Criticisms and comments of the judicial fraternity against Court verdicts and juridical process are showing no sign of abatement. There are even allegations from the jurists and a section of media commentators about flouting of judicial codes and ethics. Of late, such criticisms and comments have surfaced again centring on two recent judicial pronouncements on ‘freedom of speech’—one delivered by the hon’ble Supreme Court penalizing Shri Prashant Bhushan, a senior lawyer, on a contempt of court charge for an alleged derogatory comment against a sitting judge and the other by the hon’ble Allahabad High Court asking for charges framed under National Securities Act against Dr Kafeel Khan, a noted paediatrician, by the UP government to be dropped and to release him from preventive custody. These criticisms and comments against none other than judiciary do portend an ominous future for the country and raises question about functioning of parliamentary democracy. Since it is a very sensitive issue and does have a serious impact on the common citizens seeking justice through the existing judicial system, we reproduce here a compilation of various media reports on this issue in sequence and hope that democratic-minded people would seriously ponder over the matter and initiate necessary action to secure the efficacy of the justice-delivery mechanism.
Prashant Bhushan pronounced guilty of Contempt of Court
“On 14 August 2020, the Supreme Court found Prashant Bhushan guilty under the Contempt of Courts Act, 1971 for two social media posts in June that, it said, had “the effect of destabilising the very foundation” of India’s judiciary.”(Human Rights Watch, New York, 19-08-20) “The scurrilous allegations, which are malicious in nature and have the tendency to scandalise the court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest,” the Supreme Court said in its judgment.”(The Quint-14-08-20) “In the first instance, the Supreme Court, in a display of self-proclaimed “magnanimity”, let off Mr. Bhushan with a fine of one rupee in the contempt case…. In the alternative, the top court ordered for a three-month imprisonment term and three years’ debarment from practice. The Court chastised him for his “conduct”, which, according to the Court, “reflects adamance and ego, which has no place to exist in the system of administration of justice and in noble profession, and no remorse is shown for the harm done to the institution to which he belongs”. The jurisprudential contribution of this decision to the law of contempt will be studied for years to come, surely, but maybe not for the reasons that the Court intended. Hopefully, a wiser judicial and legislative community will realise one day how utterly self-defeating this law is for a healthy democracy, and eventually change the law around.”(Justice A.P. Shah, a retired Chief Justice, Delhi and Madras High Courts, and former Chairperson, Law Commission of India in “The Hindu” 07-09-20)
“The Court generally is becoming more prickly when it comes to issues of free speech, as evidenced in the most recent Prashant Bhushan case. The court let off Prashant Bhushan with a fine of Re 1 for the contempt case against him over two tweets, but not without chastising his conduct. In the entire proceedings, one thing was clear: the court came across as an intolerant institution.” [Adapted from Justice A P Shah’s speech, Supreme Court in Decline: Forgotten Freedoms and Eroded Rights, at the Justice Suresh Memorial Lecture, on September 18, 2020. (The Wire 18-09-20)] “Many of us may have to either not say freely and frankly what we think, or we may only allude to things. That too would not be in the interest of the institution,” said Advocate Sanjay Hegde. (The Quint-14-08-20)
“In India, contempt can be both civil and criminal under the Contempt of Courts Act, and is punishable by up to six months in prison. Criminal contempt is defined broadly as any act that “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.” In the United Kingdom, the offence of “scandalising” the court was abolished in 2013 after the UK Law Commission said it was an infringement on freedom of expression. The contempt verdict against Bhushan could signal to India’s courts that any criticism of the judiciary could be subject to criminal action. The verdict prompted widespread condemnation across India.”(Human Rights Watch, New York, 19-08-20)
