Cover Story

Why Selective Contempt Proceedings Only?

Written by Hasan Khurshid

“The bedrock of our democracy is the rule of law and that means we have to have an independent judiciary, judges who can make decisions independent of the political winds that are brewing.” Caroline Kennedy

“All the rights secured to the citizen under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.” -Andrew Jackson

LAWYERS UPDATE in its June, 2019, cover story, captioned, “Street trials of CJI scandalised highest judiciary”, had forcefully voiced to uphold the dignity of the highest prestigious institution, the Hon’ble Supreme Court of India. We defended Hon’ble former Chief Justice of India (CJI), Justice Ranjan Gogoi and had strongly condemned one and all who openly criticised, scandalised and carried out multiple street and media trials with regard to the allegations of sexual harassment made by a 35-year-old  woman who used to work as a junior Supreme Court staffer and had written to 22 judges of the Supreme Court and four media houses on April 19, 2019, alleging that the sitting Chief Justice of India Ranjan Gogoi had made sexual advances on her at his residence office on October 10 and 11, 2018. Our contention was that instead of street trials, legal procedure should have been followed in the matter.

Article 124(4) of the Constitution lays down the procedure of removing a judge of the Supreme Court/CJI in the manner provided in Article 61. The Supreme Court Regulations on Sexual Harassment, 2013, have no procedure for sexual harassment complaints against judges. An inquiry in an ordinary departmental proceedings, can not be equated to an inquiry in impeachment proceedings against a judge, under the Judges(Inquiry) Act, 1968.

However, no such procedure was followed. On the contrary doors of unprecedented politicking opened up in and outside the Supreme Court four walls. The Supreme Court Bar Association and the Supreme Court Advocates on Record Association passed resolutions criticising the CJI violating the process in hearing his own case.

However, the Bar Council of India (BCI) and Supreme Court Employees Welfare Association supported CJI. The legal fraternity divided itself into groups like political rivals without realising the contemptuous nature of their actions. Prominent lawyers wrote derogatory articles in newspapers against the sitting CJI, gave interviews to print, electronic and social media. Even the former judges openly criticised the CJI in public domain through different media sources. About 55 protestors mostly women lawyers and activists were detained outside the Supreme Court against the procedure adopted to deal with a sexual harassment case against CJI. The women lawyer protestors shouted slogans of “Supreme Injustice”.

This was not the first case of sexual harassment against a judge of Supreme Court or High Court. The accused judges included former SC judge, Justice Ashok Kumar Ganguly; Justice S.K. Gangele of Madhya Pradesh High Court ; and former SC Judge, Justice Swatantar Kumar, who had later on become the President of National Green Tribunal (NGT).

It is pertinent to mention here that in Moti Lal vs. State of M.P, SCP (Cri) No.4751 of 2006, Dr. Justice Arijit Pasayat, on July 15, 2008, had ruled: that in Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. The same approach was adopted by Supreme Court in State of Maharashtra vs. Chandraprakash Kewalchand Jain, 1990(1) SCC 550 and in the state of Himachal Pradesh vs. Asha Ram, AIR 2006 SC381.

Looking in the recent past, we find numerous instances of derogatory remarks against higher judiciary not only by public men but also by fellow judges:-

Commenting on Justice Ranjan Gogoi; Justice Markandey Katju, former SC Judge tweeted : “ I have been a lawyer for 20 years and a judge for another 20 years. I have known many good judges and many bad judges. But I have never known any judge in the Indian judiciary as shameless and disgraceful as this sexual pervert Ranjan Gogoi. There is hardly any vice which is not in this man. And now this rascal and rogue is going to adorn the Indian Parliament. Hari Om.

In 2015, Justice Markandey Katju had also told a gathering of Punjab and Haryana high court lawyers that 50% of the higher judiciary is corrupt.
Earlier, BJP’s deceased leader Arun Jaitley, on September 5, 2013, as leader of opposition in Rajya Sabha said, “There is a proposal to increase the age of retirement of judges, please do it but with conditions. We are lavishly creating post-retirement benefits for them. If we don’t create, they themselves create it.

