Tag: prashant bhushan contempt of court

Draconian Laws, Trumped-Up Charges: In India, 2020 Was a Year of Crushing Dissent

The year, which kicked off with countrywide protests and riots in the capital, saw personal liberties take a big hit with anti-terror and defamation laws being used routinely to silence dissenters and human rights defenders.

Mumbai: Disproportionate application of draconian laws, divisive media reporting and jail terms for students and activists were some of the main highlights of 2020. Almost every month this year, several activists and academics have been either arrested or booked under counter-terrorism law, sedition and other laws, for merely expressing their discontent against the current dispensation.

There has been a clear pattern at play. In states where the Bhartiya Janata Party (BJP) is in power, the local police worked overtime profiling and targeting critical voices. In other states, central agencies like the National Investigations Agency (NIA) and the Enforcement Directorate (ED) and the Central Bureau of Investigation (CBI) were deployed.

On December 12, 2019, the Narendra Modi administration passed the discriminatory Citizenship (Amendment) Act. This was met with country-wide protests led primarily by university students and common citizens. The protests that began last December spilled over the most part of 2020. The communally charged atmosphere was further fanned, leading to an outbreak of full-fledged communal violence targeting the Muslims of North Delhi. At least 53 people, a majority of them Muslims, lost their lives in the deadly violence. Scores were severely injured.

Delhi riots

Security personnel walk past Bhagirathi Vihar area of the riot-affected northeast Delhi, February 26, 2020. Photo: PTI

The one-sided attack, with obvious evidence in the public domain, was overlooked, and the investigations instead focussed on academics, activists, and opposition leaders, with the Delhi police naming them as “prime suspects”. After FIRs, arrests followed and almost all who were arrested continue to be in jail. Since then, their personal liberty has remained at the judiciary’s mercy.

In November, The Wire published a long list of activists, student leaders, scholars and journalists who have continued to suffer prolonged incarceration and how their applications for bail or quashing of FIRs have been pending without hearing for long periods of time before different courts.

Year 2020 is not unique that way. This crackdown on human rights defenders began soon after the BJP came to power in 2014. In 2018, nine activists, academics and lawyers were arrested under trumped up charges and labelled ‘Urban Naxals’. By mid- 2020, the number increased to 16 and two prisoners – in their 80s – are among those incarcerated. The accusations have shifted from conspiring a riot at Bhima Koregaon village in the outskirts of Pune district to plotting to kill Modi to being the most dreaded “urban Naxals”. The trial, even over two years later, is yet to nowhere close to commencement.

Also read: The Dissenting and Defiant Citizen Is Indian of the Year

Identical patterns have been followed in the bulk arrests that have followed in Delhi, Uttar Pradesh, Kashmir and Assam. The charges have ranged from being “masterminds” of the Delhi riots to making “seditious” speeches during the anti-CAA protests. Most arrestees have multiple cases slapped against them, virtually making their release impossible. Writing critical or satirical tweets against the current dispensation have also landed several behind bars. Elderly citizens in need of sippers to drink water and pregnant women were not spared either.

It will be years before these charges are put on trial, but by then these activists would have spent years in jail – which is a primary purpose of such charges. After all, the process itself is designed to be a punishment.

There has been an evident growing trend in usage of draconian laws like the Unlawful Activities (Prevention) Act in the past few years. The National Crime Bureau Record (NCRB), which maintains the data of the nature of crime and the corresponding laws applied, has noted a whopping 165% rise in the number of UAPA cases since 2016. While 35 cases were registered under UAPA in 2016, it has dramatically risen to 93 in 2019. There is no consolidated data to find out the number of case files this year, but purely going by the trend around and the number of people arrested, the number of cases must have exponentially increased. The NCRB data does not tell how many of these cases are politically motivated and how many were registered for actual terror activities.

Globally, year 2020 will be known for how the novel coronavirus ravaged lives and economies. In India, however, the year would well be remembered for how personal liberties were trampled and anti-terror legislations like UAPA, that were crafted for “exceptional circumstances”, have been routinised.

Also read: Editorial: The Protests are Not Just Anti-CAA, But Pro-Constitution

Alongside counter-terrorism laws, defamation laws were more generously used against those criticising both the state and judiciary. Senior advocate Prashant was tried and held guilty for two of his tweets on the chief justice of India (CJI) S.A. Bobde. The CJI was photographed reportedly riding a Rs 50 lakh motorcycle belonging to a BJP leader in Nagpur without a mask or helmet.

Bhushan posted the picture, with the following text: “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!” Justice B.R. Gavai said that Bhushan committed “serious contempt of the court” and eventually fined him Re 1.

Similar criminal contempt proceedings were initiated against actor Swara Bhasker, and most recently comedian Kunal Kamra.

Permission for protests were virtually denied across states. While the spread of COVID-19 was cited as a reason for denial of permissions, the government was evidently afraid of the growing dissenting voices against it.

In October, following the rape and death of a young woman from Dalit community from Hathras in Uttar Pradesh, people were enraged and sought justice. At the forefront was Azad Samaj Party leader Chandrashekhar Azad, who along with 400 others was booked for violating Section 144 in the area. They were also accused of rioting and booked under the Epidemic Diseases Act.

It is not like the BJP alone discouraged dissent. In Maharashtra, where the Maha Vikas Aghadi government ousted the BJP and took over last November, similar pattern was followed. Young cultural activists were served externment notices and asked to pay up an unbelievable Rs 50 lakh as a surety sum. The Maharashtra government, however, following public outrage offered to close the extrernment proceedings against activists and students who had participated in protests through the year.

Attorney General Declines Consent to Initiate Contempt Proceedings Against Prashant Bhushan

The lawyer-activist tweeted about CJI S.A. Bobde’s visit to the Kanha national hospital in a helicopter, but later expressed regret over his insinuations.

New Delhi: Attorney general K.K. Venugopal staved off another controversy over attempts to restrain free speech when he declined to consent to the initiation of criminal contempt proceedings against Prashant Bhushan for his tweets in which he was critical of Chief Justice of India (CJI) S.A. Bobde being provided a special helicopter by the Madhya Pradesh government. Venugopal said that the activist-lawyer has already expressed regret for his comments.

On October 21, Bhushan, who had been held guilty of contempt earlier this year for tweets that were critical of the CJI, tweeted to say that the CJI used the special helicopter to visit the Kanha national park even while “an important case of disqualification of defecting MLAs of MP (Madhya Pradesh) is pending before him”.

“Survival of the MP govt depends on this case,” he added.

However, on November 4, he expressed his regret and said in a subsequent tweet, “Elections were held yesterday to seats of defecting Cong MLAs in MP who were made ministers in the Shivraj Govt. The survival of the Shivraj govt will depend on their re-election, not on the decision of the case in CJIs court challenging their ministership. I regret this error in my tweet below.”

Sunil Singh, an advocate, sought the AG’s consent to initiate contempt proceedings against Bhushan, saying that the lawyer-activist had connected “the personal life of CJI with a pending case before him”.

Hearing his appeal, Venugopal termed Bhushan’s tweet as “wholly unwarranted, improper, devoid of legal basis, and prima facie contumacious” but declined to give his consent for contempt proceedings considering the regret expressed in his later tweet.

“I am of the opinion that the imputations contained in three tweets to the effect that the Chief Justice of India committed an act of impropriety in accepting facilities of the state of Madhya Pradesh during his visit to Kanha National Park while a case pertaining to the disqualification of certain members of the legislative assembly of MP was pending before him were wholly unwarranted, improper, devoid of legal basis and prima facie contumacious…”, Venugopal said in his response to Sunil Singh’s plea.

Also Read: CJI Bobde’s Trip to Kanha: Is State Govt Hospitality Compatible With Judge’s Code of Conduct?

However, he added, “I do not think it would be in public interest to give consent for proceeding on the basis of the original tweet in view of the subsequent tweet expressing regret.”

Defending Justice Bobde, the AG said the CJI is one of the highest constitutional functionaries in the country and is entitled to receive special arrangements as befits the stature of his office. He is entitled to be extended appropriate security, Venugopal observed. He added that the CJI was visiting a Maoist-affected region, and that is why he was given the helicopter facility.

