Former Union minister, journalist and author Arun Shourie on Thursday said advocate Prashant Bhushan, who has been held guilty of contempt of court, must get the opportunity to prove his assertions, The Indian Express reported.
Shourie’s interview with the newspaper was published a day after the three-judge virtual bench led by Justice Arun Mishra wrapped up oral arguments on Bhushan’s punishment. The court gave Bhushan two-three days to reconsider his statements. The advocate, however, said he was pained by the judgement against him and that he had been “grossly misunderstood” by the court and was only discharging his duty by criticising the judiciary.
The case pertains to two tweets of Bhushan’s from June 27 and June 29. The first tweet commented about an undeclared emergency and the role of Supreme Court and last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying a Harley Davidson superbike in his hometown Nagpur during the coronavirus outbreak.
Shourie said the Supreme Court judgement brought out not how Bhushan views “this central pillar” of democracy, but the view of the judges. “…that this central pillar is now so hollowed out, that it is so fragile that a mere puff of two tweets can put it in jeopardy,” he added. The former minister said the day is not far when the Supreme Court will soon come down on all comments and scrutiny of the judiciary.
Shourie, along with Bhushan and journalist N Ram, had filed a separate petition before the Supreme Court challenging the constitutional validity of the Contempt of Courts Act, 1972 earlier this month. They later withdrew the petition and said they wanted the liberty to raise the matter again “maybe after two months or so”.
When asked if people’s faith in the judicial system was eroded by such comments, Shourie said the court must look in the mirror. “Has it been aiding and abetting the assault on democracy, its institutions and values or not,” he asked. “If it has, then the critic is a friend of the court, he is alerting it to the wrong it is doing. If it has not, then he can go on ranting as he will, he is the one who will lose credibility, the people will stop believing him. They will go not by two tweets but by the record of judgements and the conduct of the judges.”
Shourie added that truth is now a defence. “So, when the court is offended by the comment of someone, it must, it is by law bound to give him the opportunity to prove his assertion...”
Shourie said what lowers the dignity of the judicial system is not a tweet, but the facts and the procedure of dealing. “Rectify these shortcomings rather than venting your anger at tweets,” he added.
The former Union minister also clarified that “corruption” does not always involve money. “An academic or a journalist may not be accepting money and yet be intellectually corrupt in that he habitually plagiarises from the work of others,” he said. “A person, say a judge or a political leader, may be thoroughly honest in monetary terms, but thoroughly corrupt morally: he may be proclaiming high principles in grandiloquent prose from the pulpit — about fundamental rights, say, or bringing those who violate these to book, or helping the poor — and yet when the time comes to put them into practice, may not do so.”
In a veiled attack on former Chief Justice of India Ranjan Gogoi, Shourie said corruption could be in any form of favour. “Consider an example concerning judges,” he said. “Who is the biggest litigant in the country? The government. And so, when after retirement a judge accepts a handout from that litigant – say, the Chairmanship of the Human Rights Commission or the Press Council, or agrees to being nominated as a member of the Rajya Sabha – that is certainly accepting a favour from the litigant who has been before you more than any other litigant.”
He added: “And when this happens after a string of judgements which, let us say by sheer coincidence, are so very convenient for the government of the day, you can’t blame the people for putting ‘2’ and ‘2’ together and inferring ‘22’. This is corruption, and it, not some tweet about it or interview about it, is what undermines the esteem in which courts and judges are held.”
Shourie added that when someone pointed to such things, they are being a friend of the court and alerting judges to a real danger. He said what should decide contempt is that if the “person is doing or saying something that actually interferes with the course of justice”. “This business of ‘scandalising’ the court is just too vague, and too out-of-date.”
Shourie said he disagreed that there should be a difference between the private and public life of anyone holding a public office. “First, someone who, let us say, lies to his wife in private cannot be trusted to be honest in the discharge of his official functions,” he said. “Second, in this day and age, what those holding high office do in private will be out in public view. And that will set an example for others – they are a house set on a hill. And, third, that is what will determine what the people will believe about the institution.”
Asked about his suggestions to the judges, Shourie said he would ask them to be “a little more confident about your reputations and that of the institution”. “Second, remember that the esteem in which you and your institution is held will be determined by your judgements and your conduct, not by some tweet. Third, look upon criticism as caution, on the critic as your friend…In a word, before taking umbrage at something that has been said, before hauling someone up, always look into a mirror. I will repeat what I said at the time we filed the petition on Rafale: we are not on trial, the court is.”
He also asked people to scrutinise in the minutest detail, both the judgements and the judges. “That is the only way to ensure accountability of the judicial system – not the defunct and paralytic impeachment procedure,” he added. “And ensuring accountability, keeping judges alert to what they are decreeing and doing is the one way, it is the only way to keep that ‘central pillar of democracy’ strong.
Shourie came down heavily on the “priorities of our judicial system”. He said the court had not taken up many vital matters while it took sou moto notice of “trivial issues”.