The view of the Supreme Court is that every member of the CIC must be a retired judge.”

Arun Jaitley further said,
“There is a situation where you say what should be the fees of a college. It is an accounting matter but the judicial order says that the fees of an engineering college should be decided by a retired judge. I think the temptation of continuing in job is to keep occupying the bungalows. It is a very serious temptation. There is a danger that the desire of a post-retirement job influences the pre-retirement judgements.” 

Madhav Arey, Shubhankar Dam and Giovanni KO, authored a 2017 working paper- “Jobs for Justice(s): Corruption in Supreme Court of India.” The contents of the paper were based on a dataset of all Supreme Court judgements between 1999 and 2014 involving the government, found that authoring judgements “in favour of the government” had a “positive” association with the likelihood of a prestigious job after retirement as Supreme Court judge.

Talking to Lawyers Update, JUSTICE B.A. KHAN, former Chief Justice of J&K high court said, “I have heard all the three interviews given by Ranjan Gogoi to leading TV channels in which he sounded aggressive and brash, as usual, besides being peevish and immature. His explanation or justification for Rajya Sabha nominations also appeared ridiculous, if not absurd and, at times sounded laughable.

Justice B.A. Khan suggested, “A law would have to be enacted banning a CJI & Judges of Supreme Court from accepting any post-retirement engagement, job or assignment offered by the government. This would, indeed preserve and safeguard rule of law and independence of the most vital limb of judiciary as custodian of the Constitution.

JUSTICE MADAN B LOKUR, former SC judge, in his article published in The Wire, on March 23, 2020, observed that “For a judge whose tenure was marred and mired in controversies…it was unwise to have accepted the offer… His acceptance of the nomination, and criticism that has naturally generated, has considerably diminished the normal stature of the judiciary, therefore collaterally impacted on its independence.”

Justice Lokur pointed out, “PILs relating to detention of children and preventive detention of adults in Kashmir under the dreaded Public Safety Act were not taken up with due despatch…dealing with a habeas corpus.”
Justice Lokur further said, The Supreme Court in a PIL pertaining to police atrocities against students protesting against Citizenship (Amendment) Act, “declined’ to hear it till the violence stops.” On the contrary, “The government of Uttar Pradesh put up hoardings in Lucknow, displaying the photographs, names and addresses of the alleged rioters… On the challenge to the hoardings through a PIL, Allahabad High Court ordered their removal forthwith. Rather than complying with the order, the State government preferred a petition in the Supreme Court. The petition was treated as an urgent matter and taken up for hearing the very next day…. This redefines the independence, impartiality and integrity of the judiciary. Has the last bastion (of democracy) fallen?”

MADHU PURNIMA KISHWAR, a social activist, challenging Ranjan Gogoi’s nomination as Rajya Sabha member, expressed doubt on the credibility of the judgements delivered by SC under Gogoi as CJI. These included procurement of Rafale aircraft, CBI director Alok Verma’s transfer by government before the completion of his term; Ram Janmabhumi case, granting the disputed land to Hindu claimants, a key objective of the BJP government. Madhu also contended that Ranjan Gogoi both as a judge and CJI, was actively involved in pushing the process of National Register of Citizens in Assam.

There has been no dearth of contemnors in the past, but most of them have gone unnoticed or ignored. However, three noticeable cases of contempt have recently surfaced on the canvas of legal domain. The first one was about the PIL filed in Delhi High Court by social activist Harsh Mander, who sought the registration of FIR against the inflammatory speeches and slogans by four BJP leaders namely Kapil Mishra, Anurag Thakur, Parvesh Verma and Abhay Verma in February, 2020.

The Bench of Justice Muralidhar and Justice Talwant Singh, rapped the Delhi Police for inaction and asked it to take a ‘concious decision’ of filing FIRs. However, hours after this court order, Justice Muralidhar in the midnight of February 26, 2020, was transferred to Punjab and Haryana High Court.