“It was therefore, the most prudent and appropriate measure for the state government to have the CJI transported via a helicopter. The imputation of impropriety therefore was improper and without application of mind to these realities and is contumacious,” Venugopal said.

The AG said that Bhushan’s attempt to link the CJI’s visit with the disqualification case against some Congress MLAs who had joined the BJP and were appointed as ministers in the Shivraj Singh Chouhan government “was also improper”. He said that the CJI is entitled to special benefits in any event, and even in this case “…the fate of MP government did not depend on the outcome of the said case, as the resignations of the said MLAs had already been accepted by the previous speaker.”

A bench headed by the CJI, on November 4, disposed of a plea that had raised the issue of pendency of disqualification proceedings against the Congress MLAs.

(With PTI Inputs)

Why Prashant Bhushan is Wrong to Oppose Reservation in the Higher Judiciary

The argument that it is the quality of the individual that matters, and not the caste, is flawed and myopic. The entire selection process for judges is entrenched in patriarchy and casteism. A collegium filled with upper-caste men will primarily select their own kind.

Prashant Bhushan is a truly remarkable person, someone many of us admire and respect for his sense of justice and dedication towards constitutional rights and democracy at large. Unfortunately, his position on reservation in the higher judiciary is problematic and needs to be addressed. In the midst of his regrettable prosecution for contempt of court, he said in an interview to the National Herald last month, and I quote,

“I’m not particularly in favour of reservations in the higher judiciary. I am certainly of the view all the relevant qualities in a judge need to be considered, including their sensitivity to caste discrimination, sexual discrimination in our society. Even to protect those very people you want to protect by reservation, it’s not necessary to have Dalit judges. If they are deserving, they would come through the normal course too. Higher judiciary is meant to protect the Constitution and rights. Therefore, it’s a place where you need the most appropriate people who can do the job with sensitivity. It’s not necessary that only a Dalit judge will be sensitive to Dalit issues. Justice Krishna Iyer was much more sensitive than Justice K.G. Balakrishnan.”

Even before I go into this debate, it is important that I reflect on my own tentativeness in addressing this issue, though I wanted to do so as soon as I saw the interview. I believe that it was my own caste privilege and a hidden sense of liberal loyalty that stopped me. Is the timing right, I wondered? I explained away my hesitation as respect to the individual and his living legacy. How much of these words are attached to our respective positions in social hierarchy, I do not know, but I am certain that somewhere below lurks the ugly notion of ‘common cause’. When someone like Prashant Bhushan argues against reservation in the higher judiciary, liberals who disagree must stand up. Otherwise there is no difference between the parochial mob and us. I failed.

The gruesome rape and murder of a Dalit woman in Hathras and the inhuman behaviour and connivance of the police and state government in the attempted cover up demonstrates that no institution is devoid of casteism; that casteism is rampant. The violence we witnessed and continue to see is the cumulative of the normalisation of various discriminative practices in every one of these institutions.  This is not the first time that we are witness to such barbaric community and institutional behaviour; unfortunately this may not be the last. If anything, it points to a truth: power remaining in the control of just a few groups of people negates or acutely limits the extent of fairness. For anyone to believe that somehow the higher judiciary is above this reality is either naïveté or unrecognised caste-blindness.

Also read: Reservation Is About Adequate Representation, Not Poverty Eradication

The argument that it is the quality of the individual that matters, and not the caste, is flawed and myopic. Will not a woman in the higher judiciary give the bench an important perspective? The most decent man is still not a woman, and hence would have never experienced misogyny and patriarchy. This still does not necessarily mean that the woman will be less patriarchal, but it will certainly enable a conversation that is normally beyond the grasp of a man. A male Supreme Court judge needs to continuously learn about sexuality and gender, and the presence of women and trans people as colleagues will make the institution that gives meaning to the Constitution far more embracing and progressive.  When it is truly representative of the people, it allows for the contestation of views. Greater representation leads to a balance in the power of the collective voice, empowering judges from marginalised communities to be more forceful in expressing their opinion.

It disturbs me that many upper-caste liberals who would make the above argument for women do not do so for minorities, Dalits and Adivasis. Let us also not forget that when we have more women on the bench, it allows many more girls to dream of that possibility. If we had many more Supreme Court Judges who are Dalits or Adivasis, the imagination of young people from those communities about what is possible expands. As a society, when we provide an environment that enables the marginalised to dream for the highest offices, equality blossoms.

Also read: When It Comes to Dalit and Tribal Rights, the Judiciary in India Just Does Not Get It

Even a judge with an impeccable record, who believes that he is dispassionate, can see things based only on his life experience. Hence the more socially privileged he is, the more limited his life experience. Therefore it is necessary that, in a democracy, we have people with different life experiences as part of the higher judiciary. The system must structurally compensate for social blinders. In Indian society, the trajectory of an individual is inextricably connected to his or her caste. Hence for Prashant Bhushan to imply that the caste of a judge is irrelevant is erroneous.

Let us also not forget that the entire selection process is entrenched in patriarchy and casteism. A collegium that is filled with upper-caste men will primarily select their own kind. Prashant Bhushan’s argument that the deserving will come through the normal course — that they will find their way to the Supreme Court if they are good enough — is dangerously close to the commonly held upper-caste argument of merit. It is no different from people with caste privilege saying that Dalits who are really talented will make it to the elite colleges; that they need no reservation.

What is this idea of ‘deserving’? Are we to just accept that judges, unlike all other human beings, are bias-less? We have to understand that words like ‘merit’ and ‘deserving’ are smokescreens that enable the powerful to keep control and maintain status quo. Only affirmative action can counter-balance the coloured lenses of our esteemed judges. We cannot make individual choices about when affirmation is less or more important. Such arbitrariness in thought only marks our discriminative nature. There will always be good judges and bad judges but we cannot have judges who are more or less social clones.

Also read: SC/ST Act: A Hostile Environment and an ‘Atrocious’ Interpretation

But, as others have pointed out, at the foundation of this lies the opaque collegium system. It functions under the whims and fancies of a select few, where caste and gender considerations are often arbitrary. Decisions are taken behind closed doors and unlike other state action, is not amenable to the demands of public transparency. Admittedly, affirmative action cannot be implemented under these conditions. Reservation in the higher judiciary will be transformational only if dovetailed with a transparent selection process; otherwise there is every chance that it might only entrench existing barriers.

What was also hurtful in Prashant Bhushan’s answer was his juxtaposition of Justice Krishna Iyer and Justice K.G. Balakrishnan to claim that a Brahmin man can be more sensitive to caste issues than a Dalit man. This is not only inappropriate but also a bad analogy. If we were to look at the track records of all the upper-caste judges and place them in front of Justice Krishna Iyer’s, most will fall far short. So what does this say about other upper-caste judges? We never ask this question, do we? Why are we not shocked that, in the past 70 years, the number of judges from the Dalit community in the Supreme Court is in the low single digits, that there has been none from an adivasi community, and that the number of women is still very low.

None of this will change unless we consider a policy of reservations. If someone argues that our courts have done pretty well, in spite of being dominated by upper caste men, I will argue that we would have done far better if we had had greater diversity in our judiciary. The courts are there not only to protect the marginalised; they are there to expand the contours of our understanding of the constitution. More Dalits, Adivasis, women, and queer judges would result in a cultured court.

We should keep in mind that our precious constitution is what it is because, at the helm of its creation, was a man who knew what it meant to be discriminated against.

T.M. Krishna is a musician, author and activist.

The Prashant Bhushan Contempt Case is About Power and Politics, Not Law

India’s public lacks confidence in all branches of government, including the judiciary, and that’s not a bad thing for the republic.

Last week, the Supreme Court of India pronounced senior advocate Prashant Bhushan guilty of contempt of court. In late June, Bhushan had joined a chorus of Twitter users in chiding the Chief Justice of India for posing astride a superbike. Around this time, he had also tweeted a lament about the ‘destruction of democracy’ in India during the reign of the present government.

In his view, the Supreme Court and the last four Chief Justices were culpable for this state of affairs.

