In Finding Prashant Bhushan Guilty of Contempt, the SC's Reasoning is Hardly Convincing

Ironically, by punishing Bhushan, the bench is unlikely to deter future historians from saying what Bhushan predicted. If anything, future historians are likely to consider the punishment Bhushan receives for tweeting what he did as supporting evidence for such an assessment of our times.

New Delhi: The Supreme Court bench of Justices Arun Mishra, B.R. Gavai, and Krishna Murari, in its judgment on Friday, found lawyer Prashant Bhushan guilty of contempt of court for two tweets which it said had shaken the “very foundation of constitutional democracy”.

In the first tweet, the bench found Bhushan’s statement that the CJI kept the Supreme Court in lockdown mode, denying citizens their fundamental right to access justice “patently false, scandalous and malicious”. “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 undermines the dignity and authority of the administration of justice”, the bench concluded.

The first tweet which the court found contemptuous, said:

“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

Dividing the tweet into two parts, the bench found that the first part dealing with the CJI riding a motorcycle without a mask or helmet was not contemptuous because it is a criticism of the CJI in his individual capacity. It is only the second part which, according to the bench, is false and has the tendency to shake the confidence of the public at large in the institution of the CJI and that of the judiciary.

Reply affidavit ignored

A tweet, by the very fact that it cannot exceed 240 characters, has to be precise and brief, and therefore, devoid of qualifications, if its writer finds it unnecessary.  In his reply affidavit, Bhushan has claimed that the CJI kept the court “virtually” in lockdown mode due to COVID fears (with hardly any cases being heard and those heard also by an unsatisfactory process through video conferencing).

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More important, he didn’t suggest that the CJI denied citizens their fundamental right to access justice, but that the lockdown mode – which he had to impose on the court, for want of an alternative –  resulted in such deprivation.  This is clearly the impression one would get if one reads Bhushan’s reply affidavit.  But Friday’s judgment shows that the bench has not read it.

Many others, including former judges of the Supreme Court, have criticised the court’s inability to secure the rights of the poor, marginalised and migrant workers to access justice during the lockdown. Therefore, the bench’s move to find Bhushan alone guilty for making these remarks, while closing its eyes and ears to similar remarks made by others in other public platforms, makes one wonder whether it had been selective in invoking contempt jurisdiction against Bhushan.

Similarly, Bhushan also referred to widespread dissatisfaction among lawyers with the continued ‘virtual’ functioning of the court and made a fervent demand for early return, with safeguards, of its normal functioning.  The bench has no explanation for why it found Bhushan’s grievance contemptuous, while other stakeholders have expressed similar sentiments.

In any case, the bench didn’t suggest that the linking of the non-contemptuous part of the tweet about the CJI riding the motorcycle with the court’s functioning during the lockdown was the offence.  Since such an inference was not drawn by the bench itself, it is not clear why it found him guilty.

The bench has clearly erred in analysing the tweet as it is, without considering his reply affidavit, which explains it.  If the reply affidavit is not to be considered, why insist on it as part of the procedure and a sign of extending an opportunity of being heard?

As Bhushan put it in his reply affidavit: “Due to the COVID pandemic, the subsequent lockdown and the humanitarian crisis it had created, with the Supreme Court not functioning regularly, access to justice was seriously imperilled”.

The bench has made no reference to this explanation of his tweet in the reply affidavit. None, including the bench, can deny that if the court functioned regularly, more matters could have been heard, and access to justice enhanced as a result.

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Bhushan has not expressed any view on whether the normal functioning of the court amid the pandemic is feasible.  But he is certainly entitled to express his hope that it should be able to function normally with the implied mandatory safeguards like social distancing and mask wearing. It is hard to understand how such an expression of his view could be held contemptuous.

What future historians will say

The bench’s argument about the second tweet, likewise, has no legs to stand on. The text of this tweet reads:

“When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

In its judgment, the bench clearly says that it is not concerned about the first part of the second tweet, wherein Bhushan refers to a possibility of future historians looking back at the last six years to see how democracy has been destroyed in India without a formal emergency. It is not concerned because the first part has nothing to do with the Supreme Court. But it is here that the bench’s unstated and unarticulated leap in logic – which is otherwise clear to anyone who reads the judgment – gets particularly interesting.