The matter on February 27, 2020, came before the bench of Chief Justice D.N. Patel and Justice C. Hari Shankar. The court posted the matter for April 13, 2020, prompting the petitioner Harsh Mander to challenge that order in Supreme Court.

The petitioner was supposed to be heard in Supreme Court on March 4, 2020, but instead of hearing Mander’s petition, the SC turned its focus on allegations of solicitor general Tushar Mehta, against Harsh Mander, saying that Mander had made derogatory remarks against Supreme Court at a rally at Jamia Millia Islamia. Reacting to Mehta’s version, CJI S.A. Bobde said, “If this is what you feel about the court, then we have to decide what to do with you.”

Attorney General K.K. Venugopal on August 23, 2020, refused to grant permission before the Supreme Court for the initiation of criminal contempt of court proceedings against Bollywood actor Swara Bhaskar for her statement on SC’s judgement on Babri Masjid. The plea against Bhaskar which was filed in the apex court by Usha Shetty was placed before AG to list matter before the court, as per Section 15 of the Contempt of Court Act and Rule 3 of Rules to Regulate Proceedings for Contempt of Supreme Court.
According to the petitioner, Bhaskar had on February
1, 2020, attended a panel discu-ssion organised by the Non-Government Organisation (NGO), ‘Mumbai Collective’ on the topic Artists Against Communalism. During the discussion, Bhaskar made the following statement: “We are now in a situation where our courts are not sure whether they believe in the Constitution or not…we are living in a country where the Supreme Court of our country states in a judgement that the demolition of Babri Masjid was unlawful and in the same judgement rewards the same people who brought down the mosque.

The third and crucial contempt is against lawyer Prashant Bhushan, who had posted two tweets, one against the Supreme Court on June 27, 2020, and another against CJI Bobde on June 29, 2020. Bhushan’s first tweet said, “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.”

The second tweet referred to CJI Bobde, in which he said, “The CJI rides a Rs. 50 lakh motorcycle belonging to a BJP (Bhartiya Janata Party) leader at Raj Bhawan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice.”

Advocate Mehek Maheshwari, filed a petition before the SC on July 9, 2020, seeking initiation on contempt of court proceedings under Contempt of Court Act, against Bhushan for the tweets. Based on Maheshwari’s petition, the court took suo moto cognizance of the matter and listed the case on July 22, issued notice to Bhushan.

After a day long hearing on August 5, the Supreme Court pronounced its verdict on August 14, 2020, holding Prashant Bhushan guilty of criminal contempt of court. on August 20, 2020, SC asked Bhushan to reconsider his stance and offer an apology by August 24, 2020. On this, Bhushan gave a statement to court, “An apology cannot be a mere incantation and any apology has to be sincerely made. If I retract a statement before this court that I otherwise believe to be true…. would amount to be the contempt of my conscience and of an institution.”

Again on August 25, 2020, the court gave Bhushan a fresh opportunity to apologize, but no retraction was offered by Prashant Bhushan, who maintained that an apology would be ingenuous and a “contempt of his conscience”.

Attorney General K.K. Venugopal, who appeared in his personal capacity, submitted before the court, “your Lordships should reprimand him and tell him not to repeat in future, but do not punish him. It will be greatly appreciated at the Bar. That will be a fitting end to this case.”
Several eminent jurists…including former AG, Soli Sorabjee, Justice RM Lodha and Justice Madan B Lokur, said that the court was being overly harsh in initiating criminal contempt proceedings against Bhushan.

In contrast to the above, Senior Advocate B.V. ACHARYA, former Advocate General, Karnataka, justified the pronouncement of contempt punishment against Prashant Bhushan. Acharya pointed out that raising a hue and cry claiming that the judgement has dealt a deathblow to the fundamental right of freedom of speech and expression is totally unjustified. The demand for repeal of the law of criminal contempt will enable vested interests to freely scandalise the judges and lower the dignity of the courts with impunity.

Dr. SURAT SINGH, Harvard and Oxford educated Supreme Court lawyer said, “I will express my opinion in 2 stages. Stage 1, I will enunciate the principles that should guide the discourse on contempt of court controversy. Stage 2, how these principles are applied in the present controversy.” 

