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

Whither Govt of India strategy to reduce import dependence on crude oil, natural gas?

By NS Venkataraman*  India presently imports around 80% of it’s crude oil requirement and around 50% of its natural gas requirements . As the domestic production of crude oil and natural gas are virtually stagnant and the domestic demand is increasing at around 7% per annum, India’s steadily increasing dependence on import of the vital energy source is a matter of high energy security concern. This is particularly so, since the price of crude oil and natural gas are considerably fluctuating / increasing in the global market due to geo political factors, which are beyond the control of India. India has promised to achieve zero emission by the year 2070, which mean that the level of emission has to start declining at slow and steady rate from now onwards. It is now well recognized that global emission is caused largely due to use of coal as fuel and natural gas as fuel and feedstock. While burning of coal as fuel cause emission of global warming carbon dioxide gas and sulphur

Muslim intellectuals met Bhagwat, extra-constitutional authority 'like Sanjay Gandhi'

By Shamsul Islam*  In a significant development a delegation of five Muslim intellectuals namely former chief election commissioner SY Quraishi; former senior bureaucrat Najeeb Jung; former AMU vice-chancellor and Lt Gen (retd) Zameer U Shah; politician-cum-journalist Shahid Siddiqui (presently with RLD); and businessman Saeed Shervani [Samajvadi Party] met RSS Supremo Mohan Bhagwat at RSS Delhi headquarters. The meeting was kept secret for reasons known to the participants and was held in August. According to the Muslim intellectuals the meeting held in “a very cordial” atmosphere continued for 75 minutes whereas time allotted was 30 minutes! In a post-meeting justification of the parleys Quraishi stated that their main concern was “the insecurity being increasingly felt by the Muslim community in the wake of recurring incidents of lynching of innocents, calls by Hindutva hotheads for genocide and the marginalisation of the community in almost every sphere”. This delegation consistin

'Massive concern for people': Modi seeking to turn India into global manufacturing hub

By Shankar Sharma*  The news item quoting Narendra Modi at the Shanghai Cooperation Organisation (SCO) meet, "Want to turn India into a manufacturing hub: PM Modi at SCO Summit" should be of massive concern to our people. One can only continue to be shocked by such policies, which can be termed as ill-conceived to say the least. Without objectively considering the environmental and social impacts on our communities in the medium to long term, such policies will also result in massive economic impacts because a lack of environmental and social perspective cannot be economically attractive either. In order to become the global manufacturing hub, India will have to meet an enormous demand for energy of various kinds, and in order to meet this much energy demand the economy has to manufacture enormous number of appliances/ gadgets/ machineries (to generate and distribute commercial forms of energy such as coal, nuclear, gas, hydro, and renewable energy (RE) sources such as so

Denying dissent democratic space in Gujarat: 'sad narrative of eroding ethical values'

By Sandeep Pandey*  A padyatra (foot march) was to be taken out between 26 September and 4 October, 2022 from Randhikpur village in Dahod district of Gujarat to Ahmedabad to apologise to Bilkis Bano. Randhikpur is Bilkis Bano’s village. In 2002 Gujarat communal violence she was gang raped, her 3 years old daughter, another child in womb and a total of 14 family members were killed. 11 people were convicted and sentenced for life in 2008. However, on 15 August, 2022 after Prime Minister Narendra Modi made a speech from Red Fort appealing to people to change their attitude towards women and treat them with respect, a district level committee of Panchmahal decided to release the 11 rapists and murderers. A Bhartiya Janata Party leader described four of these criminals as virtuous Brahmins. Before the padyatra could begin from Randhikpur, on 25 September night, 7 activists were picked up from Godhra corporator Hanif Kalandar’s house where they had gone for d

Pesticide companies' lobbying 'seriously impairing' basics of governance, regulation

