The Judge as the Man of Blood and Iron (With apologies to Otto von Bismarck)

As l’affaire Prashant Bhushan plumbs the depths of ignominy, the inevitable question is this: Where do the citizens of this country go from here and how does the legal profession propose to deal with the salvo fired by the Supreme Court on 14^th August 2020, holding Bhushan guilty of criminal contempt for his two tweets of 27^th and 29^th June 2020?

An attempt at legal analysis of Prashant Bhushan is futile, for the simple reason that, as noted by Gautam Bhatia, the 108-page judgment is devoid of “reasoning”. However, it is important to remember how the judgment came to be delivered, and to consider what the judgment holds and what its implications are. For, let there be no mistake, the matter was initiated, conducted and decided with one aim and object—to make an example of Bhushan so as to send out a clear message to the legal profession. If the reports of the hearing on 20^th August, 2020, on sentencing are to be believed, Justice Mishra has openly stated that the question is one of “deterrence.”

Answering the question I have posed requires going back to 2009, when Bhushan, in an interview with Tehelka, denounced eight out of the past sixteen Chief Justices of India (at the time) as having been corrupt, which led to a criminal contempt petition being filed against him. The petition was admitted and notice issued to Bhushan. There the matter lay, last having come up in 2012. Perhaps the Court was chary of taking it up, considering that the cancer of corruption in the higher judiciary was not something that the Court wanted to confront. Perhaps the affidavit filed by Shanti Bhushan—enclosing in a sealed cover the names of the eight CJIs that he said were corrupt, the six that he said were definitely not corrupt, and the two that he said he wasn’t sure about—was also a deterrent. Whatever the reason, for eight years the Court thought nothing of letting the matter lie, suffering no loss of “dignity” “majesty” or “authority”.

Apart from the interview with Tehelka, for several years Bhushan has been in the forefront of the fight against corruption in the higher judiciary and an advocate for transparency in it’s functioning. He has consistently campaigned against the opacity, arbitrariness and caprice that is pervasive in the system. So when Bhushan’s tweets were published, it was seen as a golden opportunity to make an example of him. Not only of him, but to send a message to others in the profession who dare to stand up to judges, and expose or criticize their misdeeds, and their manner of functioning.

Before we arrive at an answer to the question I’ve posed, two more aspects need to be noted.

First, not being satisfied with hearing the suo motu contempt, the bench revived the eleven-year-old criminal contempt proceedings, placing it before itself.

Secondly, both matters were taken up with the utmost speed, as if nothing else on the legal horizon was of greater urgency and moment.

This alacrity in hearing the two contempt petitions is noteworthy, for it was at a time when the Court was not functioning normally nor at full strength, but in a severely curtailed manner. Only matters of great urgency, which could brook no delay were being listed for hearing by video conferencing. Be it noted, that in an unprecedented abdication of its role as a Constitutional court, habeas corpus matters languished unheard for months if not a year; the electoral bonds matter remained where it was—confined to the netherworld; a challenge to the deprivation of internet in J&K, was not decided. It was sent back to the very Government which had taken the decision that was being challenged—to take a decision on its own decision. Surely an appeal from Caesar to Caesar, if ever there was one. Even the plight of the millions of starving migrants during the lockdown did not initially elicit a response from the Court, as the matter was not considered to be of such urgency as to warrant the immediate attention of a court hard pressed for time.

The rest is history, culminating in the travesty of Prashant Bhushan.

How a non-maintainable and incomprehensible contempt petition was illegally filed, promptly entertained by the registry, promptly placed before Justice Mishra on the administrative side, promptly converted into a sou motu contempt petition by him, and promptly taken up for hearing by a bench headed by himself, is now too well-known to be laboured. So too is the animus Justice Mishra bears against Bhushan, an aspect of the matter elaborately set out in his letter of protest to the CJI dated 25^th July 2020. The letter stated in no uncertain terms that he had a reasonable apprehension that he would be denied a fair and impartial hearing by a bench headed by Justice Mishra. He sought the intervention of the CJI to place the matter before another bench, which did not contain Justice Mishra. Of course nothing was done in the matter by the CJI, and so the suo motu contempt was heard and disposed of by the bench headed by Justice Mishra.