Provoked, the Supreme Court took up the case ‘suo motu’ on July 22 and, in barely three weeks, handed down its guilty verdict. 

Over the past week, the decision has been met with an outpouring of critical commentary and street protest from civil society, members of the bar, former judges and academics. Possibly in response to this onslaught, or shaken by Bhushan’s moving invocation of Gandhi at his sentencing hearing, the Supreme Court has deferred announcing his punishment for three days. 

Virtually every element of the court’s decision has, by now, been incisively analysed. However, in this article, I approach the decision from the lens of political theory and suggest, firstly, that we need to read this decision as an instance of judicial ‘violence’ by the Supreme Court; and secondly, that, more than just legal reform, the path towards rehabilitation of the court may entail a broader recognition of the inherently ‘political’ nature of justice.

For roughly half the judgment’s length, the court wonders whether any statutory procedures could fetter its power to punish for contempt. Can, for instance, a law like the Contempt of Court Act 1971 regulate the manner in which contempt cases are brought before the SC? Would the SC be bound by the statutorily prescribed maximum punishment for contempt (currently six months imprisonment)? This was an important question to resolve since, in taking up Bhushan’s case, statutory procedure had not been strictly followed.

Also read: Supreme Court, Prashant Bhushan and the Sentence Conundrum

Unsurprisingly, the Supreme Court fails to discover any legitimate constraints over its contempt power. The court describes its power to punish for contempt as ‘inherent’, but the word it really wants to use is ‘absolute’. 

A view of the Supreme Court building
Photo: Reuters

Can the Supreme Court punish someone for contempt by hanging them, or ordering a public stoning? Although the court does not consider these questions pointedly, the logic of the Supreme Court’s decision, issued on independence-eve, suggests that not even the fundamental rights of citizens would so constrain the Supreme Court. They simply do not register as relevant considerations.

What follows in the second half of the decision, is a tedious precis of every major decision by the Supreme Court on its contempt ‘power’. We learn that the Supreme Court has an unfaltering record of justifying the exercise of its contempt jurisdiction. On every occasion it has punished someone for contempt, it has self-certified its actions as impartial, and calculated to restore ‘public confidence’ in the judiciary. Carefully conforming to this tradition, the court pronounced Bhushan guilty in this case.

Leaving aside the many defects in the court’s legal reasoning, I would like to focus analysis on two rhetorical features of the court’s decision.

‘Violence’ under the guise of exercising ‘power’

Firstly, the decision is constructed as a search and discovery of the court’s ‘power’ to punish for its contempt. I would like to suggest, however, that the word ‘power’ does not accurately describe what the court discovered. When courts sentence convicts to imprisonment or even death, we do not customarily describe this, in criminal terms, as a ‘kidnapping’ or a ‘murder’. What distinguishes the court’s action in these cases is a fiction that it is not acting individually, but representatively on behalf of the community. In Bhushan’s case, however, I think grounds exist to withdraw this fiction.

In the name of exercising judicial ‘power’, it would appear that the Supreme Court has armed itself with the license to judicial violence. 

In her celebrated monograph On Violence, the philosopher Hannah Arendt usefully distinguishes ‘violence’ from ‘power’. There are three features of her account of violence that, I find, easily attach to what the Supreme Court calls its contempt ‘power’.  Firstly, for Arendt, while power seeks ‘legitimation’ from the founding decisions of a community, violence seeks ‘justification’ from an end that lies in the future. Tellingly, she notes, “Violence can be justifiable, but it never will be legitimate”. In our present context, it bears reflection whether in the name of seeking legitimation for its actions, the Supreme Court is really justifying itself by citing the abstract need to secure ‘public confidence’ in the judiciary.

Secondly, in Arendt, “Violence appears where power is in jeopardy”. It is what regimes have to resort to when they become insecure about their legitimacy. Lurking beneath the court’s reasoning last week, in the way it skirts Bhushan’s voluminous charges, might we not read a tacit acknowledgement that it is really quite a ‘power’less institution? That public confidence in it is at such a low-ebb that only spectacular violence of this kind can secure its foothold?

Lastly, in Arendt’s conception, violence is essentially arbitrary and for this reason, it has seldom been theorised. When a hyena mauls a fawn, one can react with horror, disgust, or anger, but it is pointless to analyse this violence. There are no principles it observes. One might say the same of the arbitrary and absolute contempt jurisdiction that the Supreme Court has articulated in this case. Much of the response to the decision has, consequently, taken the form of anger and disappointment.

That public confidence in it is at such a low-ebb that only spectacular violence of this kind can secure its foothold? Photo: Wikimedia Commons

The discourse of judicial exceptionalism

Let me turn to a second important rhetorical feature of this decision. Contempt cases are possibly the most pleasurable forms of adjudication that the Supreme Court indulges in. In each case of this kind, behind the sombre facade of having to determine a contemnor’s guilt, the court really gifts itself an occasion to unabashedly and publicly adore itself.

Thus the Supreme Court announces, in this judgment, that it is an institution engaged in the business of ‘upholding the majesty of the law’, of ‘delivering fearless and impartial justice’, that it is the ‘guardian of the rule of law’, and that it is not just “any pillar”, but the ‘central pillar’ of the democratic state. It is the ‘overseer’ of the executive and the legislature and is responsible to ensure that they act within the framework of the constitution.

It would be vain to try to dispute any of these convictions. Instead, I would like to direct attention to a troubling suggestion – that the immense institutional narcissism that these statements evince is affirmed continuously by extrinsic sources. Specifically, this narcissism is nourished by a scholarly, journalistic, literary and cinematic discourse of ‘judicial exceptionalism’. At least since independence, but possibly even longer, we have trafficked in a particular discourse about the Supreme Court that anoints it as exceptional – both in the activity in which it engages and its relation to other institutions. It is the invisible hand of this discourse, along with the judge’s pens, that convicts Bhushan.

Lawyer Prashant Bhushan. In the background is the Supreme Court.

Let me list merely three features of this discourse, and the role they have played in convicting Bhushan. Alongside, I offer a few feeble suggestions for discursive amendments that we need to undertake. Absurdly, this seems more attainable than legal reform. 

Firstly, it has been an effect of this discourse that we think of justice as the exclusive province of the judiciary. The executive may deliver services and parliament may pass laws, but we get ‘justice’ solely from the judiciary. Only when one begins with such an exclusionary conception of the site of ‘justice’, could it follow that criticism of the judiciary equates to an attack on the ‘majesty of justice’.

Also read: All the Times the Supreme Court Turned a Nelson’s Eye to Injustice

When we criticise politicians or bureaucrats, by contrast, ‘the majesty of justice’ does not seem to be imperilled. As a countermeasure, I think it is very important that we discursively redistribute the ‘justice function’ more equally among the executive and legislature. Justice must be depicted as the default activity that every organ of the government is charged with doing, and we ought to have the license to rebuke them for their failure in doing so. This is not to be read, however, as implying that the executive and legislature should be allowed to punish for their contempt. 

Secondly, it has been an effect of this discourse that we think of the activity of justice as something that stands apart from and above the messy business of politics. What politicians do is regarded as inherently partisan and in need of overseeing by the judiciary. It is only when one starts with such an impossibly pristine expectation for ‘justice’, that insinuations of political collaboration, such as those made by Bhushan, would ‘diminish the dignity’ of the judiciary. To rival this conception, we may need to popularise an insight, arrived at by the patient work of a generation of critical legal scholars and feminist theorists, that ‘justice’ is inherently and always ‘political’ – even in its best moments, and whether delivered by the judiciary, the executive or parliament.

Also read: Here’s What the AG Wanted to Say About the Judiciary, Before Justice Arun Mishra Stopped Him

In the context of Bhushan’s case, the advantage of acknowledging the judiciary’s political existence is that it would enable us to re-conceive criticism directed against the institution as political dissent, rather than contempt. Constitutionally, political dissent has always enjoyed a longer leash than contempt. Once again, this ought not to normalise an easy relationship between judges and politicians. But it ought not to occasion punishable ‘scandal’ when politicians and judges are spoken about as collaborators.

