"Supreme Court has come across as an intolerant institution": Justice AP Shah on Prashant Bhushan conviction
In a conversation with Asiaville, former Chief Justice of Delhi and Madras High Courts Justice AP Shah said that the Supreme Court holding Prashant Bhuhan guilty of contempt was merely an "act of flexing muscles" and with this the top court has virtually announced that it is not open to any criticism.
With the conviction of lawyer and activist Prashant Bhushan, the Supreme Court has not only come across as an intolerant institution, but it has virtually announced that it is not open to any kind of criticism, said Justice AP Shah, former Chief Justice, Delhi and Madras High Courts in a conversation with Asiaville.
One of the many signatories to a statement condemning the judgment, Justice AP Shah said that not only is the judgment wrong but it will have a chilling effect on free speech in India.
"Without a doubt this judgment diminishes the dignity of the Supreme Court. But we have to look at the tweets Mr Bhushan has been convicted for. The first tweet about CJI sitting on a motorbike is trivial and inconsequential. The Supreme Court realises it and that's why it had to rake up a 9 year old contempt case, because they knew that the case won't stand alone on the tweets. About the second tweet, I concede that he may have put it rather harshly or crudely but it is the truth," he asserted, adding that he himself had expressed similar opinions as recently as last week.
Stating that with this verdict the apex court has failed to protect the fundamental right to freedom of speech and expression, Justice Shah asked whether the Supreme Court will now punish everybody that criticises its judges.
Questioning the timing of the judgment, the retired judge said, "The hasty manner in which it has been done will not restore people's confidence in the court. It will only damage the credibility of the institution."
Judge and the Court, All the Same?
One question that this judgment has raised is whether it is an attack on the independence of the judiciary if someone criticises individual judges. Justice Shah was of the opinion that the criticism of a judge should not usually amount to contempt. "The judge concerned can sue for libel but contempt doesn't automatically follow. We need to learn to distinguish between allegations on the judges and allegations on the institution," he added.
"The same question pops up in the case of the 9-year old case as well. He (Bhushan) had accused some retired judges of misdemeanor. The question is when does a libel cease to be libel and becomes contempt of court. And this legal ambiguity hasn't even been addressed in the Bhusan judgment," Justice Shah said.
"In my opinion, the judgment is completely wrong. It is quite lengthy, about 108 pages and upto page 93, it's just reproduction of past Indian and foreign judgments. In those 108 pages, the defences raised by Mr Bhushan have not been considered by the court. It's well established that contempt action is in the nature of a trial, where the court has to record evidence and the court is also duty-bound to take into account the defences raised by the accused. In Mr Bhushan's case none of this happened. They just simply declared him guilty of contempt on the finding that his tweets have a tendency to shake the foundational pillars of judiciary," said Justice Shah.
He said that this judgment is in clear violation of natural justice, violative of the due process of law and ultimately and most importantly, it has a chilling effect on free speech.
Justice Shah also pointed out how the court circumvented the laws of the Supreme Court or the Contempt of Courts Act by converting a "defective" contempt petition by an individual into suo motu cognisance.
"When Mr Bhushan's tweets reappeared in June, one Mr Maheshwari filed a contempt petition. But a contempt petition can be filed only after obtaining a written consent from the Attorney General or the Solicitor General and Mr Maheshwari's petition did not have that. So it was not maintainable and defective. There is no provision in Supreme Court rules or Contempt of Courts Act where a petition from an individual can be converted into a suo motu petition."
Elaborating on why the lawyer and activist was chosen among many who have criticised the judges in the recent past, Justice Shah said, "It is merely an act of flexing muscles by the Supreme Court. Mr Bhushan is a renowned advocate and has made immense contribution to public causes. He, in fact, is a crusader. He has fought many PILs on very many causes and has spent a great deal of time fighting malpractices and corruption in the judiciary and especially the master of the roster system."
Relevance of Criminal Contempt
Justice Shah also spoke about how there is a need to rethink the Criminal Contempt law which we inherited from the British and dates back to monarchy. Calling the judgment a "judicial overreach", he said, "It is established that contempt action should be taken in rare cases. It is also understood that the Court shall not invoke contempt power to punish those who are critical. I think time has come to amend the contempt law or be made to use sparingly."
'The Broad Shoulders of SC'
Invoking the former Chief Justice of India, Justice Sam Piroj Bharucha, Justice Shah reminded us how the Supreme Court is supposed to have shoulders broad enough to shrug off criticism.
"I am unable to understand how those tweets manage to shake the foundation of the Supreme Court. When the four sitting Supreme Court judges gathered at the lawns and criticised then CJI and accused him of being remote-controlled were they held guilty for contempt? Those four judges spoke to the people of India because they were concerned about the institution. And that is the case here as well," Justice Shah said.