14/08/2020 8:22 PM IST | Updated 14/08/2020 9:33 PM IST

‘One Expects Judges To Show Tolerance And Compassion’: Faizan Mustafa On Prashant Bhushan Contempt Case Order

The Supreme Court’s judgment is consistent with Indian jurisprudence but it is not consistent with the current and enlightened jurisprudence elsewhere, the constitutional expert said.

Courtesy Faizan Mustafa.
Faizan Mustafa

NEW DELHI ― After studying Friday’s Supreme Court judgment holding lawyer Prashan Bhushan in contempt of court, Dr Faizan Mustafa, Vice Chancellor of NALSAR University of Law, Hyderabad said, “The judgment is consistent with Indian jurisprudence but it is not consistent with the current and enlightened jurisprudence elsewhere.” 

Democracies around the world had either rid themselves of the law or just stopped using it. But in India, the 2018 Law Commission had recommended retaining the law, while noting that 586 contempt matters were pending in various High Courts in the country. 

Faizan cited the famous American judge Hugo Black who, in Bridges versus State of California (1941), had said that the judiciary cannot win respect by shielding judges, and silence imposed through contempt law does not enhance respect for judges. 

In 1936, Faizan recalled, Lord James Richard Atkin in Ambard v Attorney-General for Trinidad and Tobago, had said, “justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful…comments of ordinary men.”

Bhushan on Friday was held guilty of contempt over two tweets about Chief Justice of India S.A. Bobde and the Supreme Court. The well-known public interest litigation lawyer faces imprisonment for a maximum period of six months, or a fine of up to Rs 2,000, or both. Arguments for the quantum of punishment will be heard on 20 August. 

Bhushan had argued that his 29 June tweet about a photograph of Chief Justice Bobde on a Harley Davidson motorcycle did not constitute contempt of court. “If it  were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article 19(1)(a) of the Constitution,” he wrote in his affidavit. 

On the 27 June tweet, Bhushan wrote, “it has three distinct elements, each of which is my bonafide opinion about the state of affairs in the country in the past six years and the role of the Supreme Court and in particular the role of the last four CJIs.”

On the performance of the judiciary, Mustafa pointed out that other Indians, including historian Ramachandra Guha, and retired Supreme Court judge, Justice Madan Lokur, and former Chief Justice of the Delhi High Court, AP Shah,had written on similar lines. In fact, in 2018, four of the most senior Supreme Court judges had addressed a press conference expressing their concerns about the functioning of the court, stating that “democracy is in danger.” 

There can be two opinions on how the court actually worked in the last six years. One may say the court has been proceeding how it has proceeded in earlier years. There may be others who feel the court did not attach the same kind of importance to Habeas Corpus matters. It is largely a matter of opinion in a mature democracy,” he said. 

In its judgment today, Faizan said, the Supreme Court rebutted Bhushan’s allegation of sluggishness during the pandemic, citing that 12,000 matters, 800 writ petitions under Article 32 had been disposed off during this period.  The court, he said, had noted that such sentiments as expressed by Bhushan in his tweets can disrupt the functioning of the court.  

“People don’t really take tweets that seriously,” he said. “ This mode of expression is not perfect. There is a limitation in terms of letters one can use in a tweet. And no serious discussion should ideally take place on Twitter.”

“In matters like contempt, one expects large-hearted tolerance and compassion from judges, overlooking criticism of the court, upholding freedom of speech and expression rather than punishing people, especially a lawyer who has been a crusader of accountability and transparency,” he said. 

Lawyers speak

The Supreme Court’s contempt of court ruling was “bad news for free speech,” Indira Jaising, a senior Supreme Court advocate, and the first woman to be appointed Additional Solicitor General of India in 2009, told  HuffPost India

“While as feminists we know that the personal is political, but in law the personality of a judge must be split between the personal and the constitutional. This is an institutional requirement of justice,” said Jaising. “The judgment obliterated the distinction.”

Another senior Supreme Court advocate Sanjay Hegde told HuffPost India’s Akshay Deshmane that the judgment would discourage lawyers from being outspoken and this cannot lead to a strong court. 

“Prashant Bhushan joins the ranks of EMS Namboodiripad and Arundhati Roy in having been convicted by the Supreme Court on a charge of contempt. The judgment will add to textbooks on Contempt, but will leave most readers wondering whether it does anything to restore the authority of the court in the eyes of the public,” he said

In an interview with HuffPost India published in July, senior Supreme Court advocate Rajeev Dhavan had recalled at least three instances of contempt including the famous case against the former Chief Minister of Kerala EMS Namboodiripad for saying judges were class biased. 

Former Congress Party leader and External Affairs Minister P. Shiv Shankar, Dhavan said, was very nearly held in contempt. (Shankar compared Supreme Court judges to “anti-social elements, foreign exchange violators, bride burners and a whole horde of reactionaries who have found their haven in the Supreme Court”).

Retired Justice Markandey Katju, he said, was issued a contempt notice after he wrote an article saying that a first year law student would have recognised the law to be incorrect in the Soumya murder and rape case of Kerala. 

Justice Katju, he said, gave a very narrow apology to then Chief Justice of India Ranjan Gogoi. 

“From then on, the press has been at the receiving end of this. In technical terms, this is called constructive contempt because you are constructively saying something that might affect the court. The law of constructive contempt is extremely wide,” Dhavan said

Responding to when contempt is invoked, Dhavan said, “Whenever the judges feel like it. Contempt is now an open ended jurisdiction.”

“Now the contempt would not be against a sitting judge, but the court itself. It is an unreasonable restriction of free speech and Justice (V.R.) Krishna Aiyer has left us judgements to remind us that this power is not a power to play with,” he said.