The SC must introspect
In India’s complex institutional architecture, the judiciary occupies a special place. It is the upholder of the Constitution and the final arbiter of justice. It evokes faith due to its rigour and independence. It protects citizens from the excesses of the State, ensures that the political system cannot use an electoral mandate to change the basic structure of the Constitution, settles disputes between the Centre and states, between states, between the State and citizens, and among citizens.
These have helped reinforce the reputation of the courts, especially the Supreme Court (SC), as truly independent. And that is why it is disappointing to see SC hold senior advocate and activist Prashant Bhushan guilty of contempt. Mr Bhushan had posted two separate tweets — one in which he accused SC, and especially the past four Chief Justices of India, of aiding the “destruction” of democracy, and another in which he made a personal remark about the Chief Justice in the context of courts remaining locked down. This newspaper does not endorse the content of either of Mr Bhushan’s tweets, but the issue here is the manner in which court has dealt with the issue, which is more about individuals and less about the court itself.
There is a certain rationale for the provision of contempt. But for it to have legitimacy and effectiveness, it must be used in rare circumstances — when the State or citizens refuse to abide by the order of the court, when there is clear evidence of obstruction of justice, and when the court itself is being targeted. A 2012 United Kingdom (UK) Law Commission report provides an excellent template in this regard, where it recommended that the offence of “scandalising the court” was an infringement of freedom of expression that should not be retained; this was subsequently implemented by the UK Parliament. In India too, contempt must not apply to criticism of judges because that doesn’t necessarily mean criticism of the court. And even criticism of the court should be allowed. If citizens point out what they think is a shortcoming of the court — be it in terms of how it is prioritising cases or adopting a certain process of jurisprudence or the logical inconsistencies in a certain order — allow it. These criticisms may not always be well-reasoned or even fair, but it is through discussion in the public sphere that institutions become stronger and democracy thrives. The apex court needs to have a far more liberal interpretation of the contempt provision, even as it safeguards the sanctity of the judicial process.