“In 2010, Justice V R Krishna Iyer, in an article, addressed the question of whether people have a right to criticise the judiciary and if so, at what point does this freedom of expression degenerate into criminal contempt. He wrote that unlike the executive or legislature, whose excesses beyond the Constitution may be struck down by judiciary, the judiciary and judges may be corrected only by public criticism. Thus “only rare cases deserve contempt impeachment”, he said, adding that the “best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance”. (The Wire-19-08-20)”When invited to speak at a symposium on ‘Approach of Judicial Reforms’…Justice Iyer’s speech, inter alia, included the following observations: “In this country, the Jesuses are getting crucified and the Barabases are very much upheld, thanks perhaps to the judiciary” “Our whole judicial approach has a certain independence from all civilised behaviour.” “In fact to speak very frankly, the Indian judiciary is non est.” However, the High Court concluded that Iyer’s criticism did not come within the purview of criminal contempt. “In a democratic age no institution should be beyond the reach of honest criticism. The courts are no exception. While commenting on the functioning of courts, on the working of the judicial machinery, adverse and unpalatable criticism is as likely an offer of bouquets for the excellence of its performance. The courts should not feel elated by compliments offered or be embarrassed by adverse criticisms”, the court held.”(Priya Anuragini and Abdullah Nasir, assistant professors at Dr Ram Manohar Lohiya National Law University, Lucknow, in The Wire-19-08-20) “Former Attorney General of India Soli Sorabjee told that the Supreme Court overreacted by taking action against lawyer Prashant Bhushan. “Every citizen has the right to his independent view,” Sorabjee said. “I repeat, if Prashant Bhushan’s allegations are found to be completely nonsensical, then punish him, but not before that…no, I don’t think the Supreme Court has come out in good light in this matter…the court has the notion that nobody can speak against us…You are not some divine institution against whom we can’t speak.” (scroll.in 23-08-20) “Asking Prashant Bhushan to serve a three-month simple prison term and be debarred for three years from legal practice, the Supreme Court has bared its dark, intolerant side.”(The Hindu Editorial 01-09-20)
“On Tuesday, 18 August, the Bar Association of India also issued a statement, in which they too expressed their dismay about the case, and said that the “exercise of contempt jurisdiction by the Court in this manner has potential for more self-harm than the avowed purpose of safeguarding the prestige of the institution.” (The Quint-18-08-20)”Lawyers, academics and political leaders on Friday, 14 August, criticised the Supreme Court’s decision to hold activist lawyer Prashant Bhushan guilty of criminal contempt of court in its suo motu contempt case, calling it “alarming”, a “blow to the rule of law” and anticipating a “bleak future for free speech”. (The Quint-14-08-20)”More than 3,000 former judges, retired bureaucrats, journalists, and lawyers signed a statement calling the judgement a “disproportionate response” that would have a “chilling effect” on people expressing critical views of the judiciary. Over 1,800 lawyers signed a statement challenging the ruling and calling on the Supreme Court not to give effect to the judgment until a larger bench was able to review criminal contempt standards in open court after pandemic restrictions are lifted.” (Human Rights Watch, New York, 19-08-20) “LAWASIA, the Law Association for Asia and the Pacific, expressed concern about the Supreme Court’s decision in a statement on Tuesday, 18 August, particularly from the viewpoint of India’s obligations towards free speech and freedom of expression in international law.” (The Quint 18-08-20) ”The International Commi-ssion of Jurists (ICJ) said it seemed inconsistent with the freedom of expression law guaranteed by the International Covenant on Civil and Political Rights that India was a party to.”(The Hindu-01-09-20)
Granting bail to Dr Kafeel Khan as charges found not sustainable
“While ordering the release of Dr Kafeel Khan, the division bench of hon’ble Allahabad High Court comprising Chief Justice Govind Mathur and Justice SaumitraDayal Singh noted that the Aligarh district magistrate (who brought charges against Dr Khan for delivering an inflammable anti-national speech—P Era) had quoted selectively from a speech given by Khan at the Aligarh Muslim University to justify his detention. The judges noted, according to Bar & Bench: “We are having no hesitation in concluding that neither detention of Dr Kafeel Khan under National Security Act, 1980, nor extension of the detention are sustainable in the eye of law.” According to LiveLaw, the court, concluding that the order of detention is bad, adds: “The order of detention dated 13th February 2020 passed by District Magistrate, Aligarh and confirmed by the State of Uttar Pradesh is set aside. The extension of the period of detention of detenu Dr Kafeel Khan is also declared illegal. A writ in the nature of habeas corpus is hereby issued to release Dr Kafeel Khan, the detenu from State custody forthwith.” The order quotes the entire