SC has weightier issues to deal with; also, it is difficult to believe Bhushan’s comments shook people’s faith in SC
Much like the sedition law, the contempt law too has no space in a modern democracy; the use of both can be justified under exceptional circumstances, but as has been seen in so many cases, the impact can be to chill any form of criticism or dissent, the bedrock of a democracy. Certainly, the Supreme Court (SC) is right when it says, in the Prashant Bhushan contempt case ruling, that “the object of contempt proceedings is not to afford protection to Judges personally”, but to the public “whose interests would be very much affected if by the act or conduct of any party, the authority of the court is lowered and the sense of confidence which people have in the administration of justice by it is weakened”. But, apart from Jack Dorsey who heads Twitter, few would argue that two tweets by Bhushan had so much impact, they lowered the confidence that people have in the SC or the respect for its judgments.
Indeed, the court has weathered so much more, and from people who have a far greater stature, both within the legal fraternity as well as among the common people. When the Constitutional bench struck down the NDA government’s NJAC Act, Justice J Chelameshwar had written—in a dissent note—that the proceedings of the collegiums were “absolutely opaque and inaccessible both to public and history, barring occasional leaks”. Critiquing the collegium system, Chelameswar argued that to entirely eliminate the government from the selection process would be against the country’s democratic principles. And, few observations about the judiciary would have been so damaging as, in January 2018, four senior judges holding a press conference—this was reported by all newspapers, broadcast on live TV—and casting aspersions that the then CJI Dipak Misra was bench-fixing by assigning important cases to junior judges.
The Bhushan case comes at a time when the SC has very weighty national issues to deal with, from the massive backlog of cases to the issues of the sort raised by Justice Chelameswar—with the NJAC dismissed by SC, how is judicial impropriety, or the promotion of judges, to be addressed in a transparent manner?—and many more like the challenge to the abrogation of Article 370 or the case of the electoral bonds. By sentencing Bhushan—this is to be done later, though the contempt ruling was delivered last week—at a time when it has much more serious issues to deal with, SC must keep in mind it will always be remembered as the court that sentenced an advocate for a mere set of tweets. It should, instead, display the kind of broad shoulders it exhibited when the law minister—P Shiv Shanker—delivered a speech which was considered contemptuous of court. One of the reasons for not proceeding with the contempt, as SC notes in its Bhushan ruling, is that the Attorney General did not give his consent for prosecuting the law minister; the court held that the contempt proceedings couldn’t be started without the consent of the Attorney General and the Solicitor General. But, this was probably a face-saver since SC goes on to say that, “though this Court held that the contempt petition was not maintainable, it went into the merits of the speech … and held that there was no imminent danger of interference with the administration of the justice and bringing administration into disrepute”. Even if sometimes it can be unwarranted and slanderous, encouraging criticism makes for healthier institutions and strengthens democracy.