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In his reply filed before the Supreme Court in the contempt case filed against him, Advocate Prashant Bhushan has stated that critiquing the actions of a Chief Justice does not scandalise or lower the authority of the Court.
The 142-page affidavit explains in detail why his tweets - the reason why contempt proceedings were initiated against him - are justified and cannot be considered contempt of court.
On July 22, the Supreme Court issued notice to Bhushan in a suo motu contempt case on the basis of a plea filed by Advocate Mehak Maheshwari. The Court is scheduled to hear this case again next on August 5.
Maheshwari’s plea had sought for initiation of contempt proceedings against Bhushan for two of his tweets, dated June 27 and 29 of this year. The first one pertained to Bhushan’s commentary on a picture of Chief Justice of India SA Bobde on a high-end motorcycle, whereas in the second, Bhushan expressed his opinion on the role of last four CJIs amid the state of affairs in the country.
Bhushan has contended that neither of these tweets can be said to constitute contempt of court. He says that his tweet on CJI Bobde appearing in a picture on a motorcycle without a helmet or a mask was a mere expression of his anguish with an intention to highlight the incongruity of the situation. As far as the tweet on the role of the last four CJIs is concerned, Bhushan says that he was expressing his bona fide opinion about the state of affairs.
The picture of CJI Bobde on a motorcycle had garnered a lot of attention at a time when the country was battling the COVID-19 pandemic.
In this context, Bhushan says,
“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.”
Bhushan further points out that the picture showed the CJI in the presence of several people, without wearing a mask, which is against the guidelines to prevent the spread of COVID-19.
“This fact was meant to highlight the incongruity of the situation where the CJI (being the administrative head of the Supreme Court) keeps the court virtually in lockdown due to COVID fears (with hardly any cases being heard and those heard also by a unsatisfactory process through video conferencing) is on the other hand seen in a public place with several people around him without a mask.”
This expression, the affidavit states, cannot be said to constitute contempt of court, and should it be so held, “it would stifle free speech and would constitute an unreasonable restriction on Article 19(1)(a) of the Constitution”
As regards the second tweet on the state of affairs in the country in the last six years and the role of the last four CJIs during this period, Bhushan invokes the defence of bonafide opinion. He says that his tweet has three distinct elements – the state of affairs and democracy in the last six years, the role of the Supreme Court during this time in “allowing destruction of democracy”, and the role played by the last four CJIs in the same.
“At a time when the country witnessed an assault on all democratic norms, liberty of citizens, and the secular fabric, the Supreme court by various acts of omission and commission acted in a manner that allowed the majoritarian executive at the centre to trample upon the rights of citizens, It seems that basic judicial checks that must be in place before a powerful executive were completely missing. The court surrendered while tyranny and majoritarianism gained a deep foothold in the country. All these egregious assaults on civil rights and on institutions have been allowed to go through, without any accountability, under the benign gaze of the Supreme Court. It is in this political climate that most independent regulatory institutions have capsized and even the Supreme Court has not been able to stand up as a check on the excesses of the government.”
Affidavit filed in Supreme Court
Citing various precedents, Bhushan adds that the Chief Justice of India is not the Court, and that raising issues or concerns about the conduct of the CJI does not amount to scandalising or lowering the authority of the Court.
“The court, in this case the Supreme Court, is an institution consisting of 31 Judges and its own long-standing and enduring traditions and practices, and the Court cannot be equated with a Chief Justice, or even a succession of four CJI… To assume or suggest that ‘the CJI is the SC, and the SC is the CJI' is to undermine the institution of the Supreme Court of India.”
Affidavit filed in Supreme Court
The affidavit makes reference to speeches delivered by the Supreme Court's Justices DY Chandrachud and Deepak Gupta highlighting the curtailment of dissent in present times.
Bhushan has also brought up the judges press conference held in January 2018, when the four senior-most judges of the Supreme Court highlighted certain issues in the institution's functioning.
Also cited are various interviews and articles of eminent persons in the legal field, in which they have criticised the functioning of the Supreme Court under the stewardship of the last four CJIs. Two articles published on Bar & Bench - one by Senior Advocate Dushyant Dave on the anti-Citizenship Amendment Act protests, and the the other by Senior Advocate Arvind Datar on the Court's handling of the COVID-19 migrants crisis - are also cited.
The affidavit pulls out specific examples of how the "Supreme Court has played a substantial role in allowing the destruction of our democracy", and the role of the last four CJIs in allowing the same.
During the tenure of CJI JS Khehar, Kalikho Pul’s suicide note and the Sahara-Birla case are pointed out.
The medical college bribery cases, the judges press conference, judgments on the BH Loya and Bhima Koregaon cases, as well as the impeachment proceedings against CJI Dipak Misra during his tenure are cited.
The affidavit states that CJI Ranjan Gogoi’s tenure was marred by the NRC case, sexual harassment allegations, sealed cover jurisprudence, electoral bonds case, handling of petitions against abrogation of Article 370, and the Ayodhya judgment, to name a few. This was followed by his Rajya Sabha nomination.
The inaction of the Court during the tenure of CJI SA Bobde - particularly on issues around the CAA protests, attacks on universities, the Delhi riots, the migrants crisis - is brought up.
The affidavit concludes,
"I could multiply these instances but I think the above cases and their decisions and the inaction of the courts in dealing with some of these critical cases are enough for me to form my opinion about the role played by this Hon'ble Supreme Court in last 6 years in undermining democracy which bonafide opinion I am entitled to form, hold, & express under Article 19(l)(a)."
Affidavit filed in Supreme Court
In relation to the contempt cases against him, Bhushan has also challenged the action of its Secretary-General to list the contempt petition filed against him on the judicial side, without the consent of the Attorney General.
He has also moved the Supreme Court along with senior journalist N Ram and former Union Minister Arun Shourie, assailing the constitutionality of Section 2(c)(i) of the Contempt of Courts Act, 1972 which deems acts that scandalise or lower the authority of courts punishable as criminal contempt of court.
Read the Reply Affidavit: