THE All India Lawyers Union (AILU) has expressed its deep concern and anguish over the recent conviction of Prashant Bhushan for criminal contempt of court by the Supreme Court. The judgement sets a bad precedent and hampers free speech and fair criticism of the Supreme Court, the judiciary and its role in India’s democracy.

Judgments of the Supreme Court in several landmark cases – A K Gopalan case, bank nationalisation case, Kesavananda Bharati case, ADM Jabalpur case, Maneka Gandhi case, S R Bommai case, Fourth Judges case, privacy matter, aadhaar case, Sabarimala case, etc. -- have had an immense impact on our democracy. Whether the impact is positive or negative is only a matter of opinion. It is rather a political question than juridical. Democracy is more than periodic election and legislative supremacy. It has got substantive contents such as secularism, tolerance, freedom, reasonableness, etc. Above all, democracy cannot exist without protection of civic rights and individual human rights – these are so essential that these must be insulated from the power of the majority.

In a statement, AILU president Bikas Ranjan Bhattacharya and vice president P V Surendranath said the trajectory of law of contempt of court, as reflected in a plethora of precedence, illustrates the scary subjectivity in exercising the contempt jurisdiction. It looms large particularly in these times when members of the judiciary make subjective statements and comments which are not good for judiciary's independence.

Even though the precise formulation of Bhushan in his tweets in question is not agreeable for all, the court should not have held him guilty of contempt as it would have a chilling effect on free speech and bonafide and fair criticism of the judiciary and the Supreme Court.

Despite the Kesavananda Bharati case judgment of a 13-judge bench proclaiming the basic structure doctrine and its inalienability even by way of constitutional amendment, the Supreme Court could not protect people’s right to life and liberty under Article 21 of the Constitution during the Emergency. It declared in the ADM Jabalpur case by a majority that during the Emergency, people’s right to life under Article 21 cannot be agitated before the Supreme Court even under Article 32 of the Constitution and the Supreme Court is incapable of protecting such rights. Justice H R Khanna dissented holding that no presidential order of Emergency can touch Articles 21 and 32 of the Constitution and the right to life under Article 21 can be agitated before the Supreme Court and protected under Article 32 of the Constitution. He paid the price. It is history.

Now, the Supreme Court in the Prashant Bhushan contempt judgement observes: “It is common knowledge, the Emergency era has been considered as the blackest era in the history of Indian democracy.” But in the ADM Jabalpur case, the Supreme Court never said so. The Supreme Court by majority was protecting the executive in their gross violation of democracy, right to life and personal liberty, including free speech. The ADM Jabalpur case was overruled only in the privacy judgment of the Supreme Court, almost after 40 years, in the year 2015. So, necessarily, no student of the Constitution, democracy and politics can escape from close scrutiny and examination of the role of the judiciary and the Supreme Court in democracy in India. Ultimately it will be a political opinion which could not be interdicted as role of the Supreme Court or its chief justices and judges are referred to.

Just like the observation of the Supreme Court that it is common knowledge that the Emergency era has been considered as the darkest era in the history of Indian democracy, one of the tweets of Prashant Bhushan – "When historians in future look back at the last six 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 for CJIs – is only an opinion.

In the contempt judgment, the Supreme Court says that "we are not concerned with the first part of the tweet since it is not concerned with this court". The court also held, "We don't want to go into the truthfulness or otherwise of the first part of the tweet in as much as we don't want to convert these proceedings into a platform for political debate.” So, ultimately whether there has been destruction of democracy in India during the last six years even without a formal emergency is a political question and political opinion protected by freedom of expression and free speech under Article 19(1) of the Constitution of India, by which bona-fide, fair criticism of the Supreme Court, its judges and the judiciary is protected.

As Krishna Iyer observed, in Re S Mulgaokar case, “Court should be willing to ignore by a majestic liberalism, trifling and venial offences.”

The best way to sustain the dignity and respect for the office of judge is to deserve respect from the public at large by fearlessness and objectivity of the approach to the issues coming for decision, quality of the judgment, restraint, dignity and decorum of a judge observed in judicial conduct off and on the bench and rectitude. Court can uphold the dignity of courts and majesty of judges on broad shoulders and shrug off comments.

A strong, independent and fearless bar is precondition for an independent and strong judiciary. As Justice Krishna Iyer observed: if judges have frailties, after all they are human, they need to be corrected by independent criticism. If the judicature has serious shortcomings which demand systematic correction through social oriented reform initiated through constructive criticism, the contempt power should not be an interdict. All this, far from undermining the confidence of the people in courts, enhances it and in the last analysis cannot be repressed by in indiscriminate resort to contempt law. Even body like the Law Commission or the Law Institute and researchers, legal and sociological, run contempt risks because their professional work may sometimes involve unpleasant criticism of judges, judicial process and the system itself and they hover perilously around the periphery of the law if widely construed. Creative legal journalism and activist statemanship for judicial reform cannot be jeopardised by any undefined apprehension of contempt action.

The AILU being an organisation committed to democracy, freedom of expression, free speech, liberty, rule of law and independence of judiciary is very much concerned about the judgment and its negative and chilling impact on bonafide and fair criticism of the judiciary and hope that this may trigger an informed debate over abolition of the criminal contempt under the Contempt of Courts Act and undefined unregulated contempt jurisdiction of the Supreme Court under Article 129 of the Constitution of India. “We hope that the Supreme Court itself would recall the judgment by any curative process – review or otherwise,” the lawyers’ body said.

In a separate statement issued on August 18, various trade unions from Maharashtra under the banner of Kamgar  Sangathana Samyukta Kruti Samiti, comprising HMS,        INTUC, CITU, NTUI, AITUC, TUCI, AIUTUC and AICCTU, have appealed the Supreme Court to recall the order against  Prashant Bhushan, and noted that it is less the tweets of Prashant Bhushan that tend to put the Supreme Court into disrepute but the very judgement against him.