Skip to main content

When sitting SC judges were called ‘cowards’ for their order during Emergency

Prashant Bhushan
Counterview Desk
Pointing towards why well-known advocate Prashant Bhushan drew a parallel with the way the Supreme Court has been acting today with the apex's ways during the Indira Gandhi-imposed emergency (1975-77), the civil rights group Citizens for Democracy (CFD) has said that it wasn’t without reason Justice VM Tarkunde (retd), the then CFD general secretary pointed towards ‘judicial suicide’ in an article published in the June 1976 issue of ‘The Radical Humanist’.
CFD in a statement* cites Tarkunde as stating that the majority judgement by the apex court on April 28, 1976 – which said that if the executive violates the rule of law and deprives any person of life or personal liberty by a grossly malafide action, neither the aggrieved party nor the judiciary can do anything in the matter – would be termed as “the blackest day in the judicial history of India.”

Text:

It is a matter of grave concern that the Supreme Court has held the well known lawyer Prashant Bhushan guilty of contempt of court on account of his two tweets. The judgment of the Supreme Court is an assault on the freedom of speech.
Prashant had tweeted two tweets; in the first tweet dated June 27, 2020 he said, “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, and more particularly the role of the last 4 CJIs.”
The second June 29 tweet included a photo of CJI SA Bobde riding a Harley Davidson motorcycle, and it was said, “CJI rides a 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!”
Supreme Court held that the tweets have the effect of destabilising the very foundation of this important pillar of the Indian democracy and it has to be dealt with iron hand. It further said that it took umbrage at Bhushan linking the Supreme Court to an ‘Emergency-like situation’ and thus held his tweets false, malicious and scandalous.
However, the Supreme Court seems to be unaware that it is not only Prashant Bhushan who is linking the functioning of the present Supreme Court to an ‘emergency’- like situation but large number of people are making this comparison. During the said ‘emergency’ (June 1975-March 1977) the fundamental rights of the citizens were suspended and those who criticized the moves of the government were sent to jail under the Maintenance of Internal Security Act,1971 (MISA).
At present large number of citizens who criticize the government are being arrested on one pretext or the other without formal declaration of ‘emergency’. Though such arrests are not on the same scale as that of emergency, but the methodology and arbitrariness is the same and authoritarian trends are clearly visible. Most of them are unable to get any relief from the courts, as happened in the ‘emergency’. Habeas corpus petitions of Kashmiri citizens are pending undecided in the Supreme Court for an year.
During emergency large number of detainees had filed habeas corpus petitions in different high courts on the ground that their detention was malafide. This contention was upheld by seven high courts but the Government challenged the said decisions before the Supreme Court which with majority of four to one reversed the orders of the high courts on April 28, 1976, what has come to be known as ADM Jabalpur Versus Shukla case (AIR 1976 SC 1207) holding that if the executive violates the rule of law and deprives any person of life or personal liberty by a grossly malafide action, neither the aggrieved party nor the judiciary can do anything in the matter.
Prashant Bhushan's tweets ought to have been ignored. Holding him guilty and awarding him any punishment are not going to do any service to the administration of justice
Justice VM Tarkunde (retd), the then General Secretary of the Citizens For Democracy (CFD), immediately wrote an article ‘Judicial Suicide’, published in the June 1976 issue of ‘The Radical Humanist’, stating that the day April 28, 1976 would become known as the blackest day in the judicial history of India.
He further wrote: 
“Since maintenance of the rule of law is the sole function of the judiciary, a declaration by the Supreme Court of its inability to discharge that function in the critical area of executive encroachment on personal liberty can legitimately be described as little short of judicial suicide.”
The copies of that issue were sent to each judge of the Supreme Court and to all the chief justices of the high courts.
That judgment in ADM Jabalpur case had angered large number of people. When the emergency was revoked, some advocates had issued statements while Bar Association of Bombay High Court had passed a resolution declaring that that the four judges who delivered the majority judgment were ‘cowards’. These statements were published in some newspapers.
The said four judges were still sitting judges in the Supreme Court. A contempt of court petition was filed. The majority of two judges (Untwala and Kailasam JJ) disposed of the matter observing: “This is not a fit case where formal proceeding should be drawn up.”
Chief Justice Beg who was one of the four judges in the ADM Jabalpur case and was of the opinion that a case of contempt had been made out also signed the majority judgment stating, “However, as two of my learned brethren are of the view that we should ignore even such news items and not proceed further, I can do no more than to state the reasons for my dissent before signing a common order dropping these proceedings” (AIR 1978 SC 489: Shri Sham Lal Vs. Unknown).
Same approach was shown by the other benches of the Supreme Court relating to such statements.
The then judges exhibited a dignified approach in ignoring the said contemptuous statements calling the sitting judges as ‘cowards’. The judgment in ADM Jabalpur case has been regarded as the most shameful one in the judicial history of India and has recently been over-ruled.
At present serious issues of public importance such as challenge to Citizenship Amendment Act, 2019, the abrogation of Articles 370 and 35-A of the Constitution, several habeas corpus petitions etc. are pending in the Supreme Court. It is unfortunate that the Supreme Court took umbrage when Prashant Bhushan tried to link the present functioning of the Supreme Court to the ‘emergency-like’ situation.
The tweets ought to have been ignored. Holding him guilty and awarding him any punishment are not going to do any service to the administration of justice or enhance the majesty of law. The tweets made by Prashant Bhushan were expression of anguish felt by thousands of victimized citizens who are at the receiving end of the brutal state power and who cry and hope for judicial protection.
The people look upon the Supreme Court as citadel of justice and bulwark of democracy. We hope and pray that the Supreme Court will continue to play its assigned role with fearlessness, fairness and objectivity. We urge upon the Hon’ble Court to ignore the tweets and recall its decision holding Prashant Bhushan guilty.
---
*Signatories: SR Hiremath, chairperson, Citizens for Democracy; ND Pancholi, general secretary; Anil Sinha, Manimala, Arun Maji, secretaries; Prof Arun Kumar, Prof Ramendra Nath, Ramsharan, Shalu Nigam, Ramesh Awasthi, Mahipal Singh, executive members