“As I have expressed my views to several TV channels, the contempt of court controversy may be looked at in the following frame of reference:

  • In a democracy, robust, vigorous and fair comments on the working of all the institutions should be encouraged with the purpose of further  improvement, innovation and reform.
  • The discussion should be always done in a mutually respectful manner.
  • It should be done with bonafide motives aimed at IMPROVING the institution and not DENIGRATING / DESTROYING the institution.”

“The guiding role model is legendary lawyer and jurist Nani A. Palkhivala. In the debate on the power of the Parliament to amend the Constitution, Palkhivala argued that the power to amend is the power to IMPROVE and not the power to DESTROY the basic features of an institution. (famous case of Keshavananda Bharti- 1973).”

“Applying these principles to the present controversy of Prashant Bhushan and contempt of court proceedings by Supreme Court, I say this:

  • With due respect to my esteemed colleague,  Prashant Bhushan should not have sat in judgement over Supreme Court judges in his self-appointed role of deciding who is corrupt and who is not among the Chief Justices of India. This is not the way to improve the system. It is an expression of personal frustration and not systemic reformation.
  • But  Supreme Court should also be not too touchy. It should have ignored the personal comments. The foundation of Supreme Court is robust enough that trivial comments will not affect it. And as a final reminder to my revered Supreme Court, I will say reputation / credibility / confidence of the people in the members of judiciary are built ON WHAT YOU DO rather than WHAT PEOPLE SAY.”

Noted lawyer YAWER QAZALBASH having to his credit 6 decades of legal practice said, “The prosecution of Prashant Bhushan, and the 14th August guilty verdict by the Supreme Court for the twin tweets and fixing August 20 for sentencing of the accused, had initiated a debate among legal fraternity and the academic for criticism of judges and freedom of speech, and as well generated widespread reactions started pouring in the media from public at large, on whose purported behalf the 108 page guilty verdict was delivered.”

“Perhaps Prashant Bhushan was selected to instil a fear among others to keep silence about the irregularities generally seen in the lower judiciary or the high courts. Prashant Bhushan did not budge to take time or reconsider his statement and stood the ground to face the sentence, which enhanced his prestige for honesty and fairness.”

“The contempt law had been abolished in Britain, from where it had initiated, but the Law Commission of India found it fit to recommend its continuance in India. Someone said, “Supreme Court has broad shoulders” and suggested that it can be self-correct. When a newspaper caption showed Lord Templeton and two other Judges “You Old Fools”, the Lord did not initiate any proceeding. When asked, the Lord replied that half of that statement was true, as he was an old man, and the other half is simply perception of someone else though, he did not consider himself to be a fool. As far as fragility of prestige of court and the contemnor is concerned, in the whole of the episode, the public at large remains the judge.”

Whereas, in Indian context, former Mardras High Court Judge Justice K. Chandru said, “In Tamil Nadu, a person wrote a letter to the High Court after the High Court had acquitted a murder accused. The letter stated that since the High Court had acquitted the accused, it should tell public as to who is the actual culprit. The High Court punished him for criminal contempt of court. What is ‘scandalising’ in that letter? He was not attributing any motives to the judges. It was only an immature statement and also showed the person’s lack of understanding of criminal law.”
According to former SC Judge V. Gopala Gowda, “The definition of criminal contempt on the ground of scandalising the court is very vague. The word ‘scandalising’ must be clarified.” Justice K. Chandru, says, “Judges are using this as a weapon to silence critics. The word ‘scandalises’ is susceptible to dubious interpretation. Therefore, it has to go.”

The Hindu group director N. Ram, activist Arun Shourie and advocate Prashant Bhushan have on July 31, 2020, moved to Supreme Court challenging the validity of Section 2(c) (i) of the Contempt of Courts Act. The petitioners contended that “It violates the right to free speech and expression guaranteed under Article 19(1)(a). It is unconstitutional as it is incompatible with preambular values and basic features of the Constitution.” The petitioners have quoted, “A mere interrogation by a traffic constable about the red beacon on the hood of a judge’s car was held to be contempt on the ground of scandalising the court.”