speech made by Khan to contextualise the comments which the prosecution says were ‘provocative’. The bench found that even, prima facie, Khan’s speech “does not disclose any effort to promote hatred or violence. It also nowhere threatens peace and tranquillity of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence.” “No doubt, some part of the phrases used in the grounds for detention are there in speech, but apparently in different context. The speaker was certainly opposing the policies of the government and while doing so certain illustrations are given by him, but that nowhere reflects the eventualities demanding detention,” the order notes. The order adds: “The speech also deprecates any kind of violence. It appears that the District Magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent. The entire speech being a subject matter of a criminal case pending against Dr Kafeel Khan, therefore, it would not be appropriate for us to make much comments on that. Our anxiety is only to assess that as to whether a reasonable man could have arrived at a conclusion as arrived by the District Magistrate, Aligarh? Prima facie, the speech is not such that a reasonable man could have arrived at a conclusion as the inference drawn by the District Magistrate, Aligarh.” (The Wire 01-09-20) “The hon’ble Allahabad High Court based its reasoning on the traditional understanding of our Constitution as a limitation on (meaning prescribed limits-P Era) the functions of the State. This means that the constitutional rights cannot be violated by the governments, irrespective of the fact which politician or political party is in power. The court argued: “The system of governance is to promote fraternity with assurance to maintain the dignity of every individual as well as unity and integrity of the nation. The strong and valuable fabric of our nation is well designed with support of fundamental rights given in Part-III of the Constitution. These rights are golden thread in the fabric, which is further illuminated by extending protection of life and personal liberty under Article 21 of the Constitution of India.”(Raghav Pandey in First Post 03-09-20)
“In Khan’s case, he was charged under Section 153A of the Indian Penal Code, for which he was given bail by the CJM court in Aligarh on 10 February 2020. However, the Uttar Pradesh government did not release him. The second release order, which was issued on 13 February, was respected, but he was taken into preventive custody soon after. Such arbitrary behaviour by any government is unsustainable under any constitutional order and the system of rule of law. It goes against the Constitution as well as the judiciary. The mere wish of a state government to keep a person in detention will never be enough to divest someone of their personal liberty guaranteed under Article 21.”(ibid)
Comments and Criticisms on the two verdicts
“A speech of Babasaheb Ambedkar, the framer of Indian Constitution themed around labour and parliamentary democracy clearly illustrates that with great power comes great responsibility and the Indian Constitution places onerous responsibilities on the Supreme Court. He explained: “In a parliamentary democracy there is [the] legislature to express [the] voice of the people, there is [the] executive, which is subordinate to the legislature and is bound to obey the legislature. Over and above the legislature, there is the judiciary to control both and keep them within [their] prescribed bounds.” Justice is not a cloistered virtue. However, the apex institution mandated with the task of dispensing it in the country comes across as both opaque and cloistered.”(The Wire-19-08-20) “Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2). In C.K. Daphtary v. O.P. Gupta (1971), the Supreme Court held that the existing law of criminal contempt is one such reasonable restriction. That does not mean that one cannot express one’s ire against the judiciary for fear of contempt. Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as the publication of any matter or the doing of any other act which scandalises or lowers the authority of any court; or prejudices or interferes with the due course of any judicial proceeding; or obstructs the administration of justice. Does this mean that one can never voice any criticism of the judiciary? No. What the law permits you to say regarding the functioning of Indian courts forms the basis of this particular article, i.e., there is a thin line separating criticism and contempt. The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious. If the comment is made against the judge as an individual, the Court would consider whether the comment seeks to interfere with the judge’s administration or is simply in the nature of libel or defamation. The Court would have to determine whether the statement is fair, bona fide, defamatory or contemptuous. A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function. Criminal contempt does not seek to afford protection to judges from statements which they may be exposed to as individuals. Such statements would only leave the individual liable for defamation. Statements which affect the administration of justice or functioning of courts amount to criminal contempt since public perception of the judiciary plays a vital role in the rule of law. An attack on a judge in his or her official capacity denigrates the judiciary as a whole and the law of criminal contempt would come down upon such a person unless it is a fair critique of a judgment.” (The Hindu-19-08-20)