Lastly, one effect of this discourse is that it constructs the judiciary as the sole institution that the public can really turn to for relief with ‘confidence’. It is commonplace, for instance, within legal scholarship to flatter the Supreme Court as a ‘people’s court’. If parliaments are appointed by public election, this discourse implies that the judiciary in India is no less elected by ‘public confidence’.

If parliaments are appointed by public election, this discourse implies that the judiciary in India is no less elected by ‘public confidence’. Photo: Flickr/public domain

Little surprise then, that the court regards any attempts at ‘shaking’ this confidence as insurrectionary. Against this notion, let me suggest that we need to normalise the notion that the Indian public permanently ‘lacks confidence’ not just in the judiciary, but in any institution. That this suspicion is primordial, and has its roots in our struggles against colonial power. And that far from being a threat to our democracy, this suspicion might, in fact, serve as a source of vitality for our post-colonial republic. Other publics in other countries may be lulled into professing ‘confidence’ in their institutions, but our historical experience has schooled us to never be so naive.

Within a milieu of such institutional hostility, Bhushan’s tweets could never truly ‘shake’ the confidence of the Indian public – it was already and irretrievably ‘shooken’ from the start and has never really stopped.

Can a republic, much less a judiciary, survive when the ‘foundations of its edifice’ are ‘eroded’? This is an anxiety that appears to nag the court. They needn’t fear, though. As a stroll through any Indian slum would tell us, life continues obstinately even amidst ruins. It has no alternate existential modality.

Prashant Iyengar is a doctoral candidate at the Department of Middle Eastern, South Asian and African Studies at Columbia University, New York.

Supreme Court, Prashant Bhushan and the Sentence Conundrum

How is a convicted contemnor to properly address himself on the sentence without knowing what it is?

As any criminal lawyer will tell you, Section 235 of our Criminal Procedure Code mandates that after conviction, the accused must be heard on the question of sentence.

This hearing, the Supreme Court said in 2019, must be a “real, effective and meaningful opportunity to bring on record materials showing mitigating circumstances”. All convicts across the Republic are therefore given such a statutory right to demonstrate evidence to distance themselves from harsh penalties.

Consider the most commonly bandied about punishment that we are exposed to courtesy Hindi cinema – dafa teen sau do – hearing which the heroine breaks down crying in the first row while the villain at the back overacts to show how truly evil he is.

Section 302 of the Indian Penal Code offers two unpalatable options – death, or imprisonment for life. It also threatens an accompanying fine, which we can all agree is somewhat insulting. Now when the convict’s lawyer gets up to argue, he has a clear idea of what he must do: avoid the noose. So, he presents his client as virtuous, young, reformed, family-oriented, kind to animals and so on, hoping that the court might consider deprivation from society rather than from the world.

Also read: ‘Have Right to File Review Petition’: Prashant Bhushan Seeks Deferment of SC Sentence Hearing

In all of this, what the convict, the prosecution and the court are aware of is the likely sentence. Because it is in the book. So, there is no difficulty in addressing arguments on sentence.

The first specific flaw: The types of punishments

However, when it comes to a determination of criminal contempt by the Supreme Court, the pitch is decidedly queer.

Take Prashant Bhushan for instance, who stands convicted last week of criminal contempt. He would imagine that the sentence would be the one prescribed by Section 12 of the Contempt of Courts Act – simple imprisonment up to six months and/or a fine of up to Rs 2,000.

But hark, what have we here? Bhushan is a practising advocate. Of the Supreme Court.

What difference should that make, you say. He is a contemnor in the eyes of the law, and whether he is a telecom operator or a hairdresser should make no difference.

Unfortunately, the Supreme Court itself has taken a different view when it comes to us advocates. In December 2002, the Constitution Bench handed down a verdict in Harish Uppal v. Union of India where it frowned on lawyers’ strikes and then proceeded to conclude that under Article 145, the Supreme Court alone can regulate the practise of advocates before it. From the pen of Justice Variava speaking for the Bench, the following words flowed:

“Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts…The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts.”

Two things transpired after this judgement.

First, after 50 years of being in limbo, Section 30 of the Advocates Act was notified in June 2011, thereby allowing all advocates to practise as of right before the Supreme Court.

Second, despite no rules as envisaged by the 2002 judgement being framed, the Supreme Court has at least once forbidden a lawyer who has been convicted of criminal contempt from practising before it.

Also read: US Democracy Survives Even When POTUS Attacks SCOTUS But India Can’t Handle Prashant Bhushan

On March 27, 2019, one Mathews Nedumpara was barred for a period of one year, thereby adding a third type of punishment to the ones already stipulated in Section 12. This punishment would be squarely in the teeth of the legal right afforded by Section 30 of the Advocates Act.   

The second specific flaw: The inherent inconsistency

It would be fruitful to recall the view of another Constitution Bench from 1998 in the Supreme Court Bar Association case. There, on a plea by the members of the Bar, the apex court corrected its earlier view that it could strike contemptuous lawyers from the rolls of the Bar Council, by saying:

“Suspending the licence to practise of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not a recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose on a contemnor in addition to any of the other recognised punishments.”

How then can members of the Bar be barred from their practise in exercise of the summary contempt power?

Such an endeavour would pit the fundamental right under Article 19(1)(g) directly against the exercise of contempt jurisdiction under Article 129 of the constitution. In fact, there is another piece of advice that the court gave itself:

“As already noticed, Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemnor by virtue of the provisions of Article 129 read with Article 142(2). Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court.”

If the “nature of punishment” were to be a guide for the Supreme Court, then could the court probably ignore its own counsel (not to mention Parliamentary law and the Constitution) and evolve other means of sanction?     

Also read: Truth as Defence is Central to Prashant Bhushan Sentencing, Supreme Court Can’t Sidestep It

The consequence: One confused contemnor

So, what is a convicted contemnor to do? How does he know what the proposed sentence is against which he can proffer arguments?

It could be the two options in the 1971 Act, or it could have in addition anything else that catches a judge’s fancy as appropriate to curb the delinquent’s misadventures. In Bhushan’s case, this could range from directing Twitter to close his account to depriving him of mobile devices for a year and even barring him from practice a la Nedumpara.

The Supreme Court’s inconsistent approach to criminal contempt now raises serious questions of natural justice: how is a convicted contemnor to properly address himself on the sentence without knowing what it is?

Notwithstanding Bhushan’s own position on the proceedings, the Supreme Court owes itself an obligation to ensure that justice is seen to be done.

Gopal Sankaranarayanan is senior advocate, Supreme Court of India.

‘Affirm Right to Express Dissent,’ Say Eminent Citizens on Eve of Prashant Bhushan’s Sentencing

Among signatories are academic Suhas Palshikar, sociologist Indra Munshi, economists Jayati Ghosh and Nilakanth Rath, legal expert Jaya Sagade, and filmmaker Anand Patwardhan.

New Delhi: Nearly one hundred eminent citizens from all walks of life have released a short statement of disappointment with the Supreme Court, over its verdict in the Prashant Bhushan contempt case.

The apex court on August 14 found the lawyer and human rights activist guilty of contempt of court over two tweets.

Among signatories are academic Suhas Palshikar, sociologist Indra Munshi, economists Jayati Ghosh and Nilakanth Rath, legal expert Jaya Sagade, and filmmaker Anand Patwardhan.

Simply worded, the statement runs thus:

On 14th August 2020, a three-judge Bench of the Supreme Court found civil rights lawyer Prashant Bhushan guilty of criminal contempt by ‘scandalising the court’.

We deeply regret the judgement of the Supreme Court of India in the contempt case against Adv. Prashant Bhushan. We affirm our right to criticise and express our dissent with any action or inaction of the Supreme Court when necessary.

The statement follows in the path of several outpourings of solidarity with Bhushan. More than 3,000 people, including 12 former judges, have signed statements extending support to Bhushan, in the aftermath of the Supreme Court’s verdict.