Comments

TRENDING

Swami Vivekananda's views on caste and sexuality were 'painfully' regressive

By Bhaskar Sur* Swami Vivekananda now belongs more to the modern Hindu mythology than reality. It makes a daunting job to discover the real human being who knew unemployment, humiliation of losing a teaching job for 'incompetence', longed in vain for the bliss of a happy conjugal life only to suffer the consequent frustration.

How lead petitioner was rendered homeless when GM mustard matter came up in SC

By Rosamma Thomas*  On January 5, 2023, the Supreme Court stayed a December 20, 2022 direction of the Uttarakhand High Court to the Indian Railways and the district administration of Haldwani to use paramilitary forces to evict thousands of poor families occupying land that belonged to the railways.  Justice AS Oka remarked that it was not right to order the bringing in of paramilitary forces. The SC held that even those who had no rights, but were living there for years, needed to be rehabilitated. On December 21, 2022, just as she was getting ready to celebrate Christmas, researcher Aruna Rodrigues was abruptly evicted from her home in Mhow Cantonment, Madhya Pradesh – no eviction notice was served, and nearly 30 Indian Army soldiers bearing arms were part of the eviction process. What is noteworthy in this case is that the records establishing possession of the house date back to 1892 – the title deed with the name of Dr VP Cardoza, Rodrigues’ great grandfather, is dated November 14

Savarkar 'criminally betrayed' Netaji and his INA by siding with the British rulers

By Shamsul Islam* RSS-BJP rulers of India have been trying to show off as great fans of Netaji. But Indians must know what role ideological parents of today's RSS/BJP played against Netaji and Indian National Army (INA). The Hindu Mahasabha and RSS which always had prominent lawyers on their rolls made no attempt to defend the INA accused at Red Fort trials.

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Tax buoyancy claims when less than 4% Indian dollar millionaires pay income tax

By Prasanna Mohanty  In FY18, the last year for which disaggregated income tax data is available, only 29,002 ITRs declared income above Rs 5 crore, while Credit Suisse said India had 7.25 lakh dollar millionaires (the wealth equivalent of Rs 8 crore and above) that year. Often enough, the Centre claims that demonetization in 2016 raised tax collections, improved tax efficiency, and expanded the tax base. Now RBI Monetary Policy Committee (MPC) member Ashima Goyal has also joined their ranks, attributing the “claims” of rising tax collections in the current fiscal year to “tax buoyancy” brought by the demonetisation . Do such claims have any basis in official records? The answer is unequivocal. The budget documents show the tax-to-GDP ratio (direct plus indirect tax) increased from 10.6% in FY16 (pre-demonetization) to 11.2% in FY17, remained there in FY18 (demonetization and GST fiscals), and then fell to 9.9% in FY20. In FY22, it improved to 10.8% and is estimated to drop to 10.7% in

Gandhian unease at Mahadev Desai book launch: Sabarmati Ashram may lose free space

