Lawyer-activist Prashant Bhushan is facing two contempt of court cases in the Supreme Court. They are likely to come up for hearing on August 4 and 5 respectively. The first relates to a 2009 case and the second to social media posts by Prashant Bhushan.
The contempt of court cases against Prashant Bhushan has set off a debate over freedom of expression as a fundamental right of an individual versus freedom of judiciary to maintain its credibility in the larger public interest.
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 have made a public appeal to the Supreme Court withdraw the proceedings against Prashant Bhushan "in the interest of justice and fairness and to maintain the dignity of the Supreme Court".
The 131 signatories include former Supreme Court judge Madan B. Lokur and Swaraj India president Yogendra Yadav.
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 mentioned that 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 media, academics, civil society organizations, 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 quoted concerns had also been raised regarding the court’s decision to not restart physical hearings, even in a limited manner, despite the passage of the last few 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.
It added that the Supreme Court must be open to public discussion without the fear of retribution.“The principle that criticism of the judiciary should not be stifled by the indiscriminate use of the power of contempt has been recognized by the Supreme Court as well as by academics and advocates of repute,” the statement said.
“Indeed, criminal contempt as an offense has been circumscribed and made redundant in most functioning democracies, such as the USA and the UK,” it said.
The statement mentioned 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”.
“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,” read the solidarity statement.
A bench headed by Justice Arun Mishra, on July 22, had issued notice to Prashant Bhushan on the contempt proceedings initiated against him for his alleged derogatory tweets against the judiciary, saying his statements prima facie "brought the administration of justice in disrepute".
Differentiating between various aspects of contempt proceedings, the official said that Advocate Anuj Saxena had filed the petition on behalf of a person with the Supreme Court's registry and as the plea was not accompanied with the consent letter of either AG or SG, a prerequisite for filing the criminal contempt, the matter was put up before the court in its administrative side.
Later, the bench took the matter on the judicial side and after taking note of the factual situation, sought the opinion of Attorney General KK Venugopal as required under the procedural rules, he said.
The Supreme Court took suo motu cognizance of the contempt petition of a lawyer and not on its own as reported in some news reports, he added.