A group of prominent citizens, including retired judges, former bureaucrats, lawyers and activists, has urged the Supreme Court to reconsider its decision to initiate suo motu contempt proceedings against lawyer Prashant Bhushan and to withdraw it at the earliest, in the interest of justice and fairness and to maintain the court’s dignity.
In a statement, they expressed concern over the initiation of contempt proceedings against Mr. Bhushan, in respect of two of his tweets.
“Mr. Bhushan has been a relentless crusader for the rights of the weakest sections of our society and has spent his career in pro bono legal service to those who do not have ready access to justice. He has fought cases at the Apex Court on issues ranging from environmental protection, human rights, civil liberties, corruption in high places and has been an outspoken champion for judicial accountability and reforms, especially in the higher judiciary,” it said.
The signatories said in the past few years, serious questions had been raised about the “reluctance of the Supreme Court to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights of people by the state”.
“These questions have been raised by all sections of society media, academics, civil society organisations, members of the legal fraternity and even by sitting and retired judges of the Supreme Court itself. Most recently, the Supreme Court’s reluctance to intervene in a timely manner to avert the migrant crisis during the lockdown came under intense public scrutiny,” said the statement.
It said concerns had also been raised regarding the court’s decision to not restart physical hearings, even in a limited manner, despite the passage of five months since the onset of the COVID-19 pandemic.
“We urge the Hon’ble judges of the Supreme Court to take note of these concerns and engage with the public in an open and transparent manner. The initiation of contempt proceedings against Mr. Bhushan, who had articulated some of these concerns in his tweets, appears to be an attempt at stifling such criticism, not just by Mr. Bhushan, but by all stakeholders in the Indian democratic and constitutional set-up,” they said, adding that they believed the institution must address these genuine concerns.
Public discussion
According to the statement, the Supreme Court must be open to public discussion without the fear of retribution or action of criminal contempt. “Indeed, criminal contempt as an offence has been circumscribed and made redundant in most functioning democracies, such as the USA and the UK,” it said.
The statement quoted a U.S. Supreme Court judgment in New York Times v. L.B. Sullivan 11 L’ed (2nd) 686, which held: “Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. This is true even though the utterance contains ‘half-truth’ and misinformation”.
Even in India, the statement said, the principle that criticism of the judiciary should not be stifled by indiscriminate use of the power of contempt has been recognised by the Supreme Court as well as by academics and advocates of repute.
Among those who have endorsed the statement are retired Supreme Court Judge Madan B. Lokur, retired Delhi High Court Chief Justice A.P. Shah and former Chief Information Commissioner Wajahat Habibullah.
