the Supreme Court, why is Bhushan?

The Supreme Court had shown great alacrity in completing the contempt case, taking just 24 days to finish the hearing when many other important matters of public importance have been pending before the court for years.

The Bhushan case has resulted in further damage to the court’s image. The only way to repair it would be to show magnanimity and end the proceedings.