In celebrated cases like Jessica Lal, it was the public opinion that was generated—through involved people speaking to the press, on- or off-record—that forced retrial and ensured justice was served. Courts can’t have a thin skin, they have to keep in mind the larger good, which is more transparency.
The Supreme Court’s notice to lawyer Prashant Bhushan, on separate contempt of court petitions filed by attorney general (AG) KK Venugopal and the Union government, through solicitor general (SG) Tushar Mehta, puts India at a crossroads. The petitions were filed against Bhushan over his allegations on Twitter that, in the matter of the appointment of M Nageswara Rao as the interim chief of the CBI, the Centre may have misled the apex court. It isn’t clear how the contents of Bhushan qualify as contempt of court. But the AG asking the SC to set guidelines that determine the contours within which lawyers and media discuss and opine on a case pending in court, and the bench of Justice Arun Mishra and Navin Sinha that issued the contempt notice observing that such discussion/analysis affects both public opinion and the judiciary/judges—and that the public has a right to know, but only “what transpired in court”—makes the eventual judgment in this matter quite far-reaching. Incidentally, the SG favoured strict punishment for Bhushan—and if this is the precedent the apex court finally sets in the matter, all such discussion of sub-judice cases by media and lawyers, whether activism-driven or not, could become punishable. Thus, the apex court needs to take a considered view on the matter.
Justice Mishra is right in saying that the discussion of the particulars of a sub-judice case colour public opinion in the case and also sometimes, as collateral damage, of the individual judges hearing the case. But, the fact is that judges do have a recourse in obiter dictum, where they can set the record straight even while the case is going on. Besides, the judgment, when it does come, presents the studied opinion of the judge(s). What has, in the process of setting the record right in the Bhushan matter, got unexpectedly endangered is the transparency in delivery of justice, especially in matters of public interest.
Bhushan’s tweet was based on a letter written to the PM by Leader of Opposition (LoP) Mallikarjuna Kharge, alleging that, contrary to what the AG submitted in SC, the matter of appointing an interim director of CBI was never placed before the meeting of the High Power Committee comprising the PM, the LoP and CJI Ranjan Gogoi’s nominee Justice AK Sikri. However, sealed documents submitted to the apex court by the government seem to suggest Kharge misled Bhushan. Even if Bhushan’s tweet was incorrect, this was easily fixed by making public the contents of the sealed envelope—in which case, the SC accepting the contents in a sealed envelop helped perpetuate Bhushan’s misinformation. Apart from the fact that it is not clear how Bhushan’s uninformed critique of the AG and the Centre is contempt of court, the SC has to keep in mind that the greater the level of information that the public has, the lesser the chances of a miscarriage of justice. In celebrated cases like Jessica Lal, it was the public opinion that was generated—through involved people speaking to the press, on- or off-record—that forced retrial and ensured justice was served. Courts can’t have a thin skin, they have to keep in mind the larger good, which is more transparency.