SC's actions in Prashant Bhushan, Twitter case show court as vehicle for administration, not dispenser of justice
If Twitter has an obligation to unilaterally take down tweets without an order, then the SC must not just state the source of this obligation but also spell out when this obligation is activated
Twitter has "withheld" in India two tweets by advocate Prashant Bhushan as they are allegedly contempt to court. This has happened without an order from the court to delete these tweets. The court had "suggested" on 22 July that Twitter ought to remove the tweets itself without waiting for a formal order.
This whole Prashant Bhushan contempt saga was something that carried a stench from the beginning but now the stench appears to have become a rot. What were so offensive about Prashant Bhushan's tweet that the Supreme Court had to initiate suo motu contempt proceedings against him? The tweets have been reproduced in the order of 22 July 2020 and they are quite self-explanatory.
SC says it prima facie is of the view that the two tweets by adv. #PrashantBhushan have brought disrepute to the administration of justice and could undermine, in the eyes of the public, the dignity and authority of the Supreme Court in general and the CJI’s office in particular. pic.twitter.com/tvEEM1gilk
— The Leaflet (@TheLeaflet_in) July 22, 2020
Bhushan, someone this author seldom finds in agreement with, made two comments about the Supreme Court. One was about the impropriety of the present Chief Justice of India being seen riding a Harley Davidson motorcycle belonging to a BJP leader in Nagpur and the other was about the fact that there was an undeclared emergency in India and the Supreme Court had a role in ensuring it stayed that way.
To quote from the Supreme Court order, these two tweets have brought the "administration of justice in disrepute and are capable of undermining the dignity and authority of the Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large".
The actions of the Supreme Court of India, in not just the last few years but in the last couple of decades have ensured that the administration of justice in this country has no reputation to speak of, and consequently, its reputation may in no manner be undermined.
At Common Law, where there is a Crown, the judges, act as advisors to the Crown, judgements are issued in the name of the Crown after the advice of the courts. Complaints against judges may directly be made to the Crown which is why till the evolution of the Supreme Court in the UK, the House of Lords (the Crown in Parliament) was England’s highest court. Judgements delivered by courts carried the weight of impartial advice, the same way a counsel would give impartial advice to their client.
The legislature makes the law, the executive enforces the law and when there is a doubt, the courts clarify what the position of the law is. In such a system, judges carried dignity as they were professionals and their advice/judgements had an air of professionalism. It was clear the loyalty was to the law not justice. No matter how distasteful the public may have found it.
This is clearly not how the Supreme Court has been functioning at least in the last decade. Unbridled expansion in the Supreme Court’s writ jurisdiction (funnily enough, lauded by lawyers like Bhushan himself) has resulted in the Supreme Court moving from a dispenser of justice to a vehicle of administration. This does not impute that this vehicle is aligned to any political party, but by being a vehicle of administration, the Supreme Court has turned itself political. This being the case, the Supreme Court can no longer be placed above and protected from public critique by invoking the law of contempt. Like any other political institution in the country, the Supreme Court can and should be subject to criticism.
Why do I say the Supreme Court has become a vehicle for administration rather than a dispenser of justice? It is best illustrated in the “suggestion” that the Supreme Court put to Twitter asking it to take down the tweets on its own.
The Supreme Court’s job is to state the law and clarify it where it is in doubt. If Twitter has an obligation to unilaterally take down tweets without an order, then the Supreme Court must not just state the source of this obligation but also spell out when this obligation is activated. What the Court instead did, was avoid this question all together, consciously by asking for the tweets to be taken down without an order.
Twitter for its part, expressed less spine than a two-month-old puppy and tucked its tail between its legs and complied. This is maybe what Bhushan meant by an “undeclared emergency”. There is censorship of speech without formal orders.
The second aspect of this is that there is already a statutory mechanism under the Information Technology Act, 2000, to take down offending content on the internet. Companies that are active in India, rely on the certainty of our laws.
If companies may face sanction for not following a “suggestion” by a court, then it means that our laws are not certain. Why will someone invest in an environment where not just the government but even the court may exercise administrative muscle to tell a corporation what it can and cannot do?
Twitter’s case is not the only case. Through this lockdown, we have seen the Supreme Court being the forum to try and decide whether people should be charged for COVID-19 tests, how migrant workers should be repatriated, even get permission for large religious and public gatherings.
The Judiciary today has become everything from the District Magistrate to the Prime Minister’s Office in terms of the powers of decision making it wields. This is not what courts and judges are supposed to do. If a court oversteps in one case, it will automatically become a question when it fails to overstep in another. By overstepping over these decades, the Supreme Court has created political expectations by itself. Is it any wonder then that someone would find it dodgy to see a photo of the Chief Justice riding an expensive motorcycle belonging to a BJP Leader?
Of course, a judge is entitled to his personal life. Our current Chief Justice may be a fan of motorcycles. Who wouldn’t be? They are ridiculously cool things. But when there is a photo such as that in public circulation, then people have a right to pass comment on the same. All sorts of comments are fair game. In some circles, this photo has also become a meme.
The Chief Justice of India is now a meme on the internet. If this is the situation, then where can be the question of lowering the dignity of any institution or office? Is there any dignity left to lower? When people poke fun at their judges in the same manner as they do their politicians, it means the judges have become political. If the judges are political, then any speech about them is political and is protected speech under Article 19 of the Constitution.
At least the Supreme Court once upon a time used to think so. Now we do not know how the Supreme Court would react, cause the way the law in India is frequently unsettled, it appears there is no legal certainty anymore when it comes to most matters. Today’s Supreme Court may take another view and tomorrows will take a third view. Precedent and judicial discipline have become archaic terms in this grand judicial system of ours. Take out a procedural point and you are “denying substantive justice”, but without procedure, can there even be an institution?
Even in this case, the contempt petition was lodged without the permission of the Attorney General for India. This permission is an important procedural safeguard to make sure frivolous cases do not make it there. But this safeguard was also ignored.
The author is an advocate in the Mumbai High Court. Views are personal
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