Allegations about high-handedness of the Executive and decline of the Judiciary
“In a democracy, sovereign power of the state rests on three pillars — legislature, executive and judiciary. Well-defined boundaries prevent encroachment by one into the area of the other. The judiciary is the trustee of democracy and fundamental rights of the people… The oath taken by every judge is inter alia of being bold and independent. The judges shall never succumb to any pressure. The public opinion reaching the judges through media reports or the utterances of influential people shall neither force them to act nor deter them from acting… The judiciary should be extremely cautious to see that it is not unwittingly lending its shoulders for somebody else’s gun to rest and fire.” (Justice R C Lahoti, former CJI in Indian Express 02-06-20)
“Blurring lines of demarcation between the government and judiciary puts such incidents in the negative spotlight and brings it under the scanner of suspicion.” (daily O 25-03-20)”In recent years, the Indian authorities have increasingly used criminal laws, including for counter-terrorism, sedition, and criminal defamation, against peaceful dissenters, journalists, rights activists, academics, and students. Scores of people have been arbitrarily arrested, prosecuted, and imprisoned in politically motivated cases.”(Human Rights Watch, New York, 19-08-20) “Hearing the plea on hate speeches by BJP leaders ahead of the Delhi riots, the Supreme Court said that it is feeling “pressure” of the circumstances and cannot “handle” the pressure.”(daily O 25-03-20)
“In their book titled, How Democracies Die, Steven Levitsky and Daniel Ziblatt, write of how “most democratic breakdowns have been caused not by generals and soldiers but by elected governments”. They document the many instances of how “elected leaders have subverted democratic institutions” across the world. This subversion is carried out by the constitutional sanction of the ballot box, and even with approval from the legislature and the judiciary. Throughout, there is always the assurance that the democratic wheels are still turning. Levitsky and Ziblatt call the leaders who thrive in such situations “elected autocrats”. Such elected autocrats weaponize institutions, to use them as political ammunition. They compel the media and the private sector into silence, and they redraft rules to suit their interests over those of their political opponents.” [Adapted from Justice A P Shah’s speech, Supreme Court in Decline: Forgotten Freedoms and Eroded Rights, at the Justice Suresh Memorial Lecture, on September 18, 2020. (The Wire 18-09-20)]
“Many columnists, leading scholars, and legal luminaries have speculated on the marked drift of the Supreme Court away from rights-based court to an executive court. Of course, to keep such a court going, a judge who is ever ready to step up to handle politically sensitive matters, and who can be relied upon to issue decisions that are in favour of the executive, is always useful. Allegations and suspicions have been voiced from within as well with Justice Kurian Joseph suggesting that the assignment of work in the Court during Justice Dipak Misra’s tenure was “remote controlled”. It is very easy for an all-powerful executive that is looking to seize control over the other arms of the state, and especially an independent judiciary. There is no need to expend energy in packing the Supreme Court with pro-government judges. Finding over 30 judges who think alike would anyway be difficult, if not impossible. All that is needed is to ensure that certain “favourable” conditions exist in the Court: these include a CJI who is on your side, and a handful of other judges on the Bench who are “reliable”. There is a tendency to view the threat to judicial independence in India as emerging from the executive branch, and occasionally the legislature. But when persons within the judiciary become pliable to the other branches, it is a different story altogether. Surely, this is as good a time as any for the judges of the Supreme Court to unite and seriously consider whether self-preservation trumps institutional independence, or whether they truly want to protect the judiciary from outside influence, and hold their own against an overbearing executive.” (Justice A.P. Shah in The Hindu 07-09-20)