The full list of signatories is as follows:

1

 Amnadwi Secretary of Minority Rights Watch

2

 Anand Patwardhan Filmmaker

3

 DR MD Aftab Alam Assistant professor

4

 G.G.Parikh Freedom fighter, Janata weekly, Yusuf Meherally Centre 

5

 Hiren Gandhi Managing trustee

6

 Hiren Gohain Retired university professor

7

 Irfan Engineer Member

8

 Jayati Ghosh Professor

9

 Jennifer Mirza Retired film /TV producer

10

 LS SHASHIDHARA Professor

11

 Ms Indra Munshi Former Professor and Head, Department of Sociology, University of Mumbai

12

 P K Sinha Retired Professor of Economics

13

 Pramathanath Sastry Professor

14

 Prof Zenab Banu Professor (retired)

15

 Rajeshwari Deshpande teacher/ researcher

16

 Rammanohar Reddy Editor, The India Forum

17

 Rita Anand Editor, Civil Society magazine 

18

 Sandeep Pandey Vice President at Habitat an Livelihood Welfare Association

19

 Shweta Damle Director

20

 Suhas Palshikar Retired professor

21

 Vijaya Chauhan Member and trusty at Narmada Nav Nirman Abhiyan, Sadhana Trust

22

 Vijayasingh Ronald David Secretary

23

 Vinod Mubayi Co-editor

24

 Xavier Jeyaraj Human Rights activist and a Lawyer

25

 Jagmohan Singh General secretary, Association for Democratic RIghts 

26

 Jaya Sagade Retired Vice Principal

27

 Lancy Lobo Scholar

28

 Dr. Lawrence Prabhakar Williams Professor

29

 Achyut Das Director Programme

30

 Afreen Khan Lawyer

31

 Anil –

32

 Anil Pradhan Social Worker

33

 Anjali Kanitkar Retired Professor

34

 Arunima Research fellow,MU

35

 Ashok Das Director

36

 Ashwin  Gambhir –

37

 Aurnab Ghose Academic

38

 Biraj Mehta Lecturer

39

 Bolan Gangopadhyay Freelance journalist

40

 Bunny Cardoz Housewife and nurse

41

 chandan shukla Social Worker

42

 D. Albert Missionary

43

 Debendra Kumar Dash Retired reader in Odia

44

 Denzil Fernandes Executive Director

45

 Devasagayaraj M Zackarias Former National secretary CBCI Office for SC/BC

46

 Fazal mohamad Pensioner

47

 Fr. Errol Fernandes SJ Priest/Lecturer

48

 Frazer Mascarenhas Academic administrator

49

 George Retired Professor

50

 Girish Kuber Editor

51

 Gokul Patnaik I.A.S. (retired)

52

 Hasan Abdullah Writer

53

 Hiren Gohain Retired professor.

54

 Ishwarbhai Prajapati Retired scientist

55

 Issac Arul Selva Journalist

56

 Jayashree Ramadas Professor

57

 Mahesh Gajera as a citizen

58

 Manohar Bhide Pensioner

59

 Mohd Aasif Reporter

60

 Mrunmayee Creative

61

 Mutharasan Student

62

 nandini Nimbkar President

63

 NILAKANTHA RATH Professor

64

 Nisar Ahmad Executive Director

65

 Nitin Nitsure Mathematician

66

 Nitin Rai Academic

67

 Pascal Tirkey Freelance

68

 Pervin Jehangir Self

69

 Praveer Chakravorty CEO

70

 Pritish acharya Teacher

71

 Radhakrishnan Professor

72

 Rahim contractor Architect

73

 Reny Rajan Social Worker

74

 Rupa Rege Nitsure Economist

75

 Shamsul Islam Former faculty DU

76

 Satyajit Rath Scientist

77

 Sharmishtha Kuber Banker, retired

78

 Stanley Fernandez Common Citizen

79

 Subodh Bedre Entrepreneur &  Social Worker

80

 Sudhir Pandit Retired IT manager and Educator

81

 Syed Zakria Sultan Student

82

 T.R. Ramadas Professor

83

 Uma V Chandru WSS member

84

 Valerie Retired teacher

85

 Varsha Chanda Consultant

86

 Vijayalakshmi Pandit Educator

87

 Vinayak Pandit Retired

88

 Vineeta Bal Scientist

The Supreme Court Must Not Be in Contempt of its Noble Position in the Constitution of India

After reining in the wayward, venal ways of the UPA-II government, the court has, in the past six years, spectacularly failed to judicially restrain a rampaging majoritarian government.

Guiding, nurturing and developing Indian democracy has been the Supreme Court’s true metier.

While quantifying lawyer Prashant Bhushan’s sentence for contempt of court on Thursday, the top court must remember its constitutional imperative and its unique role in shaping the destiny of this nation.

It was with trembling hands that Justice S.H. Kapadia, as CJI, read the order annulling the appointment of P.V. Thomas as chief vigilance commissioner, on March 11, 2011. He knew the political significance of his judgment. By fashioning out the doctrine of institutional integrity and striking down the Manmohan Singh’s government’s seemingly legal choice, the apex court’s order indirectly questioned the rectitude of Singh who, until then, had the standing of an honest prime minister.

Also read: Contempt Case: Prashant Bhushan Seeks Deferment of SC Sentence Hearing

From that moment onward, the Supreme Court became the keeper of integrity and the public interest, while the government an inveterate violator, which had to be chastened, castigated, watched over by judges  at every step of the way.

Justice Kapadia’s order was only the first in a series of judicial admonishments that came raining down on the Manmohan Singh government. The apex court decisions – especially the order on cancellation of 2G and then coal licenses – stripped the UPA of its political legitimacy. The top court not only canceled the 2G licenses, it also dictated the new telecom policy when it asked the government to auction all the telecom spectrum henceforth.

Some may argue that the court went overboard, even stepped into the province of the executive. Be that as it may, the apex court by its constant invigilation reined in a venal, wayward UPA II. But since 2014 the same court has spectacularly failed to judicially restrain a rampaging majoritarian government. The habeas corpus petitions filed by the political detainees of Kashmir, the challenge to the Citizenship (Amendment) Act and electoral bonds, the petition challenging the revocation of Article 370 of the constitution have all been all lying in the dockets of the top court, waiting with a fading hope for their judicial assessment.

Also read: Kashmir 2020: Rumoured Resolution Is Greatly Exaggerated

The Supreme Court that applied the principle of institutional integrity to an IAS officer while revoking his appointment on the mere ground that his name figuring as accused Number 8 in a 20-year-old chargesheet, refused to order a probe in the Sahara-Birla diaries in which the name of the top political functionaries figured as the beneficiaries of illicit monetary transfers. The court also dismissed the petition asking for a probe into the mysterious death of Judge B.H. Loya who was presiding over the Sohrabuddin-Kausar Bi-Tulsiram Prajapati extrajudicial killings in which the present home minister happened to be a key accused.

More problematically, the top court watched silently even as the criminal cases in fake encounters whose investigation the court itself had supervised over many years collapsed at the very threshold, at the stage of framing of charges itself.

The top court has both saved and failed India in the seventy years of its existence. Without the top court’s rulings on basic structure doctrine, its purposive reading of fundamental rights and its strict judicial review of scores of illicit executive actions and invalid laws passed by legislatures, India would have been a different country. The top court has played the role of sentinel of Indian democracy on multiple occasions.

But the court has also failed this nation at some of its darkest moments. The era of the Emergency was one such juncture when many judges of the top court betrayed the soul of the Indian constitution.

In the 70 years of its brief existence, the court for the second time is confronted by an authoritarian government which believes in a committed bureaucracy, a packed judiciary and a supine press. In the last six years the court has failed to staunch this rot. Its orders on the petitions asking for a probe in the Rafale deal, the PIL seeking humanitarian measures to help the migrant workers, the petition demanding the transfer of funds from the opaque PM CARES Fund to the audited National Disaster Relief Fund (NDRF), are problematic not only for their infirm judicial reasoning but also the obsequious tone and unctuous language in which they have been worded.

Also read: Would Narendra Modi Please Care to Answer Some Questions About PM-CARES?

