June 23, 2021
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Not Power Of Contempt But Reputation Shields Judiciary’s Credibility

While the temptation to set an example by taking stern action against Prashant Bhushan may be hard to resist, it may also be counter-productive as the issue of alleged corruption in the judiciary today finds resonance with a far larger constituency than it did a decade ago.

Not Power Of Contempt But Reputation Shields Judiciary’s Credibility
Prashant Bhushan
File Photo
Not Power Of Contempt But Reputation Shields Judiciary’s Credibility

Initiating contempt of court proceedings against advocate Prashant Bhushan, the Supreme Court, on Wednesday, issued him a notice seeking his response on why action should not be taken against him for two tweets posted by him recently making allegations against the judiciary.

The first tweet in question relates to Bhushan’s comment on a recent photograph of Chief Justice of India, S.A. Bobde sitting on a “(Rs.) 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”. In the second tweet, Bhushan says, “when historians in future look back at the last 6 years to see how democracy has been destroyed in India, even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs (sic)”.

Issuing the notice to Bhushan, while also questioning Twitter India why it did not remove the advocate’s tweets when a contempt action became evident, a three judge apex court bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari said, “we are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.”

The Supreme Court, which has initiated the contempt proceedings against Bhushan on its own motion (suo motu) has asked Attorney General K.K. Venugopal to assist the court in the case. The court will hear the matter on August 5.

The contempt proceedings against Bhushan, who is no stranger to the court taking umbrage at his utterances, come at a time when public discourse on social media platforms has been increasingly critical of the judiciary, particularly apex. Successive Chief Justices – most notably former CJIs Dipak Misra and Ranjan Gogoi – and some judges of the Supreme Court have, in the past few years, been the subject of unsparing ridicule for various actions – both administrative and judicial.

For Bhushan, now singled out from among numerous individuals who have made far more damning statements about the judiciary lately, the apex court’s suo motu contempt proceedings come as a double whammy. Not only has the top court initiated fresh proceedings against him but it has also revived an over a decade-old contempt case that has been pending against Bhushan and his father, senior advocate and former Union law minister Shanti Bhushan.

The contempt case against the father-son duo and Tarun Tejpal, the former Editor-in-Chief of Tehelka magazine, was last heard in May 2012. The Supreme Court registry has now listed this case for hearing on July 24. This case was instituted against Bhushan and Tejpal back in November 2009 (K.G. Balakrishnan was then the CJI) when the former told Tehelka magazine in an interview, “In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against (Madan Mohan) Punchhi, (Adarsh Sein) Anand, and (Y.K) Sabharwal on the basis of which we sought their impeachment.” Punchhi had served as CJI from January 18, 1998 to October 9, 1998 and was succeeded by Anand who held the office until October 31, 2001. Sabharwal was CJI from November 1, 2005 to January 13, 2007.

During the contempt proceedings against Bhushan and Tejpal, Shanti Bhushan had stunned the judiciary and legal commentators by urging the top court to implead him in the case as a respondent. Bhushan Senior had filed an affidavit before the top court in September 2010 – S.H. Kapadia was then the CJI – that said “eight of the last sixteen Chief Justices of India were definitely corrupt”. The 16 former CJIs named in the affidavit by Shanti Bhushan were Rangnath Mishra, K.N. Singh, M.H. Kania, L.M. Sharma, M.N. Venkatchalliah, A.M. Ahemadi, J.S. Verma, M.M. Punchhi, A.S. Anand, S.P. Bharucha, B.N. Kripal, G.B. Patnaik, Rajendra Babu, R. C. Lahoti, V.N. Khare and Y.K Sabharwal. The affidavit had said, “Out of these, in the applicant’s opinion, eight were definitely corrupt, six were definitely honest and about the remaining two, a definite opinion cannot be expressed whether they were honest or corrupt.”

In a dramatic courtroom gesture, Shanti Bhushan had then informed the bench that “the signed lists identifying these eight, six and two Chief Justices of India are being enclosed in a sealed cover” and dared the judges to open and read out the contents of the envelope in open court. Days later, Prashant Bhushan had filed another affidavit in the Supreme Court listing alleged instances of corruption against six former CJIs while also levelling the charge of a possible conflict of interest against then CJI, S.H. Kapadia, for hearing a case linked to multinational corporation Vedanta despite holding shares in the company.

The contempt case against Shanti and Prashant Bhushan was heard by the apex court during the tenure of three CJIs – Balakrishnan, Kapadia and Altamas Kabir. In November 2010, when a three-judge apex court bench headed by then CJI Kabir had asked Bhushan Senior whether he and his son would prefer to go to jail in the contempt proceedings underway against them or to tender an apology, the veteran lawyer had promptly chosen the first option. During an earlier hearing in the case too, Shanti Bhushan had maintained the same position, informing the court that he would “consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary.”

Under provisions of the Contempt of Courts Act, 1971, an individual held guilty of contempt can be punished with simple imprisonment for a term of up to six months, or with a fine which may extend to Rs 2,000, or with both. However, the accused can also be discharged or have the punishment remitted by offering an apology that satisfies the court.

Prashant Bhushan has, for now, refused to comment on the top court’s decision to initiate contempt proceedings against him over his tweets or revive the case pending against him and his 94-year-old father since 2009. In the current context, however, it would be pertinent to recall a submission that Bhushan Senior had made before the top court in September 2010 when he had dared to say what many others have said since. “Unless the level of corruption in the judiciary is exposed and brought in the public domain, the institutions of governance cannot be activated to take effective measures to eliminate the evil… It is a common perception that whenever such efforts are made by anyone, the judiciary tries to target him by the use of the power to contempt. It is the reputation of the judge which is his shield against any malicious and false allegations against him. He does not need the power of contempt to protect his reputation and credibility.”

As the top court prepares to adjudicate the contempt matters against the Bhushans, it would, perhaps, do itself a great service by reflecting on this submission that Shanti Bhushan had made a decade ago. After all, instances of allegations against the judiciary, in general, and CJIs, in particular, have only become more frequent and more acerbic in these past 10 years. While the temptation to set an example by taking stern action against Prashant Bhushan may be hard to resist, it may also be counter-productive as the issue of alleged corruption in the judiciary and the impression that judges have surrendered their constitutional authority to the Executive for considerations such as a Rajya Sabha nomination or other post retirement perks today finds resonance with a far larger constituency than it did a decade ago.

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