Giving his valuable views noted legal luminary, FAIZAN MUSTAFA, vice chancellor, NALSAR University of Law, feels that the public confidence in the judiciary is strengthened not by the resort to contempt powers but by orders and judgments.

“Lawyer and social activist Prashant Bhushan’s conviction with godspeed for contempt of court has revived the debate on the relevance of contempt law in a modern liberal democracy. The Supreme Court of India has said that his tweets, two of them, have undermined the dignity and the authority of the most powerful court and have the effect of destabilising the very foundation of Indian democracy. This controversial judgment may be technically and legally correct but has it enhanced the stature of the Court? Is it right to punish critics of the judiciary in the name of the people? Should civil contempt be given more importance? And what reforms should be introduced in criminal contempt?”

“Indian judges make excessive use of contempt powers. As in the Indian Judiciary Report (2016-17) published by the Supreme Court; High Courts had 96,310 civil contempt cases, i.e. wilful disobedience of court judgments and orders on June 30, 2017. Thus, civil contempt is far more serious generally committed by the government than so-called ‘scandalising of court’ by mere statement. Even the number of criminal contempt cases is also quite impressive with 586 cases. In A.K. Gopalan (1950), the majority took the positivistic view of Article 21 and expressed their helplessness as preventive detention law satisfied the requirement of ‘procedure established by law’. In ADM Jabalpur (1976), a majority, like in the Prashant Bhushan case, took the highly legalistic view and held that since Article 21 is under suspension due to Emergency, the writ of habeas corpus cannot be claimed. Subsequent decades proved that in both the cases, majority decisions did disservice to the Court’s reputation and it were dissenting judges such as Justice Syed Murtaza Fazl Ali and Justice H.R. Khanna who had really enhanced people’s faith in the judiciary. The Court itself overruled these two judgments in Maneka Gandhi(1978) and K.S. Puttaswamy (2018).”

“In all contempt judgments, the Court has been using its powers in the name of the people and Justice Arun Mishra’s Bench merely relied on them. It cited the Brahma Prakash Sharma (1953) judgment, wherein the Supreme Court had justified contempt powers by observing that ‘it is intended to be a protection to the public whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened’, and that contempt powers are to be invoked to restore this confidence.” The top court had further elaborated that ‘such conduct is punished as contempt for this reason that it tends to create distrust in the popular mind and impair the confidence of the people in the courts which are of prime importance to the litigants in the protection of their rights and liberties’. Similarly, in Hira Lal Dixit (1955), the top court again referred to the confidence of the people in the integrity of the judges.”

“The Justice Arun Mishra-led Bench itself admitted that critics are the instruments of reform, but not those actuated by malice; instead by those inspired by public weal. Is Mr. Bhushan’s long career as a public interest litigation lawyer not the testimony of ‘public weal’ and an absence of ‘malice’? Is it right to determine ‘good faith’ on the basis of mere extent of publication? In a country of 1,312.2 million people (estimated in 2019), Twitter users constitute an insignificant minority of an estimated number of over 34 million (2019), and Mr. Bhushan just has 1.6 million followers. In fact tweets are not taken seriously by the people.

One hopes the Court will consider these in determining the sentence.”
“Just like the Supreme Court’s judgment on sedition in Kedar Nath Singh (1962), a mere scurrilous attack against the courts/judges should not be punished if it does not lead to an actual obstruction of the judicial process. In Shiv Shankar (1988) and Rachapudi Subba Rao (2004), the Supreme Court itself had held that criticism of the court that does not impair and hamper the administration of justice cannot be punished as contempt.”

The matter however came to close with the Hon’ble Supreme Court ordering Prashant Bhushan to pay a fine of Rupee one, as punishment to contempt of court by September 25, 2020. If he fails to do so, he will have to undergo simple imprisonment of three months and will also be debarred from practicing before the apex court for three years.

“So long as we may have an independent judiciary, the great interests of people will be safe.”
-John Ruttedge

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Hasan Khurshid

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