Not Just a Legal Colossus Like Bhushan, All Citizens Have Right to Criticise Judiciary

While speaking for the common man, we will have unwittingly created a situation where only a person of Prashant Bhushan's standing will have the right to criticise the courts.

There is euphoria in the air amongst those who attached great value with the freedom of speech and expression.

It is inspired by what can be called the ‘Prashant Bhushan moment’ in our nation’s democratic history.

Citizens feel that the Supreme Court was not able to justify its charge of criminal contempt against Bhushan.

There is a feeling that we are recalling with pride that ‘We, the People’ gave ourselves the constitution to establish the ‘rule of the people, by the people for the people’.

Let us pause for a while and look at the fundamentals beyond this epic battle. Some people call this a David versus Goliath battle.

I would respectfully disagree. Prashant is a David in the legal field who has established his stature and eminence through many battles in courts. His name is also well known across the country. He has raised the bar for freedom of speech.

But this may not translate directly into power for all citizens.

Many of us have rightly pointed out that the Court’s actions would have a chilling effect on citizens who voice their opinions on the unsatisfactory workings of courts.

Also read: Bhushan Contempt Case: SC’s Ruling Will Have a Chilling Effect Beyond India’s Borders

In many countries, the courts take criticism in their stride and rarely use criminal contempt powers. During 2016-17, the high courts and Supreme Court together instituted 169 cases. In the UK, there was only one prosecution in the last century relating to ‘scandalising the court’.

Section 2 (c) defines criminal contempt thus:

“(c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

It is interesting to note that the government of India made a reference to the Law Commission whether Section 2 (c) of the law of contempt should be restricted to only cover “wilful disobedience of directions/judgment of Court as Contempt of Court” in 2018. Unfortunately in its report number 274 it did not agree with this suggestion by stating:

“More so, curtailing the scope of contempt to only include ‘wilful disobedience of directions/judgment of Court’ seems undesirable because of the continuing need for deterrence against contemptuous elements. If the provisions are so narrowed in scope, there will be a reduction in impact. Such a change in the law of contempt could potentially lessen the respect for or fear of the courts and their authority and functioning; and, there is a possibility that this may lead to an undesired increase in the instances of deliberate denial and blasphemy of the courts.”

All dictionaries recognise that blasphemy is showing contempt of god or religion.

Let us now look at three sets of public servants as an example and test the principle of the respect and protection they need, to be able to discharge their duties for the citizens.

Also read: Prashant Bhushan 2020 Contempt: SC Reserves Judgment, Asks ‘What Is Wrong in Seeking Apology?’

Let us take the elected representatives, the police, and the judges to test this principle.

The elected representatives have the highest legitimacy because they subject themselves to a direct approval by the citizens every five years. It can be argued that they need to be able to command respect from the citizens, without which the laws they frame will not be respected. They frame policies, which have political and financial impact on the present as well as future generations. They must face people directly in every conceivable place and time, and if special privileges or protection against criticism is not given to them, they will not be able to discharge their functions.

Let us now picture a policeman who must enforce the law. He again faces citizens – even enraged or inflamed mobs – and must function amid all the dirt and grime to enforce the law. If citizens do not respect him – or believe he is corrupt and a criminal himself – can he discharge his law enforcement function to the public?

Also read: Prashant Bhushan Contempt Case: Why the Judges Should Be Guided by Their Past Judgments

On the other hand, a judge sits in a closed and protected environment and dispenses justice to supposedly uphold the law. He is in a very safe and secure environment and discharges his functions at his own pace comfortably sitting in a chair.

Yet it is argued that the lords need the warm protection of the provision of criminal contempt.

Citizens must use this great Prashant Bhushan moment to convince the government to disregard the Law Commission report and amend the law as per its reference to the Law Commission. If we miss this opportunity the ordinary citizen’s freedom of speech will be curbed.

While speaking for the common man, we will have unwittingly created a situation where only a legal colossus like Prashant Bhushan will have the right to criticise the judiciary. This would not be a fitting outcome of his brave and courageous stand for democracy. We must seize this moment to empower the citizen’s rights.

Shailesh Gandhi is former Central Information Commissioner.