It is ironic that I had to ‘strategize’ my words while writing about freedom of speech. The verdict of the Supreme Court against prominent lawyer Prashant Bhushan raises concerns regarding legitimate criticism. Freedom of speech and expression is one of the most indispensable rights for the functioning of a democracy which seems to be challenged presently. It is extremely essential that one can question the people in power, and criticize the functioning of authorities, in order to ensure a healthy democracy.
The Supreme Court’s conviction of Advocate Prashant Bhushan has come under the lens. Prashant Bhushan was held guilty by the Supreme Court under the charge of criminal contempt of the court, for his two tweets against CJI Bobde and the former Supreme Court chief justices. In his first tweet, Bhushan commented on CJI Bobde’s photo riding a Harley Davidson bike. In his second tweet, he criticized the former Chief Justices of the Supreme Court.
What makes me apprehensive is how the prevailing authorities of India use the clause of ‘reasonable restrictions’ under Article 19(2), seemingly to their convenience. The clause comes into applicability when there is criticism against the authorities in power. It reflects sheer intolerance of the judiciary to any kind of dissent expressed by the public.
The stance of the court, that Bhushan’s tweet ‘lowers the dignity of the court’, seems overly exaggerated. Moreover, when any remark is expressed against an individual Supreme Court judge, it can be heard by a different bench of judges at the Supreme Court. However, when the court is treating these statements to be contempt against the court and lowering the dignity of the institution as a whole then should the judges of the apex court hear the case?
“In this, the judge acts as a prosecutor, accuser and a judge,” Prashant Bhushan said during a webinar. It seems arbitrary that the apex court of the country, against whom tweets have been made by Bhushan, gets to hear the case as well as take a decision with regard to this. The Supreme Court here seems to be in the shoes of the petitioner as well as the judge. This violates the very essential principle of natural justice—nemo judex in causa sua (no one should be a judge in their own cause). The practice of acting a judge in their own case provides the judiciary with unreasonable absolute privilege.
The apex court imposed a fine of Re 1 on Bhushan as a punishment for his ‘offence.’ Bhushan has filed a fresh writ petition in the Supreme Court challenging the absence of an intra-court appeal against a judgement in suo moto criminal contempt case under Article 129 of the Constitution. He has also requested the court to have a different bench for hearing the review petition.
What seems incongruous is the interpretation of the clause ‘reasonable restrictions’ by the judiciary in this case. The judiciary’s power to hold one liable in the offence of contempt threatens the fundamental right under Article 19 of the Constitution. The right to freedom and speech enables the society to express their opinions, dissent and raise concerns over the authorities which lies challenged in the present jurisdiction.