‘If Former Judges Can Criticise The Supreme Court, Why Not Bhushan’, Says Dushyant Dave
Advocate Prashant Bhushan’s tweets, which prompted a contempt notice against him by the Supreme Court, do not qualify as contempt and were a well-intentioned critique, Dushyant Dave argued in court on Wednesday.
Arguing on behalf of Bhushan, senior advocate Dushyant Dave questioned the direction of the court to list the matter for hearing saying it was based on a petition which was defective in as much as it did not have the required consent of the Attorney General of India or the Solicitor General. The petition by the lawyer should not have been placed for consideration on the administrative side, argued Dave.
Bhushan also sought the transfer of the case to a separate bench which was declined by the bench headed by Justice Arun Mishra.
Bhushan’s Tweets Are Not Against The Institution, Dave Argued
In its July 22 order, the apex court had taken a prima facie view that Bhushan’s statements on Twitter have brought disrepute to the administration of justice and are capable of undermining the dignity and authority of the institution of the Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.
Defending Bhushan’s tweet which pertained to a picture of the Chief Justice of India sitting on a bike, Dave told the court that there were many users who commented on it and asked if the court is going to charge all of them with contempt.
Dave emphasised that there is a right to criticise fairly and cited a case in the U.K. where a newspaper carried a caricature of the judges drawn upside down and yet, it didn’t attract any contempt action. He referred to instances and precedents from the U.K., where harsh and outspoken criticism of the judges was condoned by the judiciary, treating them as part of free speech, Live Law reported.
Dave also pointed to instances in India where the judiciary was criticised and yet, the court chose not to issue a contempt notice. An article in the Indian Express, he said, on an earlier judgment of the court (ADM Jabaplur case) had made "extremely uncharitable personal remarks against judges” but no contempt was made out.
In this case, Bhushan was not questioning the integrity of the judges and his criticism was due to his love for the institution, he added.
Tweet on CJI on a bike was to express anguish at the restricted functioning of the court and his concern about the health of the CJI who was seen without wearing a mask.Live Law reported Dave’s argument defending the first tweet by Bhushan which led to the contempt notice.
The second tweet, which attracted the contempt notice, relates to Bhushan’s comments on the last four Chief Justices of the top court.
“When historians in future look back at the last six years to see how democracy has been destroyed in India even without a formal emergency, they will particularly mark the role of the Supreme Court in this destruction & more particularly the role of the last 4 CJIs.’’ – Prashant Bhushan’s tweet.
Defending this tweet, Dave referred to instances where the apex court was criticised by others, including former judges of the court. ‘’If former judges can criticise the institute then why not Mr. Bhushan?’’ he asked.
The bench then inquired from Dave if he was referring to the press conference by four sitting judges of the court in January 2018. The press conference was justified, Dave said, and asked the bench if whatever was said in it can be taken up as contempt.
He also brought up the handling of the sexual harassment allegations against the then Chief Justice of India Justice Ranjan Gogoi.
‘’The Supreme Court has taken back the woman who raised sexual harassment charges against a former Chief Justice of India. What does that mean? It says there was truth in her allegations .Your Lordships may look at the case against Prashant Bhushan in the same light. She (the alleged victim) was reinstated and all the charges against her were dropped. It only clearly shows that she was speaking the truth. Was any contempt issued against her? What kind of impression does it give to the world?”- Dushyant Dave’s Arguments In SC
The decision of Justice Gogoi to take up a Rajya Sabha berth was also highlighted during the hearing.
“A judge sits on a Saturday in his own case regarding sexual harassment. He hears cases such as Rafale, Ayodhya and CBI director cases and subsequently gets a seat in the Rajya Sabha with Z-plus category security. What impression does it give? These are serious issues that strike at the core of the judiciary.’’ - Dushyant Dave’s Arguments In SC
Dave also mentioned allegations that politically sensitive cases are assigned to select benches and pointed, as an example, that Justice Nariman never gets assigned any such cases. To this, the bench said Justice Nariman was part of a number of Constitutional bench cases. Dave reiterated that he was talking about politically sensitive cases.
He requested the court to not proceed with the case and said Bhushan’s tweets were in the nature of criticism and needed to be taken objectively. He also highlighted Bhushan’s past work to show his bona fide. Bhushan’s role in the 2G and coal scam cases led to unearthing of many facts, he added.
Perhaps you (bench) would have given him Padma Vibushan for the work in the last 30 years! I pray that you do not proceed in this case.Dave told the bench headed by Justice Arun Mishra.
Senior Advocate Sajan Poovayya appearing for Twitter Inc. told the court that his client was a intermediary in the case and should not have been impleaded. Poovayya also informed the bench that Twitter disabled the tweets by Bhushan after the top court issued notice in the case.
After Poovayya completed his arguments, the bench reserved the order. Attorney General KK Venugopal was also present during the hearing as the bench had issued notice to him and had asked him to assist in the case. The bench said they will hear the AG if they feel the need to do so.
(With inputs from Live Law and Bar & Bench who live tweeted the court proceedings.)