No clarity yet on Bhushan, AG does well on Bhasker

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August 26, 2020 6:30 AM

Sentencing Bhushan sends out a message of intolerance; good that AG stopped this in the case of Swara Bhasker

Besides, the chilling effect it has on criticism does neither the judiciary’s image nor the larger cause of judicial accountability any good.Besides, the chilling effect it has on criticism does neither the judiciary’s image nor the larger cause of judicial accountability any good.

While the Supreme Court (SC) has reserved its sentencing of Prashant Bhushan, the court’s observations make it clear that it was unwilling to drop the matter till the latter retracted his statements and apologised; Bhushan refused to do this, pointing out, correctly, that an apology would be insincere as he meant what he had said. But the stage was set earlier, when SC decided to prosecute Bhushan even though, as this newspaper has argued before, there was little in the tweets that either lowered the authority of the court or the common man’s confidence in the court. 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. Indeed, when former Union law minister P Shiv Shankar had made some caustic observations about the judges of the Supreme Court—and the then Attorney General had denied consent for prosecuting the minister—the SC still went into the contents of his speech and held that contempt charges were not maintainable and “there was no imminent danger of interference with the administration of the justice and bringing administration into disrepute”. Apart from sitting judges who criticised the then Chief Justice of India—in a widely televised press conference at that—as Attorney General KK Venugopal said to SC before he was cut off last week, even judges of SC have, in the past, said democracy has failed in the Supreme Court.

The contempt law has no place in a modern democracy, especially in one where the judiciary seems to be subject only to its own scrutiny thanks to the SC striking down the NJAC Bill that sought to put in place an independent accountability mechanism. Besides, the chilling effect it has on criticism does neither the judiciary’s image nor the larger cause of judicial accountability any good.

In this context, Attorney General KK Venugopal did well to decline consent for contempt proceedings against actor Swara Bhasker, for alleged “derogatory and scandalous” statements against the Supreme Court in reference to the apex court’s verdict in the Ram Janmabhoomi case. The petition seeking contempt action against the actor cites her statement at a conference in Mumbai where she reportedly said, “We are living in a country where the Supreme Court states that the demolition of the Babri Masjid was unlawful and, in the same judgment, rewards the people who brought down the mosque”, adding (likely for rhetorical impact) that “it seems we are in a situation where our courts are not sure whether they believe in the Constitution”. Venugopal declined sanction saying that while the first part of the statement seemed “factual and is a perception of a speaker”, the second statement doesn’t seem “related to any particular court”. The AG concluded that this was not an instance where the question of lowering of the authority of the Supreme Court or scandalising it arises. Against the backdrop of of a chequered history of contempt litigation in the country, Venugopal refusing permission for proceedings against Bhasker is progressive. Though Bhasker can still be tried if the acting Solicitor General Tushar Mehta gives consent, perhaps Venugopal refusing to do so should provide direction to the SG too.

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