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Withdraw criminal contempt against Prashant Bhushan: Plea to Supreme Court judges

Justice SA Bobde, advocate Prashant Bhushan
Counterview Desk
As many as 131 concerned citizens in a solidarity statement with top Supreme Court (SC) advocate Prashant Bhushan on the initiation of criminal contempt proceedings against him over two controversial tweets, have said that this has come about amidst “serious questions” having been raised on SC’s reluctance to play its constitutionally mandated role.
Especially referring to the SC’s alleged inability to “check on governmental excesses and violations of fundamental rights”, the statement, signed among others by senior SC advocates, top academics, retired civil servants and human rights activists, says, initiation of contempt proceedings against Bhushan, appears to be an attempt at stifling criticism, not just by Bhushan but by all stakeholders in the Indian democratic and constitutional setup.
While both the tweets have been withheld by the micro blogging site, one of them took exception to Supreme Court chief justice SA Bobde sitting atop a “Rs 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice."
The second tweet said the last four chief justices of India would be judged by history for destroying democracy “without a formal Emergency.” Suggesting that there is nothing objectionable in any of these tweets, which just express a public concern, the signatories said, the Supreme Court should be “open to public discussion without the fear of retribution or action of criminal contempt.”

Text:

We the undersigned citizens of the country, express our concern with the initiation of contempt proceedings against human right activist and advocate Prashant Bhushan, by the Supreme Court of India, in respect of two of his tweets. Mr Bhushan has been a relentless crusader for the rights of the weakest sections of our society and has spent his career in pro bono legal service to those who do not have ready access to justice.
He has fought cases at the Apex Court on issues ranging from environmental protection, human rights, civil liberties, corruption in high places and has been an outspoken champion for judicial accountability and reforms, especially in the higher judiciary.
In the past few years, serious questions have been raised about the reluctance of the Supreme Court to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights of people by the state. These questions have been raised by all sections of society -- media, academics, civil society organisations, members of the legal fraternity and even by sitting and retired judges of the Supreme Court itself.
Most recently, the Supreme Court’s reluctance to intervene in a timely manner to avert the migrant crisis during the lockdown came under intense public scrutiny. Concerns have also been raised regarding the decision of the court to not restart physical hearings, even in a limited manner, despite passage of five months since the onset of the Covid pandemic.
Criminal contempt as an offence has been circumscribed and made redundant in most functioning democracies, such as the USA and the UK
We urge the Hon’ble judges of the Supreme Court to take note of these concerns and engage with the public in an open and transparent manner. The initiation of contempt proceedings against Mr Bhushan who had articulated some of these concerns in his tweets, appears to be an attempt at stifling such criticism, not just by Mr Bhushan but by all stakeholders in the Indian democratic and constitutional setup. We believe the institution must address these genuine concerns.
Justice Bobde "riding" Harley bike: Cause of Bhushan tweet
An institution as important as the Supreme Court of a country must be open to public discussion without the fear of retribution or action of criminal contempt. Indeed, criminal contempt as an offence has been circumscribed and made redundant in most functioning democracies, such as the USA and the UK.
In the landmark US Supreme Court judgement in New York Times v LB Sullivan 11 L’ed (2nd) 686, with respect to contempt of court and the freedom of speech and expression it was held:
“Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. This is true even though the utterance contains half-truth and misinformation”. Even in India, the principle that criticism of the judiciary should not be stifled by the indiscriminate use of the power of contempt has been recognized by the Supreme Court as well as by academics and advocates of repute, such as the late Senior Advocate Shri Vinod A Bobde who had stated (“Scandals and Scandalising”, (2003) 8 SCC Jour 32):
“We cannot countenance a situation where citizens live in fear of the Court’s arbitrary power to punish for contempt for words of criticism on the conduct of judges, in or out of court.” Therefore in the interest of justice and fairness and to maintain the dignity of the Supreme Court of India, we urge the Court to reconsider its decision to initiate suo-moto contempt proceedings against Mr Bhushan and to withdraw the same at the earliest.
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