On the eve of the 74th Independence Day, the Supreme Court of India reignited a longstanding debate by holding senior advocate Prashant Bhushan guilty of contempt for his recent comments on the state of judiciary in the country.
The crux of the SC’s observations is as follows: (a) the allegations were made against a judge as a judge and not as an individual and, therefore, would have an adverse effect on the administration of justice; and (b) it was part of a calculated attempt to obstruct or destroy the judicial process.
Two questions arise from the order. The larger question is the relevance of an archaic law like this in a democratic set-up, because it brings into play the overriding right of freedom of expression guaranteed in the Constitution.
The second question flows from the general belief that the Supreme Court is the last resort for citizens who seek to guard the values of the Constitution.
Our Constitution has given us a noble institution in the form of the Supreme Court to protect citizens from the excesses of either the Executive or the Legislature. But aberrations do occur and it is more than likely that there could be flaws and shortcomings even in the functioning of the judicature. Public criticism, then, is the only option left for course correction.
We would like to quote here what Justice V R Krishna Iyer said in 1977 in a case involving a publication in Indian Express: “Personal protection of a libeled judge and obstruction of public justice and community’s confidence is a great process. The former is not contempt, the latter is, although overlapping spaces abound.”
The SC, in our view, is not an institution whose image can be lowered by a few tweets or comments by any individual, irrespective of their standing.
Lord Denning recorded what Lord Shawcross said about one of his judgments: “Denning is an Ass.”
The Times (of London) published it but Lord Denning, one of the best judges of the Commonwealth, declined to take contempt action because his view was that he should disprove it not by contempt proceedings but by means of performance.
My Lords, we believe the same logic applies to Your Honour as well.