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

Buddhist shrines massively destroyed by Brahmanical rulers in "pre-Islamic" era: Historian DN Jha's survey

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".

India sees 62 journo deaths, 4th highest, amidst pandemic: Swiss media rights body

By Our Representative The Switzerland-based media rights body Press Emblem Campaign (PEC) has noted that India is the fourth most affected country as far as mediapersons’ death on account of Covid-19 is concerned. According to Blaise Lempen, secretary-general of PEC, the global tally of casualties among media persons in the Covid-19 pandemic has reached 1,036 journalists in 73 countries till date.

Liberating Bengal Hindus? Worst flames of communal division, lessons from the past

By Shamsul Islam*  The whole thrust of the RSS-BJP election campaign for 2021 state assembly elections in West Bengal has been to save Bengal from the rule of Mamata Bannerjee who is allegedly not a ‘Hindu’. Prime Minister Narendra Modi, a self-proclaimed Hindu nationalist, as usual set the polarizing agenda. While addressing the first election rally, he called upon the electorate to overthrow the ‘nirmam’ (cruel) rule of Mamata by showing a ‘Ram Card’. He did not name Hindus directly but there was no confusion about the religious identity of the electorate Indian PM was addressing to.

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.

Rs 5 crore 'demand' for India Today anchor: What about 52 lesser souls who died in April?

By Vidya Bhushan Rawat*  A well known Hindutva protagonist masquerading as journalist passed away recently resulting in messages of condolences and tribute right from the Prime Minister and the Home Minister to progressive liberals expressing grief of his untimely death. It is said that he passed away due to cardiac arrest, though the fact is, he was also Covid infected. The Prime Minister and the Home Minister termed him a ‘brave’ journalist, insisting, his passing away has left a big ‘vacuum’.

Modi's Hindutva 'ensuring' empowerment of rich, disenfranchisement of poor

Bhabani Shankar Nayak*  The Hindutva socio-psychopaths are neither nationalists nor patriotic people. These medieval reactionary forces don’t understand the idea of citizenship, justice, liberty, equality and humanism. Indian democracy is merely an electoral transaction for the Hindutva forces. Hindutva forces neither follow science nor understand the sufferings of fellow human beings. These core qualities are common among the Hindutva forces in India.

Pradeep Bhattacharya, who spent his life for the cause of working masses, rational thinking

By YS Gill*  At 11:30 pm on May 3, 2021, I lost my best friend and comrade Pradeep Bhattacharya. He spent his life dedicated to the cause of the working masses and rational thinking. A person of thorough scientific outlook and a well-read student of Marxian thought, he was a walking encyclopedia and could speak on a wide variety of topics from art and culture to science, philosophy, history and politics.

Communal rhetoric? Hindutva preached by RSS-BJP is 'monolithic', not Hinduism

By Prem Verma*  I am a devout Hindu but not a believer of RSS Hindutva form of Hinduism which brings about hatred of other religions. My Hindu religion has not taught me to look down on other religions and neither has it instilled in me to go about converting others to my religion because my religion is superior.

India's Covid-19 'nightmare': A product of majoritarian Hindutva ideological praxis?

By Bhabani Shankar Nayak*  Indians struggle to find place and time to bury their dead due to the devastating effects of the second wave of Covid-19 in India. The crematoriums in the capital cities are overflowing with dead bodies. People are dying without oxygen and basic medical support. The cities like Delhi and Mumbai are struggling to cope with the rising number of infections and COVID-19 led deaths. The deaths and destitutions are products of a defunct BJP government led by Narendra Modi.

Indian media persons collapsing to Covid disease as fast as 3 per day, third highest

Yogesh Sharma, Shailesh Rawal  By Our Representative  The Switzerland based media rights and safety body, Press Emblem Campaign ( PEC ) has said that it is “alarming for Indian journalists”, who have lost at least 107 colleagues to Covid-19”, noting, Indian “journo-colleagues” have been collapsing to the Covid-19 complications now as fast as three scribes per day. In a statement, PEC said, “India with 107 media corona-casualties has already placed itself on the third position just below Brazil (181 dead) and Peru (140) in the list of Covid-19 victims among journalist.”