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ANNIHILATING FREEDOM OF SPEECH FOR OPINING ON JUDICIARY

A TALE OF LAURELS OR LAMENTING?

As goes the saying Devil resides in the detail, similarly something overtly conspicuous is missed when an issue utterly of relevance is given less attention than it deserves. Time and again, the year 2020 has brought before us certain revelations of lacunas our systems possess. The time when we all, through our common ascendant, vowed to the social contract theory[1], that we will together create a system wherein the leader will be led by the people as a means to do what the people want.

The basic element of such a system is that the people who elect can be freely and candidly be vocal about the flaws and the lacunas in the systems and themisdemeanour of people responsible. No office of stature is run by itself without the public servants who vow to run them. Hence, as it logically goes, the efficiency of any public job is dependent upon the public servant appurtenant thereto.

Freedom of speech as guaranteed by The Constitution under Article 19 (1)(a) submits to the need of criticism even in the highest of the public offices, be it the pillar of- Executive, Legislative or the Judiciary.

Interestingly, uncountable instances of public criticism of executive and legislature have been witnessed and adjudged by the regal minds of judiciary. But what happens when the judiciary is brought to the table, censured realistically and made answerable to the people?

The answer lies in the chronological sequence of events that unfolded in Prashant Bhushan’scontempt case…

It all started when Adv.MahekMaheswari, on9/7/2020, in order to initiatea criminal contempt proceeding against Adv. Prashant Bhushan and Twitter Indiafiled a petition[2] in the Hon’ble SC of India. She accused him of criminal contempt under the Contempt of Courts Act, 1971; emphasizing on defining criminal contempt as ‘Scandalizing the court.’Based on this, the SC initiated a suomoto contempt proceeding[3] against him. Followed by, the SC gave its prima facie view that “Bhushan’s tweets brought disrepute to justice administration & undermined dignity of CJI’s office.[4]

On 22/7/2020, SC gives contempt notice[5] to him over his tweets in his case of IN RE PRASHANT BHUSHAN & ANR.

On 1/8/2020, Adv. Bhushan and N Ram, moved SC challenging constitutionality of sec. 2 (c)(i)[6] of Contempt of Courts Act, 1971; later withdrawn. On the same date, he filed writ petition in case title Prashant Bhushan vs Secretary General Supreme Court of Indiaunder Article 32 under Article 21in the SC seeking recall of contempt notice.

To add to the doubt of everything being malice, a decade old contempt case against Mr. Bhushan was also listed with prior information of only two days; against the Handbook for Practice & Procedure in the SC. Mr. Bhushan seeked certified copy of the said administrative order but the same was rejected by an order stating Order XIII Rule 7 of SCRules, 2013.

On3/8/2020, he files reply and says his concern does not amount to contempt. And that he tweeted for his love and affection for the Court and not out of malice.

On 14/8/2020, court held that his tweets tend to shake public confidence in institution of judiciary. Also, that there is no need of taking Attorney General’s consent in suomoto contempt proceedings. The SC holds Prashant Bhushan guilty of contempt for tweets against judiciary.

He replies quoting Ghandi-

“I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose.”

He then declines SC’s offer for time to reconsider his statement.Even the Attorney General requested SC to not punish Mr. Bhushan in the contempt case.

On receiving a chance of tending an unconditional apology, he blatantly rejected saying the same would be contempt of his conscience and the SC.

The final verdict of the case was delivered on 31/8/2020, Mr. Bhushan was fined Rs. 1.

A peaceful settlement was reached.

 

Authors’ analysis

After looking into the matter holistically, the author submits –

“It is only desperation that leads to a never quenching need to by-pass the law.”

From the beginning of the proceedings, it was quite conspicuous that stealth was used as a defence by the judiciary. The evidence on record, the documents, the administrative orders were kept from Mr. Bhushan by giving desperate reasons. He being a person of exceptional legal acumen, this sort of behaviour with him is of unprecedented importance. Even the requirement of taking prior permission from the Attorney General of India was by-passed; something never happened before.

The court was in its way to find or it could be rightly said that accentuate its power in order to punish Mr. Bhushan. The same can be easily understood by the deterrence theory under the Criminal law, wherein we not only punish the accused but also set an example so that further similar incidents could be prevented beforehand.

 

In the much celebrated and insightful book named Crowds and Power by Elias Canetti, he writes-

“It is always the enemy who started it, even if he was not the first to speak out, he was certainly planning it; and if he was not actually planning it, he was thinking of it; and, if he was not thinking of it, he would have thought of it.”

Similarly, the judiciary on the onset of the first public criticism done against it by an insider person of repute shook and before such wave could upsurge; it tried to CALM down the new ripples using SUBTLE VIOLENCE.

To conclude,

A system should be brought to account whenever it acts in way which is detrimental to the expectations set up by it. The judiciary is a body of highest stature and is the sole authority imparting justice in the country. It uses the yardsticks created by the legislature to carve the distinction between an act done lawfully and an act that embarks upon the ceiling set by it.

Freedom of speech in context to executive and legislative has been discussed widely, but we as the young lawyers need to make sure that even the smaller traces of public oppression, instances of by-passing the laws by the judiciary of the country are brought to the fore, discussed widely.

If the legal fraternity fails to buy justice for itself, led to stake by the justice delivering systems themselves, then the day is not far when to dream of justice is a dream unjust…

Written by:

Chakshu Purohit

Himachal Pradesh National Law University,

Shimla

 

[1]Article 19 of the Indian Constitution, 1949 read as-

Protection of certain rights regarding freedom of speech etc.

(1) All citizens shall have the right

(a) to freedom of speech and expression;

[2]CRL. No. 1/2020

[3]IN RE PRASHANT BHUSHAN & ANR.

[4]Ibid.

[5] SCM (CRL.) No. 1/2020

[6]2 (c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which—(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court.

 

Disclaimer: The author bears sole responsibility for the accuracy of facts, opinions or view stated in the present blog.

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