On Monday, India’s top court ordered prominent lawyer and civil rights activist Prashan Bhushan, 63, to pay a symbolic fine of one rupee, less than two cents, after convicting him for criminal contempt for tweets posted in August. The tweets in question criticized the Supreme Court’s chief justice and claimed the country’s court played a role in “how democracy has been destroyed in India” since Prime Minister Narendra Modi’s assumption of power in 2014. The second tweet was a photo of the chief justice posing on a Harley-Davidson motorcycle free of a face mask or a helmet, with Bhushan accusing him of “denying citizens their fundamental right to access justice” while the court’s work is diminished during the COVID-19 pandemic. During the hearing, which took place in early August, the court claimed that Bhushan’s tweets worked “to shake the confidence of the public” and rebuked him for a “calculated attack on the very foundation of the institution of the judiciary.”
The court found Bhushan guilty on August 14 but delayed sentencing for several days as public pressure against them continued to grow. The Supreme Court sought an unconditional apology from Bhushan before handing down the verdict, claiming the tweets were derogatory, but Bhushan refused, maintaining his belief in what he tweeted. “I do not seek and ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment the court may impose,” Bhushan said, quoting Mahatma Gandhi in his August 20 response to the court. He said that the tweets, since removed by Twitter, revealed his “bona fide beliefs,” going on to say that the right to free speech guarantees the ability to criticize members of the judiciary. The Supreme Court called Bhushan’s response “even more derogatory” than the initial tweets, and that if Bhushan failed to pay the one rupee fine by September 15, he would face three months in prison. Bhushan said he will “respectfully pay the fine,” but that he still maintains his right to challenge the decision and seek judicial review.
After the verdict, nearly three thousand retired judges, lawyers, and prominent Indian citizens questioned the conviction, saying that the court’s decision to find Bhushan guilty of contempt had a “chilling effect on people expressing critical views on functioning of the top court” and that “[s]tifling of criticism by stakeholders does not bode well for any institution, especially the highest court in the country.” Other reactions span a range of opinions given that the case has proven polarizing for much of the Indian population, proving that the judiciary is a divisive issue, explaining why these issues persist. Prashant Bhushan is one of the country’s most respected public interest lawyers and activists, having practiced at the Supreme Court and Delhi High court for three decades. “I have consistently taken up many issues of public interest concerning the health of our democracy and its institutions and in particular the functioning of our judiciary and especially its accountability,” Mr. Bhushan told the court in a recent affidavit. Bhushan has been involved in a campaign for accountability in the judiciary since 1991, with the mission to “generate public opinion for putting in place credible legal institutions and mechanisms that ensure that the judiciary functions in a more transparent and accountable manner.” In this way, accountability within the judiciary is not a new issue in India. Still, the country’s Supreme Court is one of the most powerful globally, leading to the power struggle that exists.
Bhushan presented a comprehensive 142-page defence to the court, saying that the “signs of democracy being in danger have pointed out by no less than the judges of the Supreme Court itself,” which the court responded to with a 108-page-long judgment in which they described the tweets as “a malicious scurrilous, calculated attack on the very foundation of the institution of the judiciary and thereby damaging the very foundation of the democracy.” However, the court itself is playing this destructive role of which they are accusing citizens. The problem became so severe in recent years that in 2018, the four most senior Supreme Court judges held a press conference in which they told reporters that then-chief justice Dipak Misra ignored rules and assigned cases according to his personal preferences, warning that India’s democracy was directly threatened by how the court was being run. In that way, most of India’s citizens are aware of the judiciary’s faults and that danger that poses to their society, but no one has really been able to find an effective way to check that power. The court has been convicting and jailing people for exercising their free speech for years, with another example being Booker prize-winning author Arundhati Roy who served a symbolic day in prison for a similar contempt of court charge in 2002.
Looking at Bhushan’s case specifically, India has some of the most stringent contempt of court laws in the world. According to their laws, someone can be held guilty of contempt if she or he “scandalizes or tends to scandalize or lowers the authority of any court, interferes with judicial proceedings or obstructs the administration of justice.” A professor of law in the country, Faizan Mustafa, explains that the law is problematic at its core because “judge himself acts as a prosecutor and victim, and starts with the presumption of guilt rather than innocence.” This is the primary problem that Bhushan’s case unveils in the way India’s court currently delivers justice. It puts the judge in the middle of the case, making it impossible to act in an objective and ethical manner. They are no longer just overseeing and arbitrating the case; they are now the case. This dynamic, compounded with the fact that there are instances of corruption and overstepping of powers throughout the rest of the judiciary, spells trouble for the administration of justice and, as a result, democracy in India. Free speech is essential to any purportedly free democracy, but just saying there is free speech while punishing people for exercising it is the sign of authoritarianism. When an already powerful institution continues to amass and exercise almost unlimited power, it can be challenging for ordinary citizens and those subjected to its power, such as Bhushan, to do anything to stop it.
To fully solve the problem here, there needs to be significant reviews and amendments to the laws currently in place regarding contempt of court, free speech, and the judiciary’s place in Indian society. The issue here becomes the fact that the judiciary certainly would not act to limit their own power, making this issue a bit more complex and volatile, given that a judicial body would typically be the authority to turn to in such a case. What is promising is that the outcry against Bhushan’s conviction has come from all levels and been quite forceful. Public opinion and outrage forced the court to delay their sentencing of Bhushan, showing that, at least at some level, they recognize the power of the people and do not want to destabilize the situation altogether. As such, perhaps the best way to combat the judiciary’s amassing of power and convictions of people exercising their right to free speech is for the continued public decrying of Bhushan’s guilty verdict and the operation of the courts. Do not allow the issue to fall to the wayside; rather, make it something that must be addressed and discussed every day. Creating a united front and movement supporting free speech is not something the courts can ignore for very long, as they lose their power as soon as they become widely viewed as illegitimate.
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