New Delhi: A day after India’s apex court found lawyer Prashant Bhushan guilty of criminal contempt over two tweets, editorials in newspapers warned that the court’s decision would shrink the space for dissent and was contrary to the actions by supreme courts of other countries.
On Friday, a three-judge bench of the Supreme Court held that advocate and activist Prashant Bhushan was in “serious contempt” for two tweets posted in June this year. The case was taken up suo moto by the court on July 21, after a complaint filed by one Mahek Maheshwari.
The largest circulating English newspaper, Times of India, felt, in an editorial published on Saturday, that the judgment “could constrain the space for bona fide criticism of the judiciary”.
It specifically referred to the line in the Supreme Court’s judgment which said that if Bhushan’s tweet was not “dealt with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations”.
“However, judges in liberal democracies like the US and UK have taken the opposite course, the latter’s parliament too decriminalising the “scandalising” of courts in 2013. In 2018, four SC judges themselves came out publicly against the then CJI,” said the TOI editorial, referring to the unprecedented move in January 2018 when the four justices of the Supreme Court after the Chief Justice of India held a press conference.
It noted that unlike top courts in other countries, India’s Supreme Court has not limited itself to just constitutional matters. “With intimate involvement in the nation’s affairs come bouquets and brickbats, as politicians will attest to. Criticism can only make such a failsafe institution stronger. A liberal outlook towards trenchant critics only reaffirms that courts function without fear or favour”.
TOI’s rival English paper, Hindustan Times published an editorial, titled “The SC must introspect”.
Describing the judgment as “disappointing”, the HT editorial clarified that the newspaper does not endorse the content of the two tweets of Bhushan, “but the issue here is the manner in which court has dealt with the issue, which is more about individuals and less about the court itself”.
While there was a “certain rationale” for provision of contempt, the editorial noted that its legitimacy came only when it was used in rare circumstances, like when state or citizens refused to abide by the court’s order or there is clear evidence of obstruction or the court itself was targeted.
The HT editorial cited the 2012 UK Law commission report that recommended that “offence of “scandalising the court” was an infringement of freedom of expression that should not be retained” and it was subsequently implemented by the UK parliament.
“In India too, contempt must not apply to criticism of judges because that doesn’t necessarily mean criticism of the court. And even criticism of the court should be allowed. If citizens point out what they think is a shortcoming of the court — be it in terms of how it is prioritising cases or adopting a certain process of jurisprudence or the logical inconsistencies in a certain order — allow it,” wrote the newspaper.
While all criticisms may not be fair or well-reasoned, the HT editorial noted that only discussions in the public sphere can strengthen institutions and democracy. “The apex court needs to have a far more liberal interpretation of the contempt provision, even as it safeguards the sanctity of the judicial process”.
The Indian Express noted that the judgment was a “sobering moment”, especially as it came a day before India celebrates freedom on Independence Day.
The newspaper asserted that the order “can, and will, be read as the Supreme Court showing a thin skin and wielding the offence of contempt to constrict the fundamental freedom of expression”.
The SC has sent a “chilling message”, the Express editorial stated, that that “criticism could carry a high cost by leaving an impression of heavy-handed use of a blunt instrument against an individual citizen”.
“A citizen who has a record of standing up and showing the mirror. Clearly, the SC has not heeded, as it has done earlier, its duty to be magnanimous, and to display the higher tradition of the higher courts — of “majestic liberalism”,” it wrote in the editorial titled, “Guilty”.
Noting that trust and faith cannot be imposed through coercion or through an “antiquated law”, the Indian Express asserted that the “Contempt of Courts Act, 1971, does not belong in a country celebrating its 74th Independence Day”.
The court’s power of contempt in the constitution needs to be reconciled with the “constitutional values of free and fair criticism”. “And that balancing, that harmonisation, has to be done by the court, keeping in mind the nature of the new public square where hyperbole, exaggeration, even the cheap shot, may need protection for the truth to emerge,” said the editorial.
The newspaper bluntly described the judgement as a “self-goal” and harmful to the institution, which it said was “compounded by the fact that it has acted against Bhushan when it is seen to turn a deaf ear and an unhurried eye to several important cases — electoral bonds and the constitutionality of Article 370, to take just two — and when processes of justice, like all else, have been slowed down by COVID-19”.
Concluding, the Indian Express noted that the broad shoulders of the Supreme Court “need to widen, not shrink, to carry the weight of a nation’s expectations — especially when the critical voice becomes harder to hear”.
The Chennai-based The New Indian Express wrote that the judgement posed questions about the relevance of an archaic law and the general belief that the Supreme Court is the last resort of citizens seeking to guard the values of the constitution.
The editorial quoted Supreme Court Justice V.R. Krishna Iyer’s remarks in a 1977 case related to a publication in the Indian Express. “Personal protection of a libeled judge and obstruction of public justice and community’s confidence is a great process. The former is not contempt, the latter is, although overlapping spaces abound,” Iyer had propounded, as quoted by the newspaper.
The TNIE editorial noted that SC was not “an institution whose image can be lowered by a few tweets or comments by any individual, irrespective of their standing”.
It quoted the anecdote related to Tom Denning, one of UK’s most well-known judges in the 20th century. In his book, Lord Denning said that Labour politician and barrister Hartley Shawcross had criticised one of his judgments by stating, “Denning is an Ass”.
“The Times (of London) published it but Lord Denning, one of the best judges of the Commonwealth, declined to take contempt action because his view was that he should disprove it not by contempt proceedings but by means of performance. My Lords, we believe the same logic applies to Your Honour as well,” said the editorial.
There were no editorials published by other English language newspapers on the SC’s contempt order on Saturday.