If you don't discuss corruption, how will you reform the judiciary? Prashant Bhushan

If you don't discuss corruption, how will you reform the judiciary? Prashant Bhushan

During this interview with Bar & Bench, Advocate Prashant Bhushan also observed that under the Contempt of Courts Act, the judges are the accusers, prosecutors and judges in their own cause.

Debayan Roy

A day after the Supreme Court Bench headed by Justice Arun Mishra imposed a Rs 1 fine on Advocate Prashant Bhushan for his tweets critiquing the judiciary, the lawyer in an interview to Bar & Bench said that "confidence of people in the judiciary cannot be maintained by shutting down people who are pointing towards corruption in the judiciary."

Prashant Bhushan interview with Bar & Bench
Prashant Bhushan interview with Bar & Bench

The contempt case against Bhushan over two of his tweets criticising the judiciary came to an end of sorts after the Supreme Court opted to show "magnanimity" by letting Bhushan off with a fine of Rs 1.

In its 82-page judgment, the Bench has emphasised that it is "not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice", but rather that it is choosing not to retaliate.

However, Advocate Bhushan maintains that it was time that some court in the country strikes down Section 2(1)(c) of the Contempt of Courts Act, 1971

Edited excerpts from the video interview with Bar & Bench's Debayan Roy follow:

Let us go back to the day when the Supreme Court took suo motu cognizance of the tweets. What was your mindset at the time of posting those tweets? Did you ever think you would be hauled up for contempt?

Firstly, I said in the last six years, democracy has been substantially destroyed in this country during this Modi regime and that the Supreme Court has played a role in allowing this destruction to take place. In particular, the role of the last four Chief Justices. That was a very well-considered tweet and I did not tweet that carelessly or absent-mindedly because I thought this is exactly what has happened over the last few years. This is my view and there are others who may disagree with me.

I did not think it constituted any contempt, but I know that there are people in my family and my friends who have been apprehensive that since I have been speaking quite openly and candidly about what has happened to the Court or the Judiciary, they may haul me up for contempt. However, I told them that it was not contempt at all, and that if I am not going to speak about what is happening to and in the courts, then who will? This needs to be said by somebody and I should be able to do it.

Why do you think the Court imposed the one-rupee fine? Was it more symbolic just to show that you have been convicted?

I found it a little surprising as most of the judgment is strong and vicious against me. Therefore, in the end, the fine of one rupee seems a little incongruous to the rest of the judgment.

Debarment could not have taken place without giving specific notice to me. However, in my view, such a punishment cannot be given under the Contempt of Courts Act certainly for freedom of speech. Speech can be only restricted by reasonable restrictions imposed by law. The law here is the Contempt of Courts Act and this Act states six months in prison or up to Rs 2,000 as fine. Therefore any other punishment is completely contrary to Article 19 (1) (a) of the Constitution.

There are still discussions that you should not have paid the one rupee fine and that this deposit implies acceptance of guilt. What do you have to say about that?

It certainly does not show any acceptance of guilt. The fine will be paid under protest subject to my right of review, writ petition, etc. In any case, I have to submit to whatever penalty they impose. Now those who were saying that I should not pay the fine and should go to jail are seeming to tell me that I was itching to go to jail. I was not itching to go to jail, but prepared to go to jail if that was the penalty.

Is a review petition against the judgment in the works?

The review, as well as the writ petition, is in the works. We will ask for an intra-court appeal or at least the conversion of a review into appeal to be heard by different judges. The Supreme Court has held that at least one appeal against a criminal conviction is a fundamental right under Article 21. Therefore, they have to devise an intra-court appeal for an original conviction for criminal contempt by the Supreme Court.

How much of a bearing do you think the Attorney General’s suggestion to the Court to drop the contempt case against you had on the sentencing verdict?

I don't know how much of a bearing it had, but I was certainly very gratified to find that the Attorney General virtually came to my defence. After a long time, we saw an Attorney General behaving like a Constitutional authority, giving his independent views and not as an officer of the government. I was certainly gratified.

Do you think another Bench would have dealt with this matter differently?

Yes, possibly. I had written to the CJI that Justice Arun Mishra had accused me of contempt of court on three different occasions just because I suggested that it was not fit for a particular judge to hear a particular case. He said that it was contempt and imposed a fine of Rs 25 lakh on CJAR for contempt.

I had also tweeted once earlier that he had invited Mr. Shivraj Singh Chouhan to his residence for the wedding of his nephew at a time when the Birla-Sahara case involving Chouhan was pending in his court. Thus, I felt that there was a reasonable apprehension of bias on my part and, therefore, that the CJI should transfer the case to some other bench. But unfortunately, that plea was not heeded by the CJI.

