Members of Bar Association at Chennai have written a detailed letter to the Chief Justice of India in Prashant Bhushan’s contempt case. They express their deep anguish with Bhushan’s conviction in the contempt case for expressing his opinion about the court’s functioning. They argue that the court has not exercised caution, wisdom and circumspection, as is mandated by the law, in ascertaining criminal contempt.
“The judiciary is not an elected body, yet its legitimacy is enhanced by public accountability.”, says the letter. It identifies lawyers as strackholders in the justice delivery system who possess a duty to scrutinise court functioning. They state, “The opinions expressed by a fearless Bar actually benefits the judiciary, as it has no mechanism to learn about the people’s opinion of its functioning. The judiciary does not function in a vacuum but in a political system impacting the lives of millions”.
An active bar contributes to an independence judicial system and Rule of Law. “No system can thrive without ‘nay’ sayers, for often progressive reforms have emerged out of dissent.”, says the letter.
The letter lists comments by former judges that highlight a decline in Supreme Court’s constitutional role as checkers of executive excesses and protectors of fundamental rights. The lawyers recall the unprecedented Press Conference held by four sitting Supreme Court judges on 12.01.2018. Drawing a parallel between these comments and Bhushan’s comments, the letter argues that these instances too were made in public interest about the court’s functioning. “The Supreme Court has rightly not viewed them with disfavour.”, they say.
The lawyers repose their faith in the judiciary. They say, “We as lawyers practising in Courts believe that the Supreme Court rests on surer foundations of Constitutionalism and will not wither in the heat of comments, rather will be responsive and thus reinforce people’s faith.”
Expressing their anguish and dismay, they feel disturbed by the court’s action against Bhushan. They argue “His Tweets only reflect what other commentators have said. It is therefore rather alarming that the Supreme Court has found him guilty of contempt holding that his Tweets cannot be said to be “fair criticism”.”.
They call the proceedings a ‘travesty of justice’. Calling it a gross imbalance, they say “In the very nature of things, a criminal contempt creates a stifling atmosphere for the respondent, because the Court is the complainant/victim, the prosecutor and the judge”.
The lawyers bring to the courts notice that the UK abolished ‘scandalising the judiciary” as a form of contempt in 2013. In questioning the guilty verdict, they note “There is no discussion in the judgment as to how the action is found to be “malicious”. If the facts/ reports, etc. detailed in the reply affidavit exist, how can an opinion based thereon lack bona fides, though the opinion may be divergent from what the judges may think?” They allege that the court has not followed procedural safeguards to ensure a fair trial.
“Since the judgment does not provide answers to several questions regarding adherence to procedural safeguards and there is no means of our intervening in the case, we deem it necessary to raise these issues before you.” said the lawyers.