By Rajiv Shah  A simmering apprehension has gripped the Gandhians who continue to be trustees of the Sabarmati Ashram: the “limited freedom” to express one’s views under the Modi dispensation still available at the place which Mahatma Gandhi made his home from 1917 to 1930 may soon be taken away. Also known as Harijan Ashram, a meeting held for introducing yet-to-be-released book, “Mahadev Desai: Mahatma Gandhi's Frontline Reporter”, saw speaker and after speaker point towards “narrowing space” in Gujarat for Gandhians (as also others) to express themselves. Penned by veteran journalist Nachiketa Desai, grandson of Mahadev Desai, while the book was planned to be released on January 1 and the meeting saw several prominent personalities, including actor-director Nandita Das, her scholar-mother Varsha Das, British House of Lords member Bhikhu Parekh, among others, speak glowingly about the effort put in for bringing out the book, exchanges between speakers suggested it should be rele

Why no information with Assam state agency about female rhino poaching for a year?

By Nava Thakuria   According to official claims, incidents of poaching related to rhinoceros in various forest reserves of Assam in northeast India have decreased drastically. Brutal laws against the poachers, strengthening of ground staff inside the protected forest areas and increasing public awareness in the fringe localities of national parks and wildlife sanctuaries across the State are the reasons cited for positively impacting the mission to save the one-horned rhinos. Officials records suggest, only two rhinos were poached in Kaziranga National Park and Tiger Reserve since 1 January 2021 till date. The last incident took place probably in the last week of December 2021, as a decomposed carcass of a fully-grown (around 30 years old) female rhino was recovered inside the world-famous forest reserve next month. As the precious horn was missing, for which the gigantic animal was apparently hunted down, it could not be a natural death. Ironically, however, it was not confirmed when

Civil rights leaders allege corporate loot of resources, suppression of democratic rights

By Our Representative  Civil rights activists have alleged, quoting top intelligence officers as also multiple international forensic reports, that recent developments with regard to the Bhima Koregaon and the Citizenship Amendment Act-National Register of Citizens (CAA-NRC) cases suggest, there was "no connection between the Elgaar Parishad event and the Bhima Koregaon violence." Activists of the Campaign Against State Repression (CASR) told a media event at the HKS Surjeet Bhawan, New Delhi, that, despite this, several political prisoners continue to be behind bars on being accused under the anti-terror the draconian Unlawful Activities (Prevention) Act. Addressed by family members of the political prisoners, academics, as well as social activists, it was highlighted how cases were sought to be fabricated against progressive individuals, democratic activists and intellectuals, who spoke out against "corporate loot of Indian resources, suppression of basic democratic

Kerala natural rubber producers 'squeezed', attend to their plight: Govt of India told

By Rosamma Thomas   Babu Joseph, general secretary of the National Federation of Rubber Producers Societies (NFRPS) at a recent discussion at Mahatma Gandhi University, Kottayam, explained that it is high time the Union government paid greater heed to the troubles plaguing the rubber production sector in India – rubber is a strategic product, important for the military establishment and for industry, since natural rubber is still used in the manufacture of tyres for large vehicles and aeroplanes. Synthetic rubber is now quite widespread, but styrene, which is used in making synthetic rubber and plastics, and also butadiene, another major constituent of synthetic rubber, are both hazardous. Prolonged exposure to these even in recycled rubber can cause neurological damage. Kerala produces the bulk of India’s natural rubber. In 2019-20, Kerala’s share in the national production of rubber was over 74%. Over 20% of the gross cropped area in the state is under rubber cultivation, with total

Bangladesh 'rights violations': US softens stance, fears increased clout of China, India

By Tilottama Rani Charulata*  In December 2021, in addition to the Rapid Action Battalion (RAB), the United States imposed sanctions on seven former and current officers of the force, alleging serious human rights violations. Benazir Ahmed and former RAB-7 commander Miftah Uddin Ahmed were banned from entering the US. RAB as an institution was also canceled the support it was getting from the US and its allies. At the same time, those under the ban have been notified of confiscation of assets held abroad. The anti-crime and anti-terrorism unit of the Bangladesh Police, RAB is the elite force consisting of members of the Bangladesh Army, Bangladesh Police, Bangladesh Navy, Bangladesh Air Force, Border Guard Bangladesh, Bangladesh Civil Service and Bangladesh Ansar, and has been criticized by rights groups for its use of extrajudicial killings and is accused of forced disappearances. The government of Bangladesh has been insisting about lifting the ban on RAB, but the US had till recen