'Raising Concerns About The Manner In Which 4 CJIs Have Used Or Failed to Use Their Powers Doesn't Amount To Contempt' : Bhushan's Reply In SC

Stating that bonafide criticism of the manner and the functioning of the Supreme Court, 'however outspoken, undesirable and unpalatable' it is, cannot constitute contempt of court, Advocate Prashant Bhushan filed reply to the notice in the suo moto contempt case taken by the SC over two of his tweets.

At the outset, he mentions that he had sought for the copies of the original complaint of Advocate Mahek Maheshwari, which was converted into the suo moto case, and also the administrative orders which placed the matter on the judicial side of the SC, which were denied by the Secretary-General. In the absence of those documents, Bhushan says that he is "handicapped in dealing with the contempt notice", and adds that his reply was a preliminary one, without prejudice to his objection against non-supply of documents.

Tweet about CJI Bobde - 'Underlining anguish at the non-physical functioning of court'.

As regards his tweet about Chief Justice of India, S A Bobde, seated on a Harley Davidson motorcycle, Bhushan says that his comment was to underline his angusih at the non-physical functioning of the Supreme Court for the last more than three months, "as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal".

"The fact about the CJI being seen in the presence of many people without a mask was meant to highlight the incongruity of the situation where the CJI (being the administrative  head of the Supreme Court) keeps the court virtually in lockdown due to COVID fears (with hardly any cases being heard and those heard also by a unsatisfactory process through video conferencing) is on the other hand seen in a public place with several people around him without a mask. The fact that he was on a motorcycle costing 50 lakhs owned by a BJP leader had been established by documentary evidence published on social media. The fact that it was in Raj Bhavan had also been reported in various sections of the media My expressing anguish by highlighting this incongruiry and the attendant facts cannot be said to constitute contempt of court. If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article l9(1Xa) of the Constitution", the reply adds.

Expression of Bonafide impression about the functioning of SC

As regards the tweet about the role of SC in the destruction of democracy and the role of last 4 CJIs in that, Bhushan says that it was his "bonafide impression" about them and it is his considered opinion that SC allowed the destruction of democracy and such expression of opinion however "outspoken, disagreeable or unpalatable" can't constitute contempt.

"What I have tweeted is thus my bonafide impression about the manner and functioning of the Supreme court in the past years and especially about the role of the last 4 chief Justices have played vis a vis their role in being a check and balance on the powers of the executive, their role in ensuring that the supreme court functions in a transparent and accountable manner and was constrained to say that they, contributed to undermining democracy", states the reply, filed through Advocate Kamini Jaiswal.

Critique about actions of CJI does not amount to scandalizing the court

The reply adds that the "Chief Justice is not the court, and that raising issues of concern regarding the manner in which a CJI conducts himself during "court vacations,', or raising issues of grave concern regarding the manner in which four CJIs have used, or failed to use, their powers...does not amount to "scandalising or lowering the authority of the court".

Stating that the CJI cannot be equated with the Supreme Court, the reply says 

"To bona fide critique the actions of a CJI, or a succession of CJIs, cannot and does not scandalise the court, nor does it lower the authority of the court. To assume or suggest that 'the CJI is the SC, and the SC is the CJI' is to undermine the institution of the Supreme Court of India".

The reply quotes the speeches of Justices D Y Chandrachud & Deepak Gupta in which they said that stifling dissent amounts to killing democracy. He also refers to an interview given by Justice Kurian Joseph in Dec 2018 where he said there were "external influences" on the CJI.

He highlights the fact that public criticism about the administration of Supreme Court had emanated from the judges itself, in the press conference held by four SC judges - Justices J Chelameswar, Kurian Joseph, Madan B Lokur and Ranjan Gogoi - in January 2018.

Preventing citizen from evaluating the performance of public institution not a reasonable restriction on free speech

The reply states that to prevent a citizen from forming, holding and expressing 'bonafide opinion' in the public interest on any institution and from 'evaluating' its performance is not a reasonable restriction on fundamental right to free speech.

"The power of contempt under Article 129 is to be utilized to aid in administration of justice and not to shut out voices that seek accountability from the Court for it's errors of omissions and commissions which have been detailed hereinafter. To curb constructive criticism from persons of knowledge and standing is not a'reasonable restriction'. Preventing citizens from demanding accountability and reforms and advocating for the same by generating public opinion is not a 'reasonable restriction'. Article 129 cannot be pressed into service to stifle bonafide criticism from citizens who are well informed about the omissions and commissions of the Supreme Court".

It is stated that many democracies have recognized the offence of scandalizing the court as unconstitutional and recommended the abolition of this offense "as being inconsistent with any constitutional guarantee of freedom of speech and of fair trial since it gives judges, alone, among public wielders of power, a special immunity from criticism and a power where they sit as judges in their own cause, to punish their critics".

The reply then extensively refers to and quotes from various comments and opinions made by retired judges, such as Justice M B Lokur, A P Shah, Senior Advocates such as Navroz Seervai, Raju Ramachandran, Sanjay Hegde, Arvind P Datar,  critiquing the functioning of the Court.

The controversies which arose during the last four-five years such as the Kalikho Pul suicide note, Sahara-Birla case, Medical College Bribery case, SC judges press conference, Master of Roster issue, impeachment attempt on CJI Dipak Misra, collegium appointments, sexual harassment allegations against Justice Gogoi, the nomination of Justice Gogoi to Rajya Sabha etc are detailed in the reply.

The reply further states that many judgments of the SC in politically sensitive issues, such as Judge Loya case, Bhima Koregaon case, Ayodhya case, CBI director's case, and also the non-consideration of issues such as electoral bonds, Article 370, CAA, J&K detentions etc, give sufficient basis for forming an opinion about the independence of the judiciary.

"I think the above cases and their decisions and the inaction of the courts in dealing with some of these critical cases are enough for me to form my opinion about the role played by this Hon'ble Supreme Court in last 6 years in undermining democracy which bonafide opinion I am entitled to form, hold, & express under Article 19(l)(a)", he says.

It was on July 22 that the bench headed by Justice Arun Mishra issued contempt notice to Bhushan in a suo moto case taken with respect to two of his tweets on judiciary and the Chief Justice of India.

On July 24, the bench listed for hearing a contempt case taken against Bhushan in 2009, over his comments against Chief Justices of India in an interview given to "Tehelka" magazine. The bench said, "We need to hear the matter".

Read the reply affidavit