On Thursday, as the Justice Arun Mishra-led bench convenes to pronounce its sentence, the court must ask itself: Having invented the principle of institutional integrity, has the court applied it uniformly to cases across political dispensations? Has there been judicial consistency in the functioning of the top court? Has the top court itself displayed transparency and public accountability in its functioning that it had in the past demanded of other institutions?

The court must also reflect on the recent events in its own sanctum sanctorum. The unprecedented 2018 press conference by the four senior most judges after the CJI questioned the manner in which cases in which the executive had high stakes were assigned and the way the CJI mastered the roster.

The way the court handled the Prasad Education Trust case and the constant blocking by the executive of some of the names of the judges recommended by the collegium are the other most egregious examples when the court’s standing was called into question from within the institution. The court must remember that these and more questions will be probed and reckoned with by history. And if they are not adequately addressed, the glorious institution of the Supreme Court of India may itself stand in contempt of its noble position in the constitution of India.

Watch | Bhushan’s Contempt Conviction Shows SC’s Insecurity Borders on Paranoia: Arun Shourie

“How can a puff of two tweets shake the central pillar of the largest democracy in the world?” Arun Shourie asks Karan Thapar.

In strong and outspoken criticism of the Supreme Court’s conviction of Prashant Bhushan for contempt, Arun Shourie has said the apex court’s hypersensitivity to Bhushan’s tweets “betrays a nervousness and anxiety … an insecurity bordering on paranoia”.

In its 108 page judgement, the Supreme Court claims that if no action is taken against Bhushan for his 2 tweets “it may affect the national honour and prestige in the comity of nations”. How can two tweets do this, Arun Shourie asked.

“If a puff of two tweets can shake the central pillar of the largest democracy in the world”, he added, that reveals the judiciary’s own view of how weak it has become.

In a 40-minute interview to Karan Thapar for The Wire, Arun Shourie said that he had no doubt judges have assisted in the erosion of democracy. In fact, he went further and said they were guilty of assisting in an assault on democracy. “I say this as a person who knows Modi better than the judges. Democracy has been eroded. Have they assisted in it? … they should look at the mirror and ask themselves that question.”

Shourie said Prashant Bhushan’s tweet alleging the Supreme Court and the last four chief justices have played a particular role in destroying democracy “is an understatement”. He said the Court “has assisted in an assault on democracy”, not just in an erosion of it.

Asked if he was worried that since Bhushan’s tweet alleging the Supreme Court and the last four chief justices have played a particular role destroying democracy is considered contempt this could mean his charge that Supreme Court judges have assisted in an assault on democracy might also be considered contempt, Arun Shourie said he was not worried. He acknowledged the possibility that someone could view it as contempt but was unconcerned by that.

Also read: Contempt Case: Prashant Bhushan to File Review Petition, Seeks Deferment of SC Sentence Hearing

Arun Shourie named a series of former judges who have publicly criticised the functioning of the Supreme Court and yet their comments have not been considered contemptuous. He named Justices Lokur, Shah, Joseph and Lodha. The point he was making is simple: Prashant Bhushan has been picked upon by the court.

Shourie told The Wire that judges need “a sense of proportion”. He cited the 1969 judgement of Lord Denning, then Master of the Rolls in Britain, to show how judges should respond to even the harshest criticism. He said our Supreme Court judges “need more confidence in themselves”.

Speaking about Prashant Bhushan’s tweet regarding a photograph of Chief Justice S. A. Bobde sitting astride a Harley Davidson bike, Arun Shourie said: “Please don’t sit on mobikes costing 50 lakhs when you cannot afford it.” He seemed to suggest the Indian people could form an opinion of judges, the court and its propriety by such photographs.

He added: “When you hold a public office there is no difference between your private life and your public life”. As he put it, “You are a house on a hill”.

Screenshot of Prashant Bhushan’s tweet of June 29, 2020.

Speaking about the Supreme Court’s objection to Prashant Bhushan’s use of the word ‘lockdown’ in his tweet about Chief Justice Bobde, which the Court believes is “patently false” because it’s still functioning virtually, Arun Shourie told The Wire the Court has “completely misread the word”. He said there is a difference between lockdown and shut down.

Shourie said it was impossible to believe that Bhushan, by using the word lockdown, was suggesting the court was not working at all. As he put it: “They (the judges) cannot even imagine that anyone who has appeared before the court would be so forgetful that the court is functioning.”

In the interview, Shourie also said judges need to be clear about what is abuse. Quoting Mahatma Gandhi he said the wrong use of a word is abuse but if you describe a thief as a thief it’s not abuse. It’s a factual description.

Concluding his argument, Shourie said: “The judgement brings out not Prashant’s view of this central pillar but the view of the judges – that this central pillar is now so hollowed out, it’s so fragile that a mere puff of two tweets can put it in jeopardy.”

Referring to what he called “the epileptic orders of the court”, Shourie said the court has failed to make three critical distinctions in the Prashant Bhushan case.

First, it failed to distinguish between criticism and analysis.

Second, it’s shown an indefensible sense of prioritisation by choosing the Bhushan matter before constitutional issues such as the major changes in Kashmir or the Citizenship Amendment Act.

Third, the court has revealed its own insecurity rather than make out a case of contempt against Bhushan.

Arun Shourie said the Supreme Court has “shut its eyes to the manifest lies the government has told them”, particularly with regard to Saifuddin Soz’s detention.

He added that judges are “carried away by their hyperbolic grandiloquence from incomprehensibility to incoherence”.

The above is a paraphrased precis of Arun Shourie’s interview to Karan Thapar for The Wire. Please see the full interview for accurate details.

‘Have Right to File Review Petition’: Prashant Bhushan Seeks Deferment of SC Sentence Hearing

Bhushan’s plea notes that as the Supreme Court acts as the “court of first instance” in suo motu cases, there is no option to appeal against its judgment other than to file a review. 

New Delhi: Asserting his right to file a review petition, advocate Prashant Bhushan has filed an application before the Supreme Court seeking deferment of the sentence hearing in his contempt case. The hearing is scheduled to take place tomorrow, August 20.

A Supreme Court bench headed by Justice Arun Mishra and comprising Justices B.R. Gavai and Krishna Murari, had, on August 14, held Bhushan guilty of contempt of court for two tweets.

According to a copy of his application, published by LiveLaw and filed by advocate Kamini Jaiswal, Bhushan has undertaken to file the review within 30 days of the verdict. Even if the sentencing is not deferred, Bhushan application requests for a stay on the sentence till the review is decided.

Bhushan’s application notes that in the case of suo motu proceedings – the contempt case was taken up suo motu by the court after a complaint filed by lawyer Mahek Maheshwari – the Supreme Court acts as the “court of first instance” and there is thus no option to appeal against its judgment other than to file a review.

Also read: Justice Kurian Joseph, Former SC Judge, Questions Mishra Bench Handling of Contempt Questions

The application mentions that in criminal contempt proceedings, the Supreme Court, functions both as a trial court and also as the last court.

“Section 19(1) gives a statutory right of appeal to a person found guilty of contempt by the High Court. The fact that there is no appeal against an order of this Hon’ble Court makes it doubly necessary that it takes the utmost precaution to ensure that justice is not only done but seen to be done…,” noted the application, as quoted by LiveLaw.

Recourse to appeal, the application says, would be in consonance with “the right guaranteed under Article 21 of the Constitution of India,” which guarantees protection of life and personal liberty, and equality before the law.

Retired Supreme Court judge Justice Kurian Joseph in a statement questioning how the three-judge bench of the Supreme Court handled questions on contempt of court, had also raised the right to appeal.

“Under Section 19 of the Contempt of Courts Act, 1971, an intra-court appeal is provided where the order is passed by the single Judge of the High Court and in case it is by the Division Bench, appeal lies to the Supreme Court of India. This safeguard is provided probably to avoid even the remotest possibility of miscarriage of justice.

“Should there not be such a safeguard in the other Constitutional Court, the Supreme Court of India also, when there is a conviction in a suo-motu criminal contempt case?”

More than 3,000 people, including 12 former judges, have signed statements extending solidarity and support to Bhushan, in the aftermath of the Supreme Court’s verdict.

