(The Asian Independent)
Democratic Questioning of Judicial Accountability is not ‘Contempt’
8th Aug, 2020: National Alliance of Peoples’ Movements (NAPM) expresses its concern at the initiation of contempt proceedings against human rights activist and advocate Mr. Prashant Bhushan, by the Supreme Court of India (SC), in respect of two of his tweets. The tweets are worth restating, if only to remind ourselves about the absurdity and unfairness of the criminal proceedings against Mr. Bhushan.
· On 27th June, he had tweeted that the SC’s role and that of four former CJIs in aiding the destruction of democracy in the past 6 years will be taken note of by historians in the future.
· On 29th June, he posted a photo of CJI SA Bobde, sitting on a Harley-Davidson motorcycle, which reportedly belonged to the son of a Bharatiya Janata Party (BJP) leader, Sonba Musale. Bhushan said that the CJI was riding a motorcycle without a helmet or mask, when he was keeping the SC shut, due to the coronavirus pandemic, denying justice to millions.
Far from being ‘contemptuous of the court’, these tweets point to key issues plaguing the judiciary at present. In his affidavit filed in the wake of the initiation of the proceedings, Mr. Bhushan said that the tweet reflects his impression about the manner and functioning of the SC in the past 10 years and especially about the failure of the last four CJIs to check executive high-handedness. The ‘motorcycle tweet’, which Mr. Bhushan has partly taken back, referred to judicial insensitivity towards peoples’ needs and regrettable levels of proximity between the judiciary and the government. Public criticism of specific judges does not lower the court’s prestige or authority, just like public criticism of a Chief Minister or a Prime Minister does not lower the prestige of his office or of the Government of India. It is an integral part of democratic debate and dialogue that keeps institutions accountable to the We the People.
As movements representing diverse sections of the struggling and marginalized peoples of India, we do think that Mr. Bhushan’s concerns about the disappointing and disturbing role of the higher judiciary in the past many years is important, valid and relevant to all our everyday issues. In the last few years, serious questions have been raised about the reluctance of the Supreme Court to play its constitutionally mandated role as a checking influence on governmental excesses and violations of fundamental rights of people by the state.
Most recently, the Supreme Court’s reluctance to intervene in a timely manner to avert the migrant workers crisis during the poorly planned and callously executed lockdown came under intense public scrutiny. The Court finally did intervene and pass some helpful orders, but it was quite late in the day and lakhs of workers suffered immensely during this period. In contrast both the Bombay High Court and the Supreme Court were quick to come to the rescue of Arnab Goswami, the blatantly pro-establishment journalist, who is known widely to peddle of hatred and fake news and granted him interim bail in the FIRs filed against him for biased coverage of the Palghar lynching case and of incidents involving migrant workers outside the Bandra station.
Concerns have also been raised regarding the decision of the court to not restart physical hearings, even in a limited manner, despite passage of five months since the onset of the Covid pandemic. During virtual hearings, we have heard multiple instances of the Court not unmuting mics of lawyers like Mr. Bhushan, when they had to make key oral submissions! The regrettable Ayodhya judgement of 2019, the court’s prevarication regarding the Citizenship Amendment Act (CAA) as well as the arbitrary abrogation of Article 370, striking down 100 % reservation for adivasi teachers in scheduled areas, all show that the Court indeed is letting democracy and constitutional principles down, time and again.
These questions and concerns 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. As Mr. Bhushan himself pointed out in his recent affidavit, Justice DY Chandrachud, while delivering the 15th PD Desai Memorial Lecture in the Gujarat High Court on 15th February, 2020, had expressed his anguish at the way dissent is being labelled as ‘anti-national’. The attack on Mr. Bhushan is part of a wider pattern of throttling dissent and public criticism of institutions, and of political vendetta against human rights defenders, lawyers, journalists and activists.
Mr. Bhushan belongs to the rare category of legal persons who has, over decades, worked tirelessly for the independence of the judiciary, irrespective of which party is in power. He 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.
In other words, he is a true champion of judicial independence, justice and democracy. Perhaps that is the reason these tweets from him are perceived as a ‘threat’ to the authoritarian, anti-people regime and its allies, and has invited a spirit of political vendetta. So much so that, an older case against him where he was questioned for an interview in 2009, in which he said that at least half of the 16 former Chief Justices of the Supreme Court were corrupt, has been pulled out of cold storage. The attack on Mr. Bhushan also adds to the disturbing trend of citizens being targeted for their social media activity. Not so long ago (in 2019), journalist Prashant Kanojia and others were taken into custody for posting/sharing videos deemed to be ‘defamatory’ towards Uttar Pradesh Chief Minister Yogi Adityanath. Citizens’ remarks on social media become targets even as trolls trained by BJP’s IT-Cell on a mass scale continue to spread hatred on social media.
The Contempt of Courts Act, like the Unlawful Activities Prevention Act (UAPA) and sedition, belongs to a list of laws that have been up for scrutiny, for their role in throttling free speech and consistently being subject to arbitrary use by powers-that-be. An amendment in 2006 strengthened the position of the accused persons under this law but in 2010, Justice DV Shylendra Kumar of Karnataka High Court alleged that “judges in superior courts (namely, the Supreme Court and High Courts) routinely misuse the power to punish for contempt of court more to cover up their own misdeeds than to uphold the majesty of law.” The Law Commission in 2018 said there is no need to amend the contempt of court law in its report to the government. In response to the application of the contempt law on Mr. Bhushan, he, alongside journalist N. Ram and former central minister Arun Shourie have lodged a petition challenging the constitutionality of the law itself.
· NAPM stands in unflinching solidarity with Adv. Prashant Bhushan and strongly condemns the misuse of the contempt of court law for throttling dissent.
· We appreciate his tenacity in refusing to back down, in the face of intense judicial and public pressure and for openly calling into question the role of the higher judiciary and its torch-bearers for actively and passively overseeing numerous executive excesses, constitutional violations and inactions on issues of public importance, one of the starkest recent reminders being the role of the SC as a mute spectator during the targeted communal violence in North-east Delhi in February / March 2020.
· We call upon the mass movements, trade unions, people’s organizations and citizens to rise up to the challenges of our times and hold all institutions, including the judiciary, accountable to constitutional principles and highest values of democracy, fairness and independence.
