In Reply to Contempt Case, Bhushan Offers Detailed Critique of SC
Activist-lawyer says criticism of SC can’t be contempt, lists controversial decisions from last 4 CJIs’ tenures.
Advocate Prashant Bhushan has come out swinging in his reply to the Supreme Court’s
contempt case against him for recent tweets, defending the views expressed in those tweets about current Chief Justice of India SA Bobde’s photos on a superbike, as well as his statement that the Supreme Court has played a role in the destruction of Indian democracy over the last six years. In the reply affidavit dated 2 August, Bhushan has also provided a detailed critique of the Supreme Court’s decisions and decision-making to justify his opinion of the court, including a list of problematic incidents and orders of the court under the last four CJIs, broken down by their respective tenures.
THE CJI-BY-CJI TAKEDOWN
Bhushan says he is of the opinion that over the last six years, “we have seen a striking decline in the role of the Supreme Court as being the guardian of the Constitution and rights of people.” And that during the terms of these last four CJIs, there has been an “abdication by the Supreme Court of its constitutional duty to protect basic constitutional values, fundamental rights of citizens and the Rule of Law.”
The highlights from the examples provided by Bhushan for this are as follows:
CJI Khehar’s Tenure (4 January 2017 - 27 August 2017)
- The dismissal of the request for an investigation into the Sahara-Birla diaries which allegedly included reports of payments to PM Narendra Modi when he was chief minister of Gujarat. Heard by Justice Khehar before his appointment, then assigned to a bench headed by Justice Arun Mishra which dismissed it.
- The handling of the Kalikho Pul suicide case, and the accusations made by him against Justice Khehar and others of corruption. Despite Pul’s wife sending a complaint for an inquiry on the administrative side of the Supreme Court, under the In-House Procedure, CJI Khehar had it listed on the judicial side as a case, causing her to withdraw the complaint.
CJI Misra’s Tenure (28 August 2017 to 1 October 2018)
- The way the medical bribery cases were handled, in which CJI Misra himself was potentially implicated. After CJI Misra asserted his right as Master of the Roster to decide which judges would hear the case even though it related to him, petitions asking for a detailed inquiry were dismissed by a bench of Justices Arun Mishra, RK Agarwal and AM Khanwilkar.
- The four judges’ press conference in January 2018, when they warned of the last two CJIs abusing their power as Master of the Roster to selectively assign important and politically sensitive cases to benches “of their preference” without any rational basis for such assignment.
- Examples of this kind of problematic listing in the affidavit include the listing of the Judge Loya investigation case before Justice Arun Mishra, even though more senior judges were available, and the land acquisition cases controversy, where Justice Mishra questionably overturned four years of precedent.
CJI Gogoi’s Tenure (3 October 2018 - 17 November 2019)
- The routine acceptance of information in sealed covers, including the Rafale case, the Alok Verma ‘CBI vs CBI’ case, and the Assam NRC matters.
- The failure to list urgent and important cases like the challenge to the constitutionality of electoral bonds, the challenges to the ‘abrogation’ of Article 370, and the way in which habeas corpus petitions (particularly from Jammu and Kashmir) were not considered a priority.
- The Ayodhya verdict of 9 November 2019, which held the site to belong to the Hindus despite holding that the demolition of the Babri Masjid was illegal, used dubious legal reasoning, didn’t name the author of the unanimous part of the judgment, and included an anonymous addendum that held that the disputed structure was the holy birthplace of Lord Ram – even though that wasn’t an issue for legal determination.
- The way in which the sexual harassment case against CJI Gogoi was handled including him sitting on a bench and criticising the complainant, and his ‘quid pro quo’ nomination to the Rajya Sabha.
- The modification of the Supreme Court Collegium’s recommendations for appointments and transfers of judges, following objections from the Centre, including the Justice Akil Kureshi controversy.
CJI Bobde’s Tenure (18 November 2019 - present)
- The refusal to stay the Citizenship (Amendment) Act 2019 despite all the challenges to it, and not list the petitions either. In addition to this, the CJI refused to hear petitions regarding reports of police violence against protesters in Jamia Millia University and Aligarh Muslim University.
- The handling of the migrant crisis after the imposition of the nationwide coronavirus lockdown, with a Supreme Court bench headed by CJI Bobde accepting the government’s claims that there were no more migrants on the road, and that the exodus was caused by fake/misleading news, on the basis of which several petitions were dismissed. This included the failure to issue guidelines on inter-state travel, including directions to the railways not to charge migrants. The court only took up the matter suo motu after strong criticism, including from retired judges.
- The ‘outsourcing’ of a review of the 4G ban in Jammu and Kashmir to the executive (not by a bench on which the CJI was sitting) itself, and a failure to consider the necessity and proportionality of the move despite its severe consequences.
Bhushan argues that the tweets cannot be considered as contempt for the following reasons:
- The CJI is not the Supreme Court, and so criticising the CJI about what he does during court vacations, or for failing to check the damage being done to Indian democracy, should not amount to contempt of the court itself. “To bona fide critique the actions of a CJI, or a succession of CJIs, cannot and does not scandalise the court, nor does it lower the authority of the court,” he writes, before adding, “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.”
- Retired judges of the Supreme Court and even sitting judges who were part of the court during the tenure of the CJIs in question have criticised the way the court has operated, from recent speeches by Justices DY Chandrachud and Deepak Gupta, to the famous press conference on 12 January 2018, with Justices Chelameswar, Kurien Joseph, Madan Lokur and Ranjan Gogoi.
- While Article 19(2) of the Constitution recognises contempt as a ground for restriction of freedom of speech, this has to be a ‘reasonable restriction’. Preventing citizens from forming and expressing a bonafide opinion about a constitutional institution and discussing this in the public domain to build public opinion for reform, is not a reasonable restriction.
- Other democracies (including the United Kingdom, whose jurisprudence on contempt of court formed the basis for the concept in Indian law) have recognised that making ‘scandalising the court’ an offence is unconstitutional and should be abolished as it is inconsistent with the right to freedom of speech and a fair trial, “since it gives judges, alone, among wielders of power, a special immunity from criticism and a power where they sit as judges in their own cause, to punish their critics.”
https://www.thequint.com/news/law/d...eme-court-freedom-of-speech-cji-controversies