Ex SC/HC Judges Lead Support by 3,000 Eminent Persons for Prashant Bhushan

At least 12 former judges have signed a statement which extends solidarity to Bhushan and says that the tweets in question were a bona fide expression of concern regarding the functioning of the top court.

New Delhi: More than 3,000 people, including 12 former judges, have signed a statement extending solidarity and support to senior advocate Prashant Bhushan, who was recently found guilty of contempt of court by the Supreme Court for two tweets.

The signatories said that the tweets were a bona fide expression of concern regarding the functioning of the Supreme Court, which they said is the fundamental right of every citizen. “The intention of that expression was to urge the apex court to restart physical hearings, particularly of matters of national importance. The intention was also to engage with the concerns articulated by many regarding the reluctance of the judiciary to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights by the state,” they said.

Such criticism, especially by a senior member of the bar, must be considered by the judiciary as an opportunity to introspect and strengthen the institution, the statement says.

“To hold that such criticism shakes the foundations of the judiciary and needs to be dealt with an iron hand, appears to be a disproportionate response which could, in fact, diminish the reputation of the Court,” they added.

They noted that former Chief Justice Bharucha said that the court should have broad shoulders to ignore such criticism even if it thinks it is unfair and unwarranted.

“Every institution in a democracy has to earn the public’s affection and respect, and the hallmark of a strong institution is its openness to public scrutiny and commentary. The judgment will have a chilling effect on people expressing critical views on the functioning of the judiciary. Stifling of criticism by stakeholders does not bode well for any institution, especially the highest court in the country.” the statement concludes.

The statement, along with the full list of signatories, has been reproduced below.

§

Statement relating to the judgment against Prashant Bhushan in the contempt of court matter

August 17, 2020

We, the undersigned citizens of the country, express anguish and disappointment at the verdict of the Hon’ble Supreme Court finding human rights activist and advocate, Prashant Bhushan, guilty of contempt of court in respect of two tweets. We reiterate our solidarity and support for Prashant Bhushan at this conviction, which we believe is not appropriate.

The tweets were a bona fide expression of concern regarding the functioning of the Supreme Court, which is the fundamental right of every citizen. The intention of that expression was to urge the apex court to restart physical hearings, particularly of matters of national importance. The intention was also to engage with the concerns articulated by many regarding the reluctance of the judiciary to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights by the state.

Such criticism, however fiercely expressed, is in fact a plea to the system to engage with these public concerns. Bona fide criticism, especially by a senior member of the bar, must be taken in the spirit in which it is made – to introspect and thereby strengthen the institution of the judiciary. To hold that such criticism shakes the foundations of the judiciary and needs to be dealt with an iron hand, appears to be a disproportionate response which could, in fact, diminish the reputation of the Court . If a tweet by an individual is perceived by the judiciary as destroying public confidence in the institution, it speaks poorly of the judiciary’s confidence in itself. As former Chief Justice Bharucha has said, the court should have broad shoulders to ignore such criticism even if it thinks it is unfair and unwarranted. Further, the undue haste with which the matter has been dealt with via virtual hearing amid the pandemic is extremely concerning and has, in fact, been questioned by former Chief Justice Lodha.

Every institution in a democracy has to earn the public’s affection and respect, and the hallmark of a strong institution is its openness to public scrutiny and commentary. The judgment will have a chilling effect on people expressing critical views on the functioning of the judiciary. Stifling of criticism by stakeholders does not bode well for any institution, especially the highest court in the country.

