If the Supreme Court wanted to make an example out of Prashant Bhushan to silence the rest of us, it should be reminded that research on the theory of deterrence is thin and highly contentious.
The three-judge bench, headed by Justice Arun Mishra, found him guilty of criminal contempt of court for a set of tweets he posted in late June, which according to the bench ‘scandalised the court’ and ‘interfered with the administration of justice”. The court rejected Bhushan’s argument that his tweets were merely representative of his bonafide opinion that the cessation of physical hearings had denied citizens their right to access justice and that the court had played a role in the destruction of democracy.
A few days before the verdict, in an online interview hosted by Argute in association with Kanooniyat, Prashant Bhushan had said, “In any democratic society, all institutions should be open to questions. Unless you openly discuss what is wrong with the judiciary.. how will there be any reform?”
The judgement reminds us that contempt jurisdiction is exercised “not to vindicate the dignity and honour of the individual judge,” but rather to “uphold the majesty of the law and of the administration of justice.” Contempt of this kind is based on the belief that the efficacy of the courts rely not only upon compliance of its orders, but also upon what the public thinks of it (Bhatia. 2006). In such a situation, looking fair takes precedence over being fair. But invoking contempt jurisdiction to maintain favourable public perception is counterproductive, as the more often it is invoked, the greater the adverse publicity to the judiciary (Diwan. 2006).
In reality, Contempt of Court is a self-serving mechanism that allows judges to decide precisely when the court’s dignity or authority has been lowered. Many others, before and after Bhushan’s tweets, had criticised the Supreme Court for either turning a blind eye to or putting off certain issues, including the abrogation of Section 370 and the mysterious death of Judge Loya. Considering this, one wonders whether the court has been selective in its approach to exercising its power to punish for contempt.
It would be ironic to explain to the court the significance of criticism, for it is its job to critically evaluate and criticize. Incidentally, its best criticism has come from dissenters. Justice Chelmeswar’s dissent in the NJAC case and S. Fazl Ali’s in A.K. Gopalan are fine pieces of legal and scholarly criticism. Prashant Bhushan has been a dissenter for 30 years and his protest against the status quo is a call for introspection and judicial integrity, rather than a predetermined plan to scandalise the court. He is not an enemy of the judges, he is a friend extending help. To hold him guilty for contempt is equivalent to making him walk the tightrope with a blindfold on.
All editorials are written by Tushar Kohli and his small team and represent the collective view of the Editorial Team.