In paragraph 67, the bench admits that the emergency era has been considered as the blackest era in the history of Indian democracy. Supposing if one says today, claiming to be a historian of that period, that the Supreme Court had played a dubious role in that era, with the then CJI playing an especially pliant role in aid of the executive, the current Supreme Court is not likely to consider it an offence of contempt of court.

This is because, in the bench’s view, the emergency era is not contemporary history, and therefore, historians of today can freely express an opinion about that era now.

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In addition, the current bench knows that the court itself in 2017 – while declaring privacy as a fundamental right in Puttaswamy – had overruled its previous decision in A.D.M.Jabalpur v Shivkant Shukla, delivered during the Emergency, which was widely perceived by contemporary analysts as well as (future) historians as having contributed to the eclipse of democracy during that era.

But supposing Bhushan had written – during the Emergency – that a future historian would surely find the Supreme Court’s role in the era dubious for conniving at the destruction of democracy, would the court – at that point of time – be justified in considering such a statement contemptuous? And if it did, would Bhushan be allowed to cite facts to back his claim?

Coming back to the present, if Bhushan wishes to crystal gaze and predict what a future historian might say 45 years from today about the role the Supreme Court played in second decade of the 21st century – an era which has, to many, witnessed the weakening of democratic institutions – this should be considered his personal view, one to which he is surely entitled, whether one agrees or disagrees with it today.

Why is the bench so concerned with Bhushan’s predictions about what future historians might say on the Supreme Court’s role in contemporary politics? It is almost as if a sense of paranoia seems to have gripped the bench about what future historians may say, in the light of Bhushan’s tweets. In other words, the bench has found Bhushan guilty because it fears he is right about what future historians will say. What those historians will say about the current Supreme Court is clearly not in the hands of the bench; but the bench believes it has the power to indict and punish someone who claims to have foreknowledge about what the future historian might say.

Ironically, by punishing Bhushan, the bench is unlikely to deter future historians from saying what Bhushan tweeted. If anything, future historians are likely to consider the punishment Bhushan receives for saying what he did as supporting evidence for such an assessment of our times.

In paragraph 68, the bench says that there cannot be any manner of doubt that the said tweet is directed against the Supreme Court, and tends to give an impression that the 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 bench declares, as if it has made some discovery. Of course, it is.

The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the CJI, the bench adds. The impression that the said tweet tends to convey is that the judges who have presided over the Supreme Court in the period of the last six years have played a particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it. None could have been clearer than the bench itself in its interpretation of the tweet.

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But the bench missed the essential part: Bhushan attributes this perception to future historians, and he is entitled to do so, because it is his view. The bench may have a different view of how a future historian will consider the current Supreme Court of India. In answer to Bhushan’s tweet, it should articulate its own view, perhaps by starting a new Twitter handle for the Supreme Court.

Leaps of logic

The bench then made a bizarre link between the reach of the tweet and the probable absence of good faith.  It suggests:

“The publication by tweet reaches millions of people and as such, such a huge extent of publication would also be one of the factors that requires to be taken into consideration while considering the question of good faith.”

In other words, because the tweet reaches millions of people, it should be necessarily lacking in good faith. How these two are linked is not at all clear.

Similarly, the bench’s view that because Bhushan has been a lawyer of 30 years standing, his tweets cannot be fair criticism of the functioning of the judiciary, made bona fide in the public interest:

“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”

Again, the bench seeks to assume that these two phenomena are related, but the causal link here is not at all clear to anyone.

In other words, by finding Bhushan guilty of contempt of court for predicting what the future historian will say of the current Supreme Court, one wonders whether the bench has indicted itself, by expressing its tacit agreement with him.

Bhushan, at best, could be guilty of having tried to imagine, within the limited space allowed by a tweet,  a facet of the counterfactual history of the present, through the eyes of a future historian.   Whether he is correct in his analysis is for the future historian to judge. Not this bench, which needs to learn what counterfactual history is all about.