Signed by more than 3000 people including:
1. Justice Ruma Pal, former Judge, Supreme Court of India
2. Justice B Sudershan Reddy, former Judge, Supreme Court of India
3. Justice GS Singhvi, former Judge, Supreme Court of India
4. Justice Aftab Alam, former Judge, Supreme Court of India
5. Justice Madan B Lokur, former Judge, Supreme Court of India
6. Justice Gopala Gowda, former Judge, Supreme Court of India
7. Justice AP Shah, former Chief Justice, Delhi and Madras High Courts
8. Justice NK Sodhi, former Chief Justice, Kerala and Karnataka High Courts
9. Justice Anjana Prakash, former Judge, Patna High Court
10. Justice Chandru, former Judge, Madras High Court
11. Justice Kannan, former Judge, Punjab & Haryana High Court
12. Justice V. S. Dave, former Judge, Rajasthan High Court
13. A. Selvaraj, IRS (Retd.), Former Chief Commissioner, Income Tax, Chennai, GoI
14. A.K. Samanta, IPS (Retd.), Former Director General of Police (Intelligence), Govt. of West Bengal
15. Abhijit Sengupta IAS (retd), former Secretary Culture GOI
16. Achin Vanaik, Retired Professor, New Delhi
17. Admiral Ramdas, Former Chief of Naval Staff
18. Admiral Vishnu Bhagwat, (retd) former Chief of Naval Staff
19. Ajit Ranade, Economist
20. Alok Perti, IAS (Retd.), Former Secretary, Ministry of Coal, GoI
21. Amit Bhaduri, former Professor Emeritus at Jawaharlal Nehru University
22. Amitabh Behar, Wada Na Todo Abhiyan
23. Amitabh Mathur, IPS (Retd.), Former Director, Aviation Research Centre and Former Special Secretary, Cabinet Secretariat, GoI
24. Amitabha Pande, IAS (Retd.), Former Secretary, Inter-State Council, GoI
25. Anjali Bhardwaj, Social activist
26. Anna Dani, IAS (Retd.), Former Additional Chief Secretary, Govt. of Maharashtra
27. Annie Namala, Social activist
28. Annie Raja, NFIW
29. Ardhendu Sen, IAS (Retd.), Former Chief Secretary, Govt. of West Bengal
30. Arif Ghauri, Former IRS and Governance Adviser, UK Govt
31. Aruna Rodrigues, Agriculture Activist
32. Aruna Roy, Social activist
33. Arundhati Dhuru, NAPM
34. Arundhati Roy, Author
35. Ashok Khosla, environmentalist
36. Ashok Kumar Sharma, IFoS (Retd.), Former MD, State Forest Development Corporation, Govt. of Gujarat
37. Ashok Kumar Sharma, IFS (Retd.), Former Ambassador to Finland and Estonia
38. Ashok Vajpeyi, IAS (Retd.), Former Chairman, Lalit Kala Akademi
39. Avinash Mohananey, IPS (Retd.), Former Director General of Police, Govt. of Sikkim
40. B. S. Ajeetha, Advocate, High Court of Madras
41. Brijesh Kumar , IAS (Retd.), Former Secretary, Department of Information Technology, GoI
42. Chandrashekhar Balakrishnan, IAS (Retd.), Former Secretary, Coal, GoI
43. Deb Mukharji , IFS (Retd.), Former High Commissioner to Bangladesh and former Ambassador to Nepal
44. Deepak Nayyar, Emeritus Professor of Economics, Jawaharlal Nehru University, New Delhi
45. Deepak Sanan, IAS (Retd.), Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
46. Devika Singh, Social Activist
47. Dilip Simeon, Author & Historian
48. Dipa Sinha, Right to Food Campaign
49. Dr Zafarul-Islam Khan, Former Chairman, Delhi Minorities Commission
50. EAS Sarma, Former Secretary to GOI
51. Elizabeth Seshadri, Advocate, Chennai
52. Fr. Cedric Prakash SJ, human rights activist
53. G. Balachandhran, IAS (Retd.), Former Additional Chief Secretary, Govt. of West Bengal
54. G. Sankaran, IC&CES (Retd.), Former President, Customs, Excise and Gold (Control) Appellate Tribunal
55. G. Sundarrajan, Poovulagin Nanbargal
56. Geetha Thoopal, IRAS (Retd.), Former General Manager, Metro Railway, Kolkata
57. Githa Hariharan, Writer
58. Gopalan Balagopal , IAS (Retd.), Former Special Secretary, Govt. of West Bengal
59. Gourisankar Ghosh, IAS (Retd.), Former Mission Director, National Drinking Water Mission, GoI
60. Harsh Mander, social activst
61. Henri Tiphagne, Executive Director, People’s Watch and National Working Secretary, Human
Rights Defenders’ Alert – India ( HRDA)
62. Himanshu Thakkar, South Asia Network of Dams, Rivers and People
63. Hindal Tyabji, IAS (Retd.), Former Chief Secretary rank, Govt. of Jammu & Kashmir
64. HS Gujral, IFoS, former Principal Chief Conservator Forests (Head of Forest Force), Punjab.
65. Indira Jaising, senior advocate
66. Jagdeep Chhokar, former Professor, Indian Institute of Management, Ahmedabad
67. Javed Anand, Journalist and civil rights activist
68. Jawhar Sircar, IAS (Retd.), Former Secretary, Ministry of Culture, GoI, & former CEO, Prasar Bharati
69. Jayati Ghosh, Professor, Jawaharlal Nehru University
70. Jean Dreze, Economist
71. Julio Ribeiro, IPS (Retd.), Former Adviser to Governor of Punjab & former Ambassador to Romania
72. K. John Koshy, IAS (Retd.), Former State Chief Information Commissioner, West Bengal
73. K. Saleem Ali, IPS (Retd.), Former Special Director, CBI, GoI
74. K. Sujatha Rao, IAS (Retd.), Former Health Secretary, GoI
75. K.P. Fabian, IFS (Retd.), Former Ambassador to Italy
76. Kamal Jaswal, Former Secretary to Govt of India,
77. Kamla Bhasin, Social Activist
78. Kavita Krishnan, AIPWA
79. Kavita Srivastava, PUCL
80. Kavitha Kuruganti, social activist
81. Keshav Desiraju, IAS (Retd.), Former Health Secretary, GoI
82. Koninika Ray, NFIW
83. Lalit Mathur, IAS (Retd.), Former Director General, National Institute of Rural Development, GoI
84. Lalit Narula, Governing Council, Common Cause
85. Lalita Ramdas, Peace, Human Rights anti-nuclear Activist
86. Lenin Raghuvanshi, Founder, Peoples’ Vigilance Committee on Human Rights (PVCHR)
87. M.G. Devasahayam, IAS (Retd.), Former Secretary, Govt. of Haryana
88. Madhu Bhaduri, IFS (Retd.), Former Ambassador to Portugal
89. Maj Gen S.G.Vombatkere (Retd.)
90. Maja Daruwala, Senior Advisor, Commonwealth Human Rights Initiative,
91. Manoj Mitta, Author & Journalist
92. Martin Macwan, Dalit human rights activist
93. Medha Patkar, Social activist
94. Meena Gupta, IAS (Retd.),Former Secretary, Ministry of Environment & Forests, GoI
95. Meeran C Borwankar , IPS (Retd.), Former DGP, Bureau of Police Research & Development, GoI
96. Mrinal Pande, Journalist and author
97. N H Seervai, senior advocate
98. N. Ram, former Editor-in-Chief, The Hindu
99. N.C. Saxena, IAS (Retd.), Former Secretary, Planning Commission, GoI
100. N.K. Raghupathy, IAS (Retd.), Former Chairman, Staff Selection Commission, GoI
101. Nagalsamy, IAAS (retd.), Former Principal Accountant General of TN and Kerala
102. Najeeb Jung, IAS (Retd.), Former Lieutenant Governor, Delhi
103. Nandini Sundar, professor of Sociology, DSE
104. Narendra Sisodia, Retd. Secretary to GOI
105. Navrekha Sharma, IFS (Retd.), Former Ambassador to Indonesia
106. Navsharan Singh, feminist researcher
107. Nikhil Dey, Social activist
108. Niranjan Pant, IA&AS (Retd.), Former Deputy Comptroller and Auditor General, GoI
109. P. S. S. Thomas, IAS (Rtd), Former Secretary General, National Human Rights Commission of India
110. P. Sainath, Journalist and author
111. P.K. Lahiri, IAS (Retd.), Former Executive Director, Asian Development Bank
112. P.R. Dasgupta, IAS (Retd.), Former Chairman, Food Corporation of India, GoI
113. Pamela Philipose, journalist, New Delhi
114. Paranjoy Guha Thakurta, Author & journalist
115. Paul Divakar, National Campaign on Dalit Human Rights
116. Prabhat Patnaik, Emeritus professor, Jawaharlal Nehru University
117. Prakash Singh, former Police Chief, DG BSF,DGP UP & DGP Assam
118. Pranab S. Mukhopadhyay, IAS (Retd.), Former Director, Institute of Port Management, GoI
119. R. Poornalingam, IAS (Retd.), Former Secretary, Ministry of Textiles, GoI
120. R.M. Premkumar, IAS (Retd.), Former Chief Secretary, Govt. of Maharashtra
121. Rachel Chatterjee, Special Chief Secretary (Retd) Andhra Pradesh
122. Rahul Khullar, IAS (Retd.), Former Chairman, Telecom Regulatory Authority of India
123. Rajeev Bhargava, Professor, CSDS, Delhi
124. Rajmohan Gandhi, Historian and Professor
125. Ravi Chopra, People’s Science Institute
126. Ravi Nair, SAHRDC
127. Ravikiran Jain, Sr. Advocate and National President, PUCL.
128. Reetika Khera, economist
129. Romar Correa, Reserve Bank of India Professor of Economics, University of Mumbai
130. Romila Thapar, Historian
131. S. P. Udayakumaran, Pachai Tamizhagam Katchi, People’s Movement Against Nuclear Energy
132. S.K. Guha, IAS (Retd.), Former Joint Secretary, Department of WCD, GoI
133. S.P. Ambrose, IAS (Retd.), Former Addl. Secretary, Ministry of Shipping & Transport, GoI
134. Samar Bagchi, NAPM, West Bengal
135. Sandeep Pandey, Socialist Party (India)
136. Sanjay Bhasin
137. Sanjay Joshi, National Convenor, Cinema of Resistance
138. Sanjay Kak, Filmmaker
139. Satish Deshpande, Professor of Sociology, Delhi University
140. Satyavir Singh, IRS (Retd.), Former Chief Commissioner of Income Tax, GoI
141. Sevanti Ninan, Journalist and researcher
142. Shafi Alam, IPS (Retd.), Former Director General, National Crime Records Bureau, GoI
143. Shantha Sinha, Former Chairperson NCPCR
144. Sharad Behar, IAS (Retd.), Former Chief Secretary, Govt. of Madhya Pradesh
145. Shiv Shankar Mukherjee, IFS (Retd.), Former High Commissioner to the United Kingdom
146. Siraj Hussain, IAS (Retd.), Former Secretary, Department of Agriculture, GoI
147. Subodh Lal, IPoS (Resigned), Former Dy. Director General, Ministry of Communications, GoI
148. Sundar Burra, IAS (Retd.), Former Secretary, Govt. of Maharashtra
149. Suresh K. Goel, IFS (Retd.), Former Director General, Indian Council of Cultural Relations, GoI
150. Sushil Dubey , IFS (Retd.), Former Ambassador to Sweden
151. Syeda Hameed, Former member, Planning Commission
152. T. M. Krishna, Carnatic vocalist, writer, activist and author
153. Tapan Kumar Bose, Human Rights activist
154. Teesta Setalvad, Civil rights activist
155. V. Suresh, Advocate, National General Secretary, PUCL.
156. V.P. Raja, IAS (Retd.), Former Chairman, Maharashtra Electricity Regulatory Commission
157. V.S. Ailawadi, IAS (Retd.), Former Vice Chairman, Delhi Development Authority
158. Vandana Shiva, Scientist, RFSTE
159. Vappala Balachandran , IPS (Retd.), Former Special Secretary, Cabinet Secretariat, GoI
160. Vibha Puri Das, IAS (Retd.), Former Secretary, Ministry of Tribal Affairs, GoI
161. Vijaya Latha Reddy, IFS (Retd.), Former Deputy National Security Adviser, GoI
162. Vikram Lal
163. Vipul Mudgal, Activist and media scholar
164. Wajahat Habibullah, Former Chief Information Commissioner of CIC
165. Yogendra Yadav, Swaraj India
166. Yug Mohit Chaudhary, criminal lawyer

List of signatories continued here.