SC holds Prashant Bhushan in contempt: How can 2 tweets shake foundations of law and imperil Indian democracy?

Can two tweets shake the very foundations of the rule of law and Indian democracy?

If the Supreme Court’s judgment in In Re: Prashant Bhushan is to be believed, they can.

Containing less than 600 characters, but offering a comment on the state of the Supreme Court and the conduct of the present Chief Justice of India, Bhushan’s two tweets apparently were serious enough to merit a 108-page response from the apex court. This is an overreaction and a self-defeating exercise. Social media has given every citizen, wise or otherwise, the power to vent their thoughts into the public domain on matters, all and sundry.

Various views about the judiciary are espoused on a daily basis and put out there for everyone to see. Some are justified and some bizarre. Even if one were to grant that Bhushan is one of the most prominent advocates in the country and more credible than the average tweeter, it still ill-behooves the court to respond to such criticism with contempt of court charges. There are two specific allegations that Bhushan levels against the Supreme Court and its judges in the tweets: First that the last four CJIs have colluded with the Narendra Modi government to harm democracy in India since 2014 and second, that the Supreme Court remains shut down (when he tweeted) leaving citizens with no access to their fundamental right to justice.

That the Supreme Court chose to pick up these two tweets and respond to them gives the impression, as the Hindi saying goes, “chor ke daadi main tinka“. However, the court does not really give Bhushan an opportunity to prove his claims but to brush them aside with counter-claims of its own. This is the classic case of being a judge in one’s own cause — everything the court says about itself, it deems to be the truth and everything Bhushan says about it, “false, malicious and scandalous”.

What’s interesting though is that it applies this standard only to the claims in the context of the court being shut down. While the court produces statistics to show that 12,678 different cases and 686 writ petitions were heard in the five-month period between March and August this year, it does not give the data for previous years to provide any context for its claims. The context matters because 14,381 cases were listed for hearing in April 2019 alone, while only 357 cases were listed in April this year.

Far from offering any justification or mea culpa for its failures, the court has selectively used data to give itself a clean chit. Which isn’t surprising — the court is only judging the merits of its own claims and whatever standard of proof it chooses to test the truth of its own claims, is the law. Curiously, the court does not go into the merits of the other allegation made by Bhushan at all. When the court is so conscientious about getting the registry to dig up the data about hearings, it shies away from doing so in rebutting Bhushan’s claim that the past four CJIs have colluded with the Union government to ensure that the court does not check any major government action.

The court dismisses the allegation with a cryptic couple of sentences:

We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice.”

If the court is convinced that what Bhushan has said is false, then surely it is up to the court to show that it is so. If, however, what Bhushan has said is true, then the damage to the institution wrought by the actions of the past four CJIs is greater than two tweets talking about it could ever be. The discernible reader is likely to conclude that finding no way in which to effectively rebut Bhushan’s allegations, the court simply uses its brute power to rush to judgment and convict him for contempt. This hasty and pre-judged conviction of Bhushan raises more questions than it attempts to answer.

If the court was doing such the good job (it thinks it is doing), did it really need to take up this case when so many others are pending during the pandemic? Does it consider the public so childish and immature that it is unable to weigh the evidence of the court’s actual functioning against two tweets questioning such functioning? To go back to the question asked at the beginning of this piece — can two tweets shake the very foundations of the rule of law?

Yes, they can.

When the rule of law has been rendered a nullity as the court shies away from hearing and deciding matters of public importance concerning the rights of millions as it moves from adjournment to adjournment. When the rule of law has been allowed to be completely eroded away by judges who are less interested in upholding it than securing their post-tenure futures. When the rule of law is ignored by judges in order to protect one of their own who stands accused of sexual harassment or corruption.

If these two tweets have threatened to bring down “the central pillar of Indian democracy”, it is simply because that pillar is rotten, cracked and crumbling.

The author is an advocate and senior resident fellow at the Vidhi Centre for Legal Policy. He, like Prashant Bhushan, is an executive committee member of the Campaign for Judicial Accountability and Reforms. Views expressed are personal.

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