Note: This interview was originally published on July 28, 2020, and was republished on August 14, 2020, after the Supreme Court found Prashant Bhushan guilty of contempt of court.
One of India’s foremost and most highly regarded Supreme Court lawyers has said that its “quite astonishing and disappointing” that the Supreme Court has chosen this moment, in the middle of a worsening COVID-19 crisis and when the court is only functioning virtually, to pick up and hear contempt cases against the human rights lawyer Prashant Bhushan.
One of the cases, the Tehelka one, is 11 years old and has not been heard for the last eight years. Dushyant Dave, who is president of the Supreme Court Bar Association, said that as of July 1 there are 19,492 regular matters before the Supreme Court, of which 83 are not ready for hearing. He said it was hard to explain how and why the Supreme Court has chosen this matter out of the remaining 19,409 cases which include critical constitutional issues like the Citizenship Amendment Act and habeas corpus petitions arising out of the detentions in Jammu and Kashmir which affect the liberties and rights of Indian citizens.
In a 40-minute interview to Karan Thapar for The Wire, Dave described Prashant Bhushan as “a thorn in the eyes of all establishments” but added that the manner in which the Tehelka contempt case, which dates back to 2009, has been prioritised does suggest, “Prashant Bhushan’s rights could be seriously affected”.
Dave said it does look as if Prashant Bhushan is being singled out and victimised.
Speaking about the second contempt case Prashant Bhushan faces, which arises out of one of his tweets commenting on a photograph of the Chief Justice sitting on a Harley Davidson, Dave said this “definitely does not amount to contempt”. He said “scandalising a judge is different to scandalising an individual”.
The lawyer added that “today’s judges are completely oblivious to law”. He said, “Freedom of speech is a sacred right…it cannot be taken away by contempt action.”
Answering questions put by The Wire on Bhushan’s letter to the Chief Justice dated July 25, a copy of which is in The Wire’s possession, where Bhushan points out that Justice Arun Mishra, who is presiding over the bench that is hearing both contempt cases, has a history of “perceived hostility” to him, Dave said that “from his point of view Prashant Bhushan is right to feel that he will not get a fair and impartial hearing” from Justice Mishra.
Dave said he could not understand why the Bhushan contempt cases had been placed before Justice Mishra. Whilst he understood that they could not be placed before the Chief Justice, because one of them concerns the Chief Justice, he felt they should have been put before the other five or six top judges.
Dave also said the demand the contempt cases be heard only after the Court resumes physical functioning is “absolutely fair”. He said it “should be acceded to”.
In part two of the interview i.e. after the commercial break, Dave spoke about the Law of Contempt and said that it “absolutely does” conflict with and impinge upon freedom of speech. He said Article “19(1)(a) is a sacred right”.
However, Dave told The Wire that there was no need to abolish the Law of Contempt as Britain did in 2013. He said the judiciary needs to be protected. He said there are times when civil contempt is necessary and even occasions, when scurrilous attacks are made on the judiciary, when criminal contempt could be necessary. However, he added, now that truth is an admissible defence judges need to “reinvent the Law of Contempt”.
The above is a paraphrased precis of Dushyant Dave’s interview to Karan Thapar for The Wire. Please see the full interview for further details and accuracy.