I strongly disagree with the Supreme Court's contempt case and judgment against Prashant Bhushan. I have been a signatory on a letter protesting this; many citizens, leading lawyers, and retired judges have also opposed it. The nation's respect for Prashant has gone up, and in the same proportion, the respect for the Supreme Court has gone down..I would also like to confess that though I have only been in five cases of writs and PILs, I have been threatened with contempt proceedings twice! I sincerely believe that I was right in both cases. In one of these Prashant had stood with me and my counsel, Colin Gonsalves, and had spoken so forcefully that the court chose not to proceed..In many countries, the law relating to scandalising the judiciary or lowering their prestige has been abolished. There are other countries where the courts almost do not use it..In India, there are hundreds of cases where the courts have invoked the criminal contempt provisions, and many journalists and common citizens have been charged and punished for scandalising the courts or lowering its prestige..Also Read: Will not retract tweets, will not apologize, reiterates Prashant Bhushan.In the current episode involving Prashant Bhushan, the court has achieved this objective by instituting and pursuing the contempt petition..“In our obsession for personalities, are we missing something vital?.Civil society has been stressing that Prashant's tweets and earlier comments nearly a decade earlier were a legitimate exercise of the right to free speech..There have also been comments on the fact that in one matter the court is trying to raise a decade old matter and in the case of the tweets, it is being rushed in about four weeks!.Soli Sorabjee says the court is overreacting..On the other hand, some people have also pointed out that Prashant himself had supported the sentencing Justice Karnan for contempt of court. Prashant has stated that the court's sentencing was justified..In our obsession for personalities, are we missing something vital? It cannot be denied that the issue of criminal contempt is highly subjective. Most writings where criminal contempt proceedings are initiated against citizens are much gentler than Prashant's words..Is a criminal contempt provision justified in India? It has been argued that this provision is required so that judges get the respect that will enable them to get their orders implemented..Let us now look at three sets of public servants as an example and test the principle of the respect and protection they need, to be able to discharge their duties for citizens. Let us take the elected representatives, the police, and the judges to test this principle. The elected representatives have the highest legitimacy because they subject themselves to direct approval by the citizens every five years. It can be argued that they need to be able to command respect from the citizens, without which the laws they frame will not be respected. They frame policies, which have a political and financial impact on the present as well as future generations. They must face people directly in every conceivable place and time, and if special privileges or protection against criticism is not given to them, they will not be able to discharge their functions..“The nation must use this opportunity to discuss and tell the courts that the criminal contempt provisions should be struck down. That would be a fitting outcome to this conscience raising episode..Let us now picture a policeman who must enforce the law. He again faces citizens and even enraged or inflamed mobs. But, he has to function amid all the dirt and grime to enforce the law. If citizens do not respect him or believe that he is corrupt and a criminal himself, how can he discharge his law enforcement function?.On the other hand, a judge sits in a closed and protected environment and dispenses justice to supposedly uphold the law. He is in a very safe and secure environment and discharges his functions at his own pace comfortably sitting in a chair. Yet it is argued that he needs the warm protection of the provision of criminal contempt..Also Read: Contempt Unbound: The Supreme Court on Prashant Bhushan.There are numerous laws that are in force to ensure that public servants can function effectively. The nation needs to really evaluate the chilling effect of the criminal contempt provisions on criticism and opinion sharing on the judiciary..The judiciary is probably afflicted with the same ills as the rest of the pillars of democracy. There is a possibility that the downward slide may be steeper because of the absence of monitoring and criticism due to the threat and terror of the criminal contempt provisions..The nation must use this opportunity to discuss and tell the courts that the criminal contempt provisions should be struck down. That would be a fitting outcome to this conscience raising episode..Comments have also been made about the absolute arbitrariness in the time within which two different issues of criminal contempt cases were listed. This is an aspect in the working of our courts which is routine and it is well known that cases may be heard or delayed at the will of lawyers or judges. Article 14 is daily torn to shreds in our courts..Also Read: Legal Professionals call for a review of the 'iron hand' by the Constitutional Court of India.It is well known that the rich and powerful benefit from this. Some others can catch the attention of a Prashant Bhushan, Indira Jaising, or Colin Gonsalves who work for causes. But most citizens of the nation suffer. This arbitrariness must stop..“There is a possibility that the downward slide may be steeper because of the absence of monitoring and criticism due to the threat and terror of the criminal contempt provisions..A simple solution can be to list cases by a computer program that would ensure that if any case is taking more than double the average time it should be listed on priority. This coupled with filling all sanctioned judicial positions could make our justice system fairer. The allocation of cases to judges was called to question publicly by four judges..The demand for both these can be raised now and should be argued before the court. That would be a lasting impact if the issue is put across as one of being based on principles and not only on the outstanding contribution of Prashant Bhushan. Otherwise, this event will not lead to structural changes of any lasting benefit..I am hoping the Supreme Court will decide to strike down the criminal contempt provisions and decide that the listing of cases and the allocation to specific judges would be undertaken by a computer program that could incorporate rational criterion..I hope these issues are raised when the Prashant judgment is reviewed. That would be a significant outcome of Prashant's valiant stand and the nation's outrage..(Shailesh Gandhi is a former Central Information Commissioner. Views are personal.)
