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“Critique on the Actions of a CJI does not Scandalize the Court” – Prashant Bhushan Replies in a Detailed Affidavit

“To assume or suggest that the CJI is the SC, and the SC is the CJI’ is to undermine the institution of the Supreme Court of India.”

On July 22, Supreme court had issued a notice to the lawyer Prashant Bhushan, on two of his tweets dated June 27 and June 29. The Top Court took a Suo Motu cognizance in matter after a contempt petition was filed by Mr. Mehak Maheshwari on the 21.07.2020.

Replying to the notice, the lawyer filed an affidavit on 2nd August, defending his tweets. In a comprehensive affidavit with elaborate criticism he gave his 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.

Talking first about his tweet dated 29.06.2020, regarding the Chief Justice of India, S. A. Bobde riding a motorcycle, he replied, “At the outset I admit that I did not notice that the bike was on a stand and therefore wearing a helmet was not required. I therefore regret that part of my tweet. However, I stand by the remaining part of what I have stated in my tweet. I tweeted the above because I was increasingly anguished by the lack of regular physical functioning of the court that was leading to the hearing of very few matters and that too by the unsatisfactory mode of video conferencing. Due to the COVID pandemic, the subsequent lockdown and the humanitarian crisis it had created, with the Supreme Court not functioning regularly, access to justice was seriously imperiled.”

He further added, “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 (19)(1)(a) of the Constitution.”

For his second tweet dated 27.06.20, he said that it has 3 distinct elements, “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.”

Defending his tweets, he added that such expression of opinion however outspoken, disagreeable or however unpalatable to some, cannot constitute contempt of court. He also submitted that his tweets were carefully weighed and made with the highest sense of responsibility.

He also submitted that raising issues of concern regarding the manner in which a CJI conducts himself during ‘court vacations’, or raising issues of grave concern regarding the manner in which four CJIs have used, or failed to use, their powers as ‘Master of the Roster’ to allow the spread of authoritarianism, majoritarianism, stifling of dissent, widespread political incarceration, and so on, cannot and does not amount to ‘scandalizing or lowering the authority of the court’. “To assume or suggest that the CJI is the SC, and the SC is the CJI’ is to undermine the institution of the Supreme Court of India.”

Talking about the signs of democracy being in danger, he recalled the unprecedented press conference in January, 2018, by the four senior most judges of the Supreme Court, Justices Chelameshwar, Kurien Joesph, Madan Lokur, & Ranjan Gogoi, and said that by doing so, the judges were invoking a higher principle than the one governing the everyday Code of Judicial Conduct- ‘when those who are to regulate everyone else fail to regulate themselves, then honest public criticism is the only remedy.’

He recollected the statement by Hon’ble Justice (Retd.) Kurian Joseph, on 3rd December, 2018, who then had said, “There were several instances of external influences on the working of the Supreme Court relating to allocation of cases to benches headed by select judges and appointment of judges to the Supreme Court and high courts.” ….”Someone from outside was controlling the CJI, that is what we felt. So, we met him, asked him, wrote to him to maintain independence and majesty of the Supreme Court. When all attempts failed, we decided to hold a press conference.”

Speaking on the contempt petition against his tweet, Mr. Bhushan said, “The power of contempt under Article 129 is to be utilized to aid in administration of justice and not to shut out voices that seek accountability from the Court for its errors of omissions and commissions.”

In his affidavit, he also referred to the statements of several people including former judges, over the contempt case filed against his tweet. The statements included one by Justice A.P. Shah, former chief Justice of the Delhi High Court, who in his piece in the daily newspaper, The Hindu had written, “For the supreme court of India, identifying priority cases to take up first (in a pandemic-constricted schedule) ought not to be very difficult; there are dozens of constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act, the electoral bonds matter, or the issue of habeas corpus petitions from Jammu and Kashmir.  It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrage at two tweets.”

Talking about the role of Supreme Court in allowing the destruction of democracy, he said, “The assault on the judiciary has led to the Supreme Court having virtually collapsed and it has once again failed to act as the guardian of the Constitution and custodian of fundamental rights of the people.”

The affidavit also mentions a detailed report on the tenure of last 4 Chief Justices of India. It mentions the instances where the CJI compromised the independence of the judiciary and allowed the Government to have its way. Here are some of the examples of the controversial incidences as mentioned in the affidavit-

Tenure of (Retd.) Hon’ble Chief Justice Kehar

  • Sahara Birla case
  • Kalikho Pul’s suicide note

       Tenure of (Retd.) Hon’ble chief Justice Deepak Mishra

  • Medical College Bribery Case
  • Denial of permission to the CBI to register an FIR against Justice Narayan Shukla of the Allahabad High court
  • Supreme Court Judges Press Conference
  • Impeachment
  • Judicial appointments
  • Debatable judgements in case of- Judge Loya Matter, Bhima Koregaon Case

Hon’ble Chief Justice Ranjan Gogoi’s tenure

  • Assam NRC case
  • Prioritization of cases
  • Article 370 – In an unprecedented move, the entire Constitutional scheme relating to Jammu & Kashmir was subverted by the Government without any consultations.
  • Habeus Corpus petitions
  • CBI Directors tenure curtailed
  • Ayodhya – Court by its final judgement, allowed the construction of temple using the alleged faith of one community as a judicial reasoning to triumph over the rule of law.
  • Sexual Harassment case
  • Inexplicable transfers and appointments of judges
  • Quid Pro Quo: Rajya Sabha Nomination

The tenure of the present Hon’ble Chief Justice of India Sh. Sharad Arvind Bobde

  • Nationwide Lockdown & Migrant Crisis
  • Delhi Riots
  • Attacks on Universities
  • Citizenship Amendment Act, 2OI9
  • Blockade of 4G in J&K

Concluding his affidavit, Mr. Prashant Bhushan stated, “the decisions and the inaction of the courts in dealing with some of these critical cases are enough for me to form my opinion about the role played by this Hon’ble Supreme Court in last 6 years in undermining democracy which bonafide opinion I am entitled to form, hold, & express under Article 19(1)(a).”

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