You said that the verdict is a watershed moment in the history of freedom of speech and expression in India. How so?

This case became important for two reasons. It brought the spotlight on what I had said in my tweet about what happened to democracy in the last six years and what the role of Supreme Court had been in that. It emboldened a lot of people to retweet the same tweet with the same statement, stating that if the Court holds me guilty of contempt, then they should also be held guilty of contempt.

It came to be seen by people as an attempt to muzzle my voice and it somehow created that defiance in the minds of people, saying: 'it is alright - here is one person who has been pulled up for speaking truth to power and is not willing to be muzzled'. Thus, they are also not willing to be muzzled. Hence, they too shall speak truth to power. In this sense, it became a watershed moment.

The petition filed by yourself, N Ram, and Arun Shourie challenging Section 2(c)(i) of the Contempt of Courts Act was withdrawn. Could you give reasons for the withdrawal?

Yes, because it was listed before Justice Arun Mishra, who had made his views absolutely and abundantly clear. It was no use in pursuing that case. It was originally listed before Justice DY Chandrachud, and thereafter, it was deliberately withdrawn from his court and listed before Justice Arun Mishra, though it had nothing integrally connected between that petition and the contempt cases against me.

Do you think courts today are in a position to strike down this particular Section of the Contempt of Courts Act? Do you see a possibility of this Section to be struck down in the near future to come?

Well, it should be struck down and it is withdrawn from all civilized countries in the world. Usually, any criticism of the court or the judges amounts to 'scandalizing the court' and thus invokes a jurisdiction where the judges sit in their own cause.

They are the accuser, they are the prosecutor and they are the judges in the same matter. It is an unreasonable restriction on freedom of speech and, therefore, it should be struck down and soon some court in India strikes it down.

This was certainly not your first brush with contempt before the Supreme Court. How do you see the other case panning out?

There are important questions there like whether the opinion to the extent of corruption in the judiciary would amount to contempt? See, if you want to assess what is happening to the judiciary or the state of the judiciary, you have to discuss what you feel about corruption in the judiciary.

However, Justice Arun Mishra's oral pronouncement seems to suggest that even if someone saying in their perception that there is corruption in the judiciary, it would amount to contempt. Now, if you don't discuss corruption, how will you reform the judiciary?

Transparency International had done a study about corruption perception in different institutions. It came to the conclusion that the judiciary was perceived to be the most corrupt after the police.

The confidence of people in the judiciary cannot be maintained by shutting down people who are pointing towards corruption in the judiciary. The confidence of the people is not shaken by unfair criticism with malafide intention. It is seen for what it is. It is only when the criticism cuts to the bone and is made in a responsible way, then the confidence of the people may be shaken. But it needs to be shaken because unless people see what is the true state of affairs, there will not be any reform.

There have been comparisons drawn between your contempt case and that of Justice Karnan, who was sentenced to six months in jail. While you had the backing of a large part of the Bar and civil society, hardly anyone spoke in defence of Justice Karnan. What do you think are the reasons for that?

In my view, these are completely different cases. In my case, I was being charged with contempt for having expressed my bona fide views about the state of affairs in the judiciary. Justice Karnan was charged with contempt for having abused his judicial office and issued orders that Supreme Court judges should be arrested and produced before him.

He was clearly interfering with the administration of justice. Criminal contempt is of two kinds, one is interfering with the administration of justice and the other is scandalizing the court. However, its an open question of whether he should have been imprisoned or not. However, he should have been prevented from what he was doing and stripped of his office, but maybe he shouldn't have been imprisoned.

If criticizing the Court or its functioning is met with contempt proceedings, then what is the alternative method to have a constructive discussion about the Supreme Court?

For any frank discussion about the judiciary, with a view to reforming the judiciary, you need a frank expression of opinion about what is wrong or correct in the judiciary. If you say that this is wrong or there is corruption or judges have lost their independence and if this regarded as contempt, then there can be no discussion or reform of the judiciary. The pre-requisite of reform is free and fair discussion.

Any parting thoughts on Justice Arun Mishra as he retires from the office today?

I read that Dushyant Dave, President of SCBA was prevented from speaking at the farewell. It was unfortunate that he could not speak as he only wanted to wish him well. In the same vein, I too wish him well.

However, I feel retiring judges, especially those who have involved in a lot of politically sensitive cases in which the government had a stake, should not accept any post-retiral jobs in which the government plays any role. I hope that Justice Mishra is not offered nor he accepts any post retiral jobs in which the government has to play any role.

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