“Now, though, it seems that the court is turning away from decades of its own history, and is, instead, aligning with the majoritarian view unhesitatingly and without question. Two recent cases which demonstrate this clearly are Sabarimala and Ayodhya. In the migrant workers case, though, it made the unfortunate presumption that the government is the best judge of the situation. The suo motu recognition of the issue by the court also came too late. Instead, the High Courts came across as islands of rationality, courage and compassion in these times, asking questions about migrant rights. Contrast this with the Supreme Court’s reaction to the bizarre claim of the Solicitor General who argued that the exodus of workers was due to fake news: the court accepted this, and media houses were advised to report more responsibly. The former police officer, Julio Ribeiro, has pointed to the lack of a fair investigation in the Delhi riots, drawing similarities with the 1984 riots here. He rightly said that “riots recur in India because of the impunity accorded to one section by the political establishment of the day”. Besides the various limitations of Parliament that have been revealed in recent times, it has not even met once during the COVID-19-induced lockdown, and even when it finally decided to meet, Question Hour has been scrapped.
The next characteristic contributing to the Supreme Court’s decline is in the failure to perform its fundamental role as adjudicator itself. In the Kashmir case, it has practically abdicated its role as a court. That the judiciary is failing spectacularly to remain an independent institution is evident. That the executive is in fact responsible for this is also an open secret. How the executive is doing this is also well known. There is no need to expend energy in packing the Supreme Court with pro-government judges.” [Adapted from Justice A P Shah’s speech, Supreme Court in Decline: Forgotten Freedoms and Eroded Rights, at the Justice Suresh Memorial Lecture, on September 18, 2020. (The Wire 18-09-20)]
“We have fundamental rights tightly ensconced behind seemingly impenetrable firewalls. With a parliamentary system of government, separation of powers, and a federated division of responsibilities between the centre and states, we have a system that is the envy of many. On paper, the all-powerful executive is held accountable to the people through the legislature; and to the Constitution and the rule of law, through the judiciary; and through other institutions like the Auditor General, the Election Commission, a human rights watchdog, and anti-corruption bodies, besides entities like the press, academia, and civil society. Unfortunately, remember what I said – this is all only on paper. In India today, every institution, mechanism or tool that is designed to hold the executive accountable, is being systematically destroyed. The National Human Rights Commission is dormant and appears to exist only on paper. Investigation agencies seem to be misused at the slightest opportunity. The Reserve Bank of India and the Election Commission of India appear to have been suspiciously compromised. The Central Information Commission is almost non-functional. The other authorities and institutions that could have played an important role in these times are also silent. We have heard nothing of the Lokpal.”(ibid)
“Universities are under attack daily, whether it is students being accused of rioting, or teachers being accused of criminal conspiracy. The idea of an unbiased mainstream fourth estate in India died its death a long time ago. Now, with moves like the media policy in Kashmir, the concept of an independent free media is also dying. And civil society is being slowly but surely strangled, through various ways. With only the executive conducting its operations, and with every other institution systematically side-lined, we are moving towards a form of elected autocracy. And indeed, as many scholars have reminded us time and again, this is how democracies die.”(The Wire-18-08-20)
“Parliament was always intended to function as a body that keeps the executive in check. It exercises this form of accountability on behalf of the people it represents. Tools and instruments such as questions and debates are used for this purpose. But what happens when parliament itself stops working? Besides failing to provide leadership to the people in a time of crisis, like the pandemic, it compounds the problem of representation and accountability by granting the executive a free rein to do as it pleases. Executive accountability, in these conditions, is a thing of memory, for there is no one to raise any questions about its actions.”
