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Supreme Court needs to rise above this

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

This is nothing but an avoidable self-inflicted wound on the top court. It was quite unnecessary for the Supreme Court to have initiated contempt proceedings against Prashant Bhushan, the senior lawyer before the apex court for his allegedly ‘scandalous tweets”. In one of his tweets on 27 June, 2020 Bhushan had written about the “role of the Supreme Court” in the “destruction” of democracy during the last six years, and had also mentioned the “role of the last 4 CJIs” in it. In another tweet on 29 June, Bhushan had commented on Bobde astride a Harley Davidson bike. He had questioned the CJI for riding a bike without a helmet and a face mask while “he keeps the SC in lockdown mode”. This is not the first time that son Prashant has been in the eye of the storm.

Even earlier contempt proceedings against Mr Prashant Bhushan were instituted for his following statement in an interview to Tehelka: “In my view, out of the last 16 to 17 Chief Justices, half have been corrupt. I can’t prove this, though we had evidence against Punchhi, Anand, and Sabharwal on the basis of which we sought their impeachment”. Mr Shanti Bhushan backed his son’s statement by affirming in his affidavit that, out of the last 16 Chief Justices at the time of the impugned interview,

Mr Shanti Bhushan concluded his affidavit by saying…since the applicant is publicly stating that out of the last sixteen Chief Justices of India, eight of them were definitely corrupt, the applicant also needs to be added as a respondent to this contempt petition so that he is also suitably punished for this contempt. The applicant would consider it a great honour to spend time in jail for making an effort to get for the people of India an honest and clean judiciary. That the applicant also submits that since the questions arising in this case affects the judiciary as a whole, the petition needs to be decided by the entire court and not merely by three judges handpicked by a Chief Justice.

It may have been extremely graceful of the Supreme Court to have ignored his tweets which were meant to be provocative. Prashant has possibly achieved the purpose he set out to get the eyeballs of the top court. The Supreme Court of India is the ‘most powerful  institution in the world’ said the late, lamented Associate Justice Antonin Scalia of the SCOTUS. Not for its power to wield the contempt  power, but for the sweep and its limitless remit to take on causes and issue directions. The Supreme  Court surely does not need this power of contempt vis a vis ‘scandalising the institution and interfering with the course of administration for  justice’, vindicate its honour.’ It should rely on its performance’ as Justice Cardozo said.   

Justice Felix Frankfurter said, “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt”.  “Justice V R Krishna Iyer put it beautifully. “The judicature is a noble and never a nocent institution. If you goofily debunk and unjustly bring the judiciary into disrepute, you judges commit contempt and get punished. The court is a magnanimous institution, majestic and glorious, and it sustains the confidence of the nation.”

Remember after the Spycatcher judgment the British media banner headlined the photographs of the Judges upside down “You Fools”. Fali S Nariman the jurist asked one of the judges, why they did not initiate contempt against the media, the reply, “it is just an opinion. We do not agree.”.

Now read what Justice Hugo Black of the US Supreme Court had to say, “ The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt, much more than it would enhance respect.”

We can add more of  the same. The point is that the Supreme Court must be a large hearted  institution to ignore such slights. Be it Arundhati Roy or Prashant Bushan or these usual suspects, they revel in taking on the institution. It has become a past time for these characters. They love the attention. “Adverse publicity is publicity too”, said Tom Friedman. It is oxygen to these folks to carry on their tirades and trolls. They would  in the least be perturbed by such notices. On the other hand, they may wholeheartedly welcome it. That is shame, but that is how it is.

Even if they are fined and/or  incarcerated, there would be no contrition. It may harden their stances to come back with more, as if they have been vindicated. The institution does not need the power of contempt of this genre, to protect its majesty. Several prominent citizens in the land have urged the Supreme  Court to drop the proceedings. I join them, not as an eminent citizen but as an officer of the court that the these proceedings do not enhance the majesty of the institution one bit, for its needs none of it. Per contra, it is offering avoidable ammunition  for the likes of these alleged contemners who love to  revel in such indulgences. Proceeding against them and punishing them bestows them with an aura and a credibility or martyrdom, they surely do not deserve.

(Narasimhan Vijayaraghavan-Author is practising advocate in the Madras High Court)   

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Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

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