Dr Narasimha Reddy Donthi*  The Indian agricultural sector is grappling with low incomes, shortage of natural resources, increasing pest incidence and low public investments in research and extension. Pest attacks are increasing. Previously unknown pests are attacking crops. Farmers, indebted as they are due to various market mechanisms, are finding it hard to protect their crop investments. Thus, farmers are pushed into the conundrum of pesticide usage by pesticide markets and companies. Pesticide usage in India is increasingly becoming a regulatory problem. Regulation has not been effective in the face of such challenges. Scientific expertise on pesticides is often subsumed in the policy tradeoffs that, in the ultimate scenario, encourage production and marketing of Highly Hazardous Pesticides (HHPs). Expert Committee reports, which are recommending withdrawal of certain HHPs, are not being acted upon. Lobbying by pesticide companies has seriously impaired the basics of governance an

Kerala health bill public hearing? Here the minister 'ensured' cameras were turned off

By Our Representative  On Friday, September 30, 2022, about 100 members of the general public gathered at the conference room of the collectorate at Ernakulam, Kerala, to express their apprehensions about the Kerala Public Health Bill, 2021, which the state assembly referred to a 15-member select committee chaired by state health and family welfare minister, Veena George. Minister Veena George asserted at the outset that this was a sitting of the select committee, and all cameras would need to be turned off. Advocate PA Pouran, general secretary of the People’s Union for Civil Liberties in Kerala, stood up in protest, arguing that the meeting was a public hearing and should ideally be televised to reach vast numbers of people. Other members of the audience protested too, but the minister insisted that the gathering was part of a sitting of the select committee.  “Why then did you invite all of us?” protested George Mathew, who had arrived from Aluva and earlier served as a member of t

How Gandhian values have become 'casualty' in India under majoritarian BJP rule

By Sandeep Pandey*  A Muslim youth was beaten recently when he tried to witness the famous garba performance during the Hindu religious nine days festival of Navratri in Gujarat. There was a time when Muslims could easily participate in Garbha events in an atmosphere of cordiality. Bilkis Bano was gang raped in 2002 Gujarat communal violence, her 3 years old daughter, the child in womb and a total of 14 family members were killed. 11 accused were awarded life term. However, recently a District level committee has decided to release all the culprits. A ruling Bhartiya Janata Party leader has described some of these criminals as virtuous Brahmins, the highest among the Hindu hierarchical caste system. In a communally polarized Gujarat today most Muslims feel offended by the decision of the government and BJP supporters either justify the release of rapists and murderers or just ignore the ignominious decision. Mahatma Gandhi came from the Guj

GoI 'feeling threatened' by forces which can potentially fight 'Brahmanical fascism'

Counterview Desk  A network of civil rights and people’s organisations , Campaign Against State Repression (CASR)*, has characterised the recently-imposed ban on Popular Front of India (PFI), National Confederation of Human Rights Organizations (NCHRO) and other organisations as “Brahmanical Hindutva fascist” move of the Government of India (GoI), calling it “onslaught on democratic dissent”. In a statement, CASR said, the move is aimed at terrorizing and vilifying the Muslim community, adding, at the same time, the GoI is curbing any protest and demonstration against the “fascist diktat of ban”, with peoplebeing “detained and arrested.” It added, “This kind of attack on right to oppose or criticize any step of government should be conceived as an attack on the very democratic values of the people.” Text : On 28 September 2022, Central Government led by BJP-RSS banned the Popular Front of India, National Confederation of Human Rights Organizations, Campus Front of India, National Wom

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".

Golwalkar's views on tricolour, martyrs, minorities, caste as per RSS archives

By Shamsul Islam*  First time in the history of independent India, the in-charge minister of the Cultural Ministry in the current Modi government, Prahlad Singh Patel, has glorified MS Golwalkar, second supremo of the RSS and the most prominent ideologue of the RSS till date, on his birth anniversary, February 19. In a tweet he wrote : “Remembering a great thinker, scholar, and remarkable leader #MSGolwalkar on his birth anniversary. His thoughts will remain a source of inspiration & continue to guide generations.”