In light of the recent contempt proceedings initiated against Advocate Prashant Bhushan by the Supreme Court for his tweets on the CJI, many former government officers, activists, and academics have released a statement expressing solidarity with Bhushan. They have expressed concern over the stifling of criticism and stated; “An institution as important as the Supreme Court of a country must be open to public discussion without the fear of retribution or action of criminal contempt”.
The offence of contempt of court criminalizes any expression/act which ‘tends to scandalise’ or ‘lower the authority’ of any court. It has been argued that criminal contempt, on the ground of scandalising or lowering the authority of a court, is necessary for the effective administration and deliverance of justice as it ensures that the sanctity of the courts is preserved. However, it has also been recognised by scholars and activists that this offence is sometimes used as an excessive and arbitrary constraint on the freedom of speech and expression. Moreover, it has been used to shy away from questions on the transparency and accountability of the judiciary.
Whenever questions on the impartiality of law and the judiciary are raised, there is a troubling pattern of activists and their lawyers being charged with ‘contempt of court’. This provision has often been used against Left critics and activists; from EMS Namboodiripad to Arundathi Roy to, most recently, Prashant Bhushan.
The eminent lawyer, Ram Jethmalani, had argued that the power of courts to punish for contempt imposes “a fetter on a citizen’s fundamental right to freedom of speech and would have to be invoked and exercised with utmost caution so as not to infringe upon such a fundamental right” (emphasis added). However, the judiciary has been extremely alert in picking up activists for casting any allegations on the sanctity of the courts.
When Harsh Mander had approached the Supreme Court seeking FIRs to be registered against BJP leaders like Kapil Mishra for hate speech (which instigated communal violence), the Court instead asked for transcripts of a speech Mander had made at an anti-CAA protest. After the Solicitor General claimed that Mander had made a speech which “brings the Court into disrepute”, the Chief Justice of India (CJI) without even hearing the speech, reprimanded Mander stating: “If this is what you feel about the Court, then we will have to decide what to do about you”. “Till we sort this out we will not hear you”, the Court told Mander, refusing to hear his petition on the hate speech by BJP leaders.
This hostility towards activists extends to the lawyers representing them too. For instance, in Karnataka, bar associations had passed resolutions that they will not represent students accused of sedition. In such a situation, the lawyers who do take up these cases risk facing hostility from their own colleagues, let alone other political forces.
In a similar incident, two social workers from Jan Jagaran Shakti Sangathan (JJSS) and the rape survivor they were assisting were also charged with contempt of court by a Magistrate in Araria, Bihar and sent to jail. This excessively harsh treatment towards citizens and public-interest minded actors is an increasingly worrying trend.
The recent statement issued by former officials and activists in solidarity with Prashant Bhushan also pointed out; “In the past few years, serious questions have been raised about the reluctance of the Supreme Court to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights of people by the state”.
Over the past year, we can trace some important milestones – the abrogation of Article 370 (Kashmir), the Ayodhya verdict, the Citizenship Amendment Act (CAA), North-East Delhi riots, and the COVID-19 migrant workers crisis.
It has almost been a year since the abrogation of Article 370, yet petitions challenging its constitutional validity have not been heard. The CAA too has been challenged as unconstitutional, but despite months of nation-wide protests, the Court has placed this legal issue on the back-burner. In the Ayodhya case, however, the Supreme Court conducted daily hearings for over five weeks. Perhaps this should offer us hope; where there is a will, there is a way.
When the North-East Delhi communal violence erupted in late-February, Justice Muralidhar of the Delhi High Court heard urgent petitions at midnight and passed orders that the Delhi Police must ensure safe passage to injured victims. He stated; “In this city, we shouldn’t allow another 1984 [anti-Sikh riots], not under the watch of this court”. The next day, Justice Muralidhar was transferred out of the Delhi High Court.
In these pandemic-stricken times too, criticism of the courts’ inaction and apathy towards migrant workers has come from its own quarters; from former judges and eminent lawyers. We must take this as a reminder that fair criticism of the judiciary is essential and necessary in a democracy, as it plays a vital role in impressing upon the judiciary their duty to ensure the fundamental rights of all persons.