Having followed the matter and written about it in the recent past, I had no doubt what the result would be—guilty as condemned—the Court being the prosecutor, judge and executioner. And so it came to pass.

In response to the show-cause notice for criminal contempt in the suo motu petition, Bhushan had filed a detailed affidavit explaining his position and justifying the two tweets as an expression of opinion as regards the conduct of the present CJI and his views on the role of past four CJIs in the destruction of democracy in India. He asserted his right to freedom of speech guaranteed under Article 19 (1) (a) of the Constitution. He also raised the issue that the CJI cannot be equated with the Supreme Court. One would have expected that the least the bench would do, before holding him guilty of contempt, would be to effectively deal with that affidavit. It comes as no surprise to me that the judgment is singularly silent on the affidavit. There is no discussion of the affidavit, let alone any cogent reason as to why it should be rejected. Significantly it was completely ignored, for it was obviously inconvenient for the bench to deal with it.

As regards the tweet about the CJI on a motorcycle, “… at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access Justice”, Prashant Bhushan holds this to be “patently false”. The judgment holds:

“In this premise, making such wild allegation thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous. It has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice.”

This finding is sought to be bolstered with statistics, which are misleading, for they don’t compare the period in question with the number of cases the Court would have handled during the same period when functioning normally and at full strength. The fact is that the SC was in lockdown, as was the whole of India; access to justice was severely curtailed. Bhushan was in substance correct, though his language may have been somewhat inaccurate. There was therefore nothing that could remotely be said to be “undoubtedly false, malicious and scandalous” let alone being a “wild allegation” by Bhushan.

As regards the comment on the past four CJIs the judgment holds:

“There cannot be any manner of doubt, that the said tweet is directed against the Supreme Court, tending to give an impression, that the Supreme Court has a particular role in the destruction of democracy in the last six years and the last four CJIs had a more particular role in the same. It is clear, that the criticism is against the entire Supreme Court and the last four CJIs. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it.”

This finding, unsupported as it is by any reasoning, has to be judged in the light of the affidavit filed by Bhushan—an affidavit that the bench deliberately avoided dealing with, for the bench would have been hard pressed to counter the truth of what was contained in it. No doubt had the bench grappled with the contents of that affidavit, it wouldn’t have been able to do what it always wanted to—find Bhushan guilty of contempt. Once again, if reports of the hearing on 20^th August, 2020, are to be believed, the Court suggested that portions of the affidavit were not relied on when, in fact, they were relied on but not read out so as to save the Court more embarrassment. However, it needs to be noted that in his affidavit, Bhushan had dealt in great detail with the conduct of the Supreme Court, and that of each of the past four CJIs, to justify his opinion. A great deal of what is stated in the affidavit sets out indisputable facts, as borne out by the record. For example, the notorious conduct of CJI Gogoi in the matter of the allegations of sexual misconduct leveled against him, and the mockery of justice on that deplorable occasion when the Court convened on a Saturday and he sat in judgment over himself, are a matter of record. So too is the fact that though he sat on the bench, made inappropriate comments against his accuser and was a party to the proceedings, he deliberately kept his name out of the order passed. The conduct of CJI Dipak Misra, which is also elaborately dealt with in the affidavit, was thoroughly exposed on that memorable 12^th of January 2018, when four judges effectively denounced him for the damage he was doing to the institution, and to the cause of an independent judiciary. His gross abuse of power as master of the roster by allocating sensitive matters to preferred judges and benches, was amongst the things denounced at the press conference on 12^th January 2018. Not only was the affidavit deliberately ignored, but so too were the elaborate arguments of Bhushan’s advocate, Dushyant Dave.

