NEW DELHI ― The Supreme Court’s verdict holding lawyer Prashant Bhushan in contempt of court 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,” she said.
Bhushan on Friday was held guilty of contempt over two tweets about Chief Justice of India S.A. Bobde and the Supreme Court.
Bhushan faces imprisonment for 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.
The tweets
In the affidavit he filed on 2 August in response to the contempt notice issued against him on 22 July, Bhushan said 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.
Bhushan said that he regretted only one part of that tweet.
“At the outset I admit that I did not notice that the bike was on a stand and therefore wearing a helmet was not required. I therefore regret that part of my tweet, he wrote.
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.”
“Such expression of opinion however outspoken, disagreeable or however unpalatable, cannot constitute contempt of court,” he wrote. “It is the essence of democracy that all institutions, including the judiciary, function for citizens and people of this country, and they have the right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution. I submit that my criticism has been outspoken yet it has been carefully weighed and made with the highest sense of responsibility.”
Twitter withheld the two tweets after the Supreme Court initiated contempt proceedings against Bhushan.
Lawyers speak
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.
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