“Even if the executive has ensured that parliament is weakened to the point of inconsequence, one would have hoped that other entities would have stepped up to the plate and performed their duty of holding the executive accountable. Most notable amongst these, obviously, is the judiciary. We have always prided ourselves in, and boasted of, India’s independent judiciary. Despite serious aberrations in the past, such as during the Emergency, the judiciary has always somehow managed to restore the people’s faith in the institution as one that preserves sanity in the chaotic life of the Indian democracy.”
“With parliament already so weakened, the Supreme Court would have been the next best space to discuss the Kashmir trifurcation, the constitutional validity of the Citizenship (Amendment) Act, suppression and criminalisation of protests against this law, misuse of draconian laws like sedition and the Unlawful Activities (Prevention) Act, electoral bonds, etc. Sadly, most of these are ignored or brushed aside or mysteriously kept pending for an indefinite period of time. In some cases, such as that of internet access in Kashmir, the Supreme Court has all but abdicated its role as arbiter, and handed over the matter to an executive-run committee to determine. How such a committee can take an unbiased view on a review of the actions of the executive itself makes no sense at all. Indeed, these are all matters that are not being discussed in any forum of constitutional relevance. Today, the judiciary appears once again to be failing us.” [Adapted from Justice Shah’s speech, Supreme Court in Decline: Forgotten Freedoms and Eroded Rights, at the Justice Suresh Memorial Lecture, on September 18, 2020. (The Wire 18-09-20)] “Today, we have a situation which was foreseen many decades ago, by former CJI Y.V. Chandrachud, when, in 1985, he observed, “There is greater threat to the independence of the judiciary from within than without ….” All the sermonising in the world (of the sort offered in the Bhushan judgment) will be of no consequence without any real changes in the way things work.” [Justice A.P. Shah quoted in The Hindu 07-09-20)] “India’s Supreme Court has jettisoned its long history of protecting free speech by finding Prashant Bhushan guilty of criminal contempt for his social media posts,” said Meenakshi Ganguly, South Asia director, Human Rights Watch. “At a time when the space for peaceful dissent in India is fast shrinking, the Supreme Court is sending absolutely the wrong message about the importance of holding democratic institutions in a free society accountable.” (Human Rights Watch, New York, 19-08-20) “Justice Madan B Lokur awarded ‘F’ grade to the Supreme Court, from where he retired a year and half ago, disapproving the way it handled PILs seeking judicial intervention to ameliorate the pitiable plight of migrant workers caught in the pandemic caused lockdown.” (Times of India 01-06-20)
“This destruction began in 2014 when the BJP government came into power. There is a temptation to compare this with the blatant destruction that the Indira Gandhi government indulged in the past, but comparisons are odious. What we are witnessing today is a force in action strategically intending to render the Indian democratic state practically comatose, with all the power entrusted with the executive.” [Adapted from Justice A P Shah’s speech, Supreme Court in Decline: Forgotten Freedoms and Eroded Rights, at the Justice Suresh Memorial Lecture, on September 18, 2020. The Wire 18-09-20]
“On November 28, 1987, P. Shiv Shankar, a former High Court judge, delivered a speech while he was serving as the minister of law, justice and company affairs, at the Bar Council of Hyderabad that later came under the scanner for being in contempt of the Supreme Court. Some of his observations included: “The Supreme Court composed of the element from the elite class had their unconcealed sympathy for the haves i.e. the Zamindars (..)” And the bank magnates, the representa-tives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensa-tion by the intervention of the Supreme Court in Cooper‘s case. Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.”(The Wire-19-08-20)
Must turn the search light inward
“Pressure on the judiciary is the last thing our democracy needs at this point in time. It is time we understood that every institution should reaffirm their places in democracy for the sake of the Constitution. The more we become dependent on one institution and ignore others, the more pressure will build, and it will end up harming us the most.” (daily O 25-03-20) “An observation by Supreme Court itself may be particularly pertinent in the circumstances. “It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remedy less evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about them-selves. We must turn the search light inward.”(The Wire-19-08-20)