The judgment in Prashant Bhushan is nothing short of a frontal attack on the fundamental right of free speech exercised against the higher judiciary, and in particular the Supreme Court. Despite protestations to the contrary, the message sent out loud and clear is: we will not tolerate any criticism or censure. And to ensure that result, the threat of contempt is employed, as a warning to those who dare to speak out against the Court and its judges. In particular, it is intended to browbeat members of the legal profession into silence. It is calculated to have a chilling effect on the one section of civil society that is familiar with the workings of the judiciary and the conduct of judges both in and out of court.

In a sense, Prashant Bhushan is the culmination of the recently voiced intolerance by individual judges against comment and criticism in the media, especially social media, that was perceived by them as being unfair or unjustified. No doubt, the chilling effect intended by Prashant Bhushan is the solution to the problem voiced by these judges. Even before he assumed office as CJI, Justice Bobde had in a statement reported by PTI stated: “That it might affect the performance of courts and I see judges who feel harassed. To that extent it bothers me. Nobody likes it. Everybody is not thick-skinned enough to ignore. Judges are also normal human beings.” As reported in OutlookIndia, in his interview with PTI as CJI designate, Justice Bobde claimed that unrestricted criticism on social media platforms was not only scandalous, but was “tearing apart” the judges reputation. He said the judicial system cannot do anything in regard to “this kind of media as of now,” and that they did not know the measures required to deal with the matter. And in an online lecture delivered in May 2020 - in the backdrop of widespread criticism of the Court from the legal community in respect of its handling of the migrant crisis- Justice Sanjay Kishan Kaul said there was a growing intolerance against the judiciary fuelled by the social media. He said imputations were being made against judges for their decisions, and warned that damage was done to the judicial institution if the tendency to criticize crossed certain lines. In Prashant Bhushan, the Court, and its “harassed judges” have found a fitting riposte to silence its critics.

The message in Prashant Bhushan is: you dare not criticize the Supreme Court, however justified it may be, on pain of being found guilty of contempt. This is the frontal attack on free speech, the assault on an independent Bar attempting to prevent it from fearlessly speaking out against wrong doing in the judiciary.

As I read and reread this judgment with growing amazement, another aspect of the matter intruded itself upon me, namely the intemperate language used against Bhushan, and the inappropriate choice of words used in the judgment. The judgment states: “An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand.” This language, surely, is more suited to the strong man or dictator “ruling with an iron hand”, rather than to judges administering justice in a “constitutional democracy”.

How are the citizens of this country to deal with a judiciary capable of such a judgment? Should citizens be expected to reconcile themselves to such a judgment thereby accepting that in future we have an intolerant and overbearing judiciary, that holds itself immune from scrutiny, comment and criticism? A judiciary that tramples on cherished fundamental rights recognized as such in the Constitution, in the garb of “dignity” “majesty” and “authority of the administration of justice”. When the shameful judgment in ADM Jabalpur was delivered, due to the emergency, civil society could not adequately protest and voice dissent. Nothing stops civil society from doing so today. If, as I believe, we have a vibrant civil society, it should send out the strongest message possible to the Supreme Court that it will not be cowed by this judgment and the threat of contempt. Citizens and social and civic organizations must continue to hold a mirror to the judiciary and call out its errant members whenever necessary.

As for the legal profession, it must rise to the occasion by giving this judgment the “respect it deserves”! Members of the Bar throughout the country must stand up as one, and let the judges who delivered this modern day ADM Jabalpur know in no uncertain terms that their judgmentwill not succeed in its objective of intimidating the profession into silence; and that lawyers will not fight shy of their duty to comment on, criticize and expose the institution and its judges when need arises. That, and that alone, is the only fitting answer from the Bar to this bench.

Navroz Seervai is a Senior Advocate based in Mumbai. Read our 2016 interview here.