Prashant Bhushan contempt case: Activists file intervention application 

16 prominent social activists say case will have adverse impact on citizens' Right to Freedom of Speech

prashant bhushanImage: Live Law

An intervention application has been filed by 16 civil society members and journalists including P Sainath, Aruna Roy, Anjali Bhardwaj, Jagdeep Chhokar, Bezwada Wilson in the suo moto contempt case against Prashant Bhushan at the apex court.

The applicants contended that Bhushan’s opinion as expressed in his tweet, which has been deemed as contempt of court, is an opinion that a reasonable person can legitimately hold. Hence, the institution of contempt proceedings against Bhushan is manifestly unjust and unconstitutional for violation of rights under Article 19(1)(a) of the Constitution, not only of Bhushan but also of the wider public since it causes a chilling effect on the exercise of the right to free expression.

Justifying the intervention, the applicants have stated that, “this Application is an earnest and bona-fide attempt to sustain the perception & tradition of this Hon’ble Court as a progressive, deliberative and democratic institution.” The applicants have also cited a precedent set in Indirect Tax Practitioners Association v. R.K. Jain (2010) 8 SCC 281, whereby the apex court had observed that

“Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements. Such criticism cannot be castigated as an attempt to scandalize or lower the authority of the Court or other judicial institutions or as an attempt to interfere with the administration of justice except when such criticism is ill motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons.”

Further, in Arundhati Roy, In Re, (2002) 3 SCC 343, the apex court had observed, “fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved”.

Bhushan’s tweet read, “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”. About this tweet, the applicants said that in the past few years “legitimate concerns have been raised about the reluctance of the Hon’ble Supreme Court to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights of people by the State” by all sections of society including the media, civil society and legal fraternity alike.

Thereafter, the application proceeds to put down an inexhaustive list of opinions and criticisms by respectable people including former judges of courts on the contempt case against Bhushan. Justice AP Shah, former Chief Justice of the Delhi High Court, said, “It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrage at two tweets”. Sriram Panchu, Senior advocate of the Madras High Court, has been quoted in an article in The Hindu, “COVID-19 has brought forth a standstill of the courts, which even before this were grappling with a gargantuan mass of cases. Salvaging and securing the administration of justice ought to be uppermost in minds of the apex judiciary, and there is no shortage of urgent and pressing issues which desperately cry out for the Court’s attention. Why this now?”

The applicants state that the court as the “sentinel on the qui vive”, ought to allow debate and discussion regarding its functioning and must not appear to stifle such expression through invocation of its power of contempt. They further urged the court to be open to public discussion about its functioning without people having to fear retribution for expressing an honest opinion about the courts.

The application also highlights how democracies such as the USA and the UK have abolished contempt of court as a criminal offence. The applicants have prayed to be impleaded as respondents along with Bhushan while being fully aware that if the court upholds criminal contempt in the case, they may themselves become liable for consequences thereby.

The applicants also urged the court to dismiss the contempt case against Bhushan in the interest of justice and fairness and to maintain the dignity of the Supreme Court.

Meanwhile, the Supreme Court bench of Justices Arun Mishra, BR Gavai and Krishna Murari heard the contempt case against Bhushan today which carried on as in-camera proceedings (in private) and the bench has reserved its order.

The Intervention application may be read here.


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