The Supreme Court on Wednesday reserved its order in the suo motu contempt case initiated against advocate Prashant Bhushan for allegedly bringing disrepute to the institution through two of his tweets, legal news website BarandBench.com has reported.
The Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari heard the matter at length before reserving its order.
Senior Counsel Dushyant Dave, arguing for Bhushan, reiterated the stand taken in the written reply filed before the Supreme Court. He added that neither of the tweets in question hamper the administration of justice.
Dave read out a critique of the ‘ADM Jabalpur’ verdict where the judges were personally criticized in an Indian Express piece. "Even in that case, though extremely uncharitable remarks about judges were made, no contempt proceedings were made out".
In order to buttress his case, Dave said that the tweets by Bhushan were aimed at encouraging the judiciary. The court, however, opined that in a case of this nature, there are no winners and every side loses.
Fair criticism is not wrong, Dave argued before the court and cited cases not only from India, but also from the UK to support his argument. Dave asserted that the administration of justice stands on a stronger foundation and did not come under attack in Bhushan's tweets.
"Nobody can claim to be infallible, including the judges," Dave said.
Dave also pointed out that in addition to Bhushan, many individuals had taken to Twitter to comment or remark on the viral picture of CJI SA Bobde on a motorcycle, and as such, singling out Bhushan and initiating contempt proceedings against him ought not to be done.
"Hundreds of people tweeted after the photo was clicked of the CJI riding the bike. Is the court going to charge all with contempt of court?" he said.
Dave then pointed out that Bhushan had consistently, over the years, intervened in cases, leading to many issues coming to light. He cited the examples of the Coalgate and 2G scams.
As Dave beseeched the court not to proceed with contempt against Bhushan, the Bench asked, "Why is the mask and bike being combined with justice?"
If former judges can criticize the institute then why cannot Mr Bhushan? Dave sought to argue that Bhushan's criticism of the individual Chief Justices was in relation to those individuals alone and when allegations are made against the apex court, they cannot be silenced. Dave cited the January 2018 press conference of judges as an example where the criticism against the members of the judiciary had been made public.
Dave also raised the case concerning the sexual harassment allegations made against former Chief Justice of India, Justice Ranjan Gogoi. He pointed out that these allegations were made by a staffer. There were counter allegations made against the staffer earlier which have now been dropped and she has been reinstated into service now, Dave pointed out.
There was contempt of court initiated against that complainant, Dave said stressing further that Bhushan was referring to instances of individual and specific CJIs.
Dave argued, "...If somebody talks about it then you cannot issue contempt against them. No institution should be free from criticism. People were worried and concerned in the backdrop of these instances. Bhushan was talking about individual chief justices..."
In his reply to the court through a 142-page affidavit, Bhushan explained in detail why his tweets - the reason why contempt proceedings were initiated against him - are justified and cannot be considered contempt of court.
He says that his tweet on CJI Bobde appearing in a picture on a motorcycle without a helmet or a mask was a mere expression of his anguish with an intention to highlight the incongruity of the situation. As far as the tweet on the role of the last four CJIs is concerned, Bhushan says that he was expressing his bona fide opinion about the state of affairs.
Along with the reply, Bhushan also moved the Supreme Court challenging the action of its Secretary-General to list the contempt petition filed against him on the judicial side, without the consent of the Attorney General.
The petition has been filed In the wake of the Supreme Court issuing notice to Bhushan in contempt of court proceedings initiated against him, based on a plea moved by one Mahek Maheshwari.
Maheshwari's petition was defective to the extent that it was lacking consent from the Attorney General or Solicitor General, as is required under the law for initiating contempt of court proceedings.
On the administrative side, upon receiving this petition from Maheshwari, the Secretary General ought to have returned the same to Maheshwari for want of consent from the law officers in line with the mandate of Section 15 of the Contempt of Courts Act 1971 and Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court 1975, Bhushan's petition says.
Although the court today declined to entertain this Writ petition on the grounds that all the laws had "meticulously" been followed on the administrative side of the court also and as such the court was not inclined to place the matter before another Bench.
On July 22, the court had issued notice to Prashant Bhushan, Attorney General KK Venugopal and Twitter Inc after taking suo motu cognizance of tweets by Bhushan on June 27 and 29. The first tweet pertained to Bhushan’s commentary on a picture of Chief Justice of India SA Bobde on a high-end motorcycle, whereas in the second, Bhushan expressed his opinion on the role of last four CJIs amid the state of affairs in the country.
Soon after the court issued notice, the social media platform withheld both the tweets till the pendency of the matter in court.
Senior Counsel Sajan Poovayya representing the social media platform, today told the Court that the tweets were withheld by the platform because the court had taken suo motu action in the case and notice was issued. He argued that the platform ought not to have been made a party in the case.
Poovayya said, "After your notice we withheld the tweets in question. If it was a regular petition, we would not have come, but this is a suo motu proceeding. I should not have been impleaded at all. Mahek Maheshwari impleaded me and thus I am in this case now."