Article 129 cannot be pressed into service to stifle bonafide criticism, Says Advocate Prashant Bhushan in response Notice

(Judicial Quest News Network)

The Affidavit highlights “That signs of democracy being in danger have come from no less than judges of the Supreme Court itself when in an unprecedented press conference in January, 2018, the four senior most judges of this Hon’ble Court,”‘Justices Chelameshwar, Kurien Joesph, Madan Lokur, & Ranjan Gogoi warned the citizens that”.

In his reply affidavit filed in Apex court in the Contempt case Advocate Prashant Bhushan that any crtitcism against the acts and deeds of the CJI does not scandalize or lower the authority of the Court.

At the outset, he mentions that he had sought for the copies of the original complaint of Advocate Mahek Maheshwari, which was converted into the Suo moto case, and also the administrative orders which placed the matter on the judicial side of the SC, which were denied by the Secretary-General. In the absence of those documents, Prashant Bhushan says that he is “handicapped in dealing with the contempt notice”. And ads that his reply was a preliminary one, without prejudice to his objection against non-supply of documents.

The notice is based on two tweets by me. One dated 27 .06.2020

and the other 29.06.2020.

The tweet regarding the CJI riding a motorcycle dated 29.06.2020 was made primarily to underline my anguish at the nonphysical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal.

The fact about the CJI being seen in the presence of many people without a mask was meant to highlight the incongruity of the situation where the CJI (being the administrative head of the Supreme Court) keeps the court virtually in lockdown due to COVID fears (with hardly any cases being heard and those heard also by a unsatisfactory process through video conferencing) is on the other hand seen in a public place with several people around him without a mask.

The fact that he was on a motorcycle costing 50 lakhs owned by a BJP leader had been established by documentary evidence published on social media. The fact that it was in Raj Bhavan had also been reported in various sections of the media My expressing anguish by highlighting this incongruity and the attendant facts cannot be said to constitute contempt of court.

If it were to be so regarded, it would stifle free speech and would constitute an unreasonable restriction on Article l9(1Xa) of the Constitution’ So far as the second tweet dates 27.06.2020 is concerned it has three distinct elements, each of which is my bonafide opinion about the state of affairs in the country in the past six years and the role of the Supreme Court and in particular the role of the last 4 CJIs. The first part of the tweet contains my considered opinion that democracy has been substantially destroyed in India during the last six years.

The second part is my opinion that the Supreme Court has played a substantial role in allowing the destruction of our democracy and the third part is my opinion regarding the role of the last 4 Chief Justice’s in particular in allowing it.

Such expression of opinion however outspoken, disagreeable or however unpalatable Some, cannot constitute contempt of court. This proposition has been laid down by several judgments of this court and in foreign jurisdictions such as Britain, USA and Canada.

It is the essence of a democracy that all institutions, including the judiciary function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution. I submit that my criticism has been outspoken yet it has been carefully weighed and made with the highest sense of responsibility. what I have tweeted is thus my bonafide impression about the manner and functioning of the Supreme court in the past years and especially about the role of the last 4 chief Justices have played vis a vis their role in being a check and balance on the powers of the executive, their role in ensuring that the supreme court functions in a transparent and accountable manner and was constrained to say that they, contributed to undermining democracy.

It is stated that many democracies have recognized the offence of scandalizing the court as unconstitutional and recommended the abolition of this offence “as being inconsistent with any constitutional guarantee of freedom of speech and fair trial it gives judges, alone, among public wielders of power, a special immunity from criticism and power where they sit as judges in their own cause, to punish their critics”.

“This picture of the death of democracy very much fits what we have witnessed in India. Over the last 6 years under the present government, our country has witnessed a systematic dismantling of democracy in favor of electoral authoritarianism. Democracy is not just a rule of elected majority. A rule by elected majority can be called democratic only when the majority is constrained by Some basic rules of the game ‘These Constitution provisions prevent the majority from doing whatever it might wish to do through two devices. one, there are some in violable rights of the citizens that it government cannot take away. Two, the political majority must exercise its powers through well established procedures and institutions that cannot be bypassed. The last six years have witnessed dismantling of both the constitutional rights and the

constitutionally mandated arrangement of autonomous institutions. As a result, majority rule has become a majoritarian rule; electoral democracy has degenerated into electoral authoritarianism described by the authors of ‘. How

Democracies Die”.

Bhushan has also filed another writ petition against the Secretary General of the SC, seeking to recall the contempt notice on the ground that there were procedural irregularities on the administrative side of the SC in dealing with the contempt complaint.