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A deeper analysis into the case against public interest lawyer, Prashant Bhushan

A judicial system is corrupt if truth is denied the right to be a witness.
                                                      Suzy Kassem

The Prashant Bhushan Contempt story starts back in 2009 when Mr. Bhushan gave an interview for Tehelka Magazine. In said interview, he made allegations of corruption within the judiciary. Senior advocate Harish Salve filed a case against Bhushan and also the editor of Tehelka, Tarun Tejpal, on charges of criminal contempt of court. Criminal contempt includes any act or publication which:

(i) ‘scandalises’ the court,

(ii) prejudices any judicial proceeding

(iii) interferes with the administration of justice in any other manner.

Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary.

In the interview, Bhushan had claimed that half of the 16 Chief Justices of the Supreme Court were corrupt. In 2010, a three-judge bench issued notices to both Bhushan and Tejpal but the case only went to hearing earlier this year, when the Supreme Court brought a new contempt case against Prashant Bhushan.

On June 27, Prashant Bhushan tweeted the following:

“When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs”

On June 29, 2 days after the first tweet, he also tweeted a photo of CJI Bobde sitting on a bike with the following remark:

“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

The tweets sparked a flurry of controversy across social media and Indian news channels. The Supreme Court served a notice to Bhushan on July 22 after initiating charges of criminal contempt against him. Numerous senior advocates, civil servants and respected members of the Indian legal profession came out in support of Prashant Bhushan.

Bhushan later said that he simply wished to point out how a Chief Justice who had advocated for the courts to be shut down due to the pandemic was now flouting basic precautions and riding motorcycles while thousands of cases lay unheard. Bhushan said he was “in anguish” over this.

The argument was repeatedly made that Prashant Bhushan had simply exercised his right to criticize the judiciary and government, which is a cornerstone of democracy. Bhushan also used the speeches of multiple former and sitting judges in his defense, saying that the stifling of dissent is a huge problem in the country. One such speech he cited has of sitting judge, Justice Deepak Gupta, from 24th February 2020, in which the Justice said that there is a great need for an impartial decision-making process in the judiciary.

Bhushan later released an affidavit in which he said he regretted the remark about CJI Bobde not wearing a helmet, and that he had failed to notice that the bike was stationary.

“The tweet regarding the CJI riding a motorcycle dated 29.06.2020 was made primarily to underline my anguish at the non-physical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal,” said Bhushan in the same affidavit.

“My expressing anguish by highlighting this incongruity and the attendant facts cannot be said to constitute contempt of court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article l9(1Xa) of the Constitution”

On 31 August 2020, the Court released its judgement in a 82 page document with details of the case proceedings, the arguments made by both sides, and the Courts rationale behind the sentencing.

The following are excerpts from the documents:

“He has attempted to denigrate the reputation of the institution of administration of justice of which he himself is a part. At the cost of repetition, we have to state that the faith of the citizens of the country in the institution of justice is the foundation for rule of law which is an essential factor in the democratic set up.”

“The Court, from the very beginning, was desirous of giving quietus to this matter. Directly or indirectly, the contemnor was persuaded to end this matter by tendering an apology and save the grace of the institution as well as the individual, who is an officer of the Court. However, for the reasons best known to him he has neither shown regret in spite of our persuasion or the advice of the learned Attorney General. Thus, we have to consider imposing an appropriate sentence upon him”

“In the present matter also not on one occasion but on several occasions, we not only gave opportunity but also directly or indirectly persuaded the contemnor to express regret. Not only that the learned Attorney General had also suggested that it was in the fitness of things that a contemnor expresses regret and withdraws the allegation made in the affidavit in reply, which request was not heeded to by the contemnor. The contemnor not only gave wide publicity to the second statement submitted before this Court on 24.08.2020 prior to the same being tendered to the Court, but also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of this Court. If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Rs.1/­ (Rupee one).”

In summary, the Court expressed its disappointment that Bhushan refused to apologize and express regret and also widely publicized the second tweet about CJI Bobde through interviews in the media. The court eventually decided to be magnanimous and impose an insignificant fine of Rs. 1

Hours after the judgment was announced, Bhushan attended a press conference in which he said he is happy to pay the fine but will definitely challenge the verdict. He added that he meant no disrespect to the Supreme Court and only wanted to “express his anguish at what he felt was a deviation from the courts sterling record.”

He paid the fine on the same day because he was “not itching to go to jail.”








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