The Supreme Court, on Wednesday, reserved its verdict on the contempt case initiated against lawyer Prashant Bhushan for posting two tweets in June, one of which accused the judiciary of destroying democracy and the other criticised Chief Justice of India (CJI) SA Bobde for keeping the courts shut during the Covid-19 lockdown.
A three-judge bench headed by justice Arun Mishra heard Bhushan’s counsel, senior advocate Dushyant Dave, before reserving its order. Attorney general KK Venugopal was also present at the hearing although he did not make any arguments.
“Heard the senior counsel appearing in the matter. Arguments concluded. Judgment reserved,” the bench, which also comprised justices BR Gavai and Krishna Murari, said.
The court also dismissed a petition filed by Bhushan against the secretary general of the Supreme Court alleging that court procedures were not followed while listing the contempt case against him. This petition was heard on Wednesday along with the contempt case.
The apex court , on Tuesday, heard and reserved its verdict in another contempt case against Bhushan over a statement made in 2009 that many past CJIs had been corrupt. That case was listed by the top court after more than eight years.
The top court had issued notice suo motu (on its own) to Bhushan on July 22 over the two tweets and directed him to respond by Wednesday. The first tweet of June 27, which was reproduced in the court order of July 22, said: “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.”
The second tweet of June 29 referred to CJI Bobde. It was also cited in the order and said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”
Bhushan filed an affidavit on August 2, stating that his tweets fell within the domain of free speech and expression of opinion, however outspoken, disagreeable or unpalatable to some, cannot constitute contempt of court.
Dave argued on Wednesday that Bhushan was exercising his freedom of speech and giving his opinion about the functioning of the court and that would not amount to obstruction of justice necessitating contempt of court proceedings.
“Neither of the tweets can be said to cause interference or obstruction to administration of justice,” Dave said.
Dave also referred to Bhushan’s contributions towards public interest litigation and his role in exposing various corruption scandals before the court.
“Hundreds of cases have been brought to court’s notice by Mr. Bhushan. This court has appreciated his work on so many occasions — 2G licenses, coal block allocation, mining in forests etc. If he (Bhushan) makes a mistake, will you initiate contempt proceedings against him? His remarks are only for betterment of court,” Dave submitted.
With specific reference to the June 27 tweet, Dave argued that it was not contemptuous but was only Bhushan’s opinion about the court which is widely held by many people.
“It is his opinion. In that regard I would say that the four CJIs were conservative in their approach towards executive actions,” Dave said.
“But it was not a criticism of any judgment of court , which is permissible. It is about the Supreme Court and four CJIs. It said that we have lost our independence,” justice Arun Mishra said.
“The tweet is about the judicial approach adopted by the Supreme Court and the four CJIs,” Dave responded.
Regarding the tweet of June 29 about CJI, Dave said that scores of people had tweeted the photograph of the CJI on the bike. “Somebody said ‘Justice is riding on a bike’. Are Your Lordships going to call them all?” Dave asked.
Dave also made some critical submissions on the functioning of the court.
“If judges (of Supreme Court) can criticize the institution, then why not Mr Bhushan?,” he said in a veiled reference to the press conference held by four judges of the Supreme court in January 2018 against the functioning of justice Dipak Misra, who was then the CJI.
“Are you referring to the press conference?” justice Arun Mishra queried.
“Holding of press conference was justified. Can you hold the judges (who held the press conference) in contempt?” Dave responded.
Dave also referred to the sexual harassment case against former CJI Ranjan Gogoi, pointing out that the victim, a Supreme Court employee who was terminated from service after she complained against Gogoi in 2019, was subsequently reinstated by the Supreme Court with full back wages.
“Does that not mean she was speaking the truth? The judge sat on a Saturday to hear the case on sexual harassment against himself. Judgments like Rafale and Ayodhya are delivered and the CJI later gets a Rajya Sabha seat and plush bungalow. What impression does it give?” Dave asked
The top court in December 2018 dismissed petitions seeking a court-monitored probe into the Rs 59,000 crore contract for Rafale fighter planes made by Dassault Aviation of France. In November last year, the Supreme Court cleared the way for the construction of a Ram Temple at a disputed site at Ayodhya.
Dave also demanded to know why certain judges of the Supreme Court are never assigned politically sensitive cases.
“Justice Rohinton Nariman, for example, never gets assigned such matters,” Dave said
Jutice Mishra pointed out that justice Nariman has been part of many Constitution bench cases.
“I meant politically sensitive cases. Not Constitution bench,” Dave said.