Plain English: Reply Affidavit
On the 22nd of July 2020, the Supreme Court issued Prashant Bhushan a contempt notice based on two tweets he published: the first regarding the Chief Justice of India riding a Harley Davidson motorcycle, and the second regarding Mr. Bhushan’s assessment of the role of the Court in the ‘destruction of democracy’. Mr. Bhushan then filed a preliminary response to this notice in the form of a Reply Affidavit, which the Court heard on the 5 August 2020.
In this preliminary response, Mr. Bhushan makes a range of arguments, which he supports with evidence from several sources, including the statements, speeches, and writings of former and sitting members of the judiciary, precedent from past Supreme Court rulings, and examples and case law from other jurisdictions. His arguments include the importance of free speech as enshrined in Article 19(1)(a), the purpose of the law of contempt of court, as well as the intent behind his statements, which he supports with evidence from the media and the words of other lawyers as well as members of the judiciary. He insists that criticism of judges must not only be permissible, but that it is also desirable and necessary for the proper functioning of the judiciary and the safeguarding of the Constitution.
Free Speech is the ‘Ultimate Guardian’ of All Other Constitutional Values
The first argument advanced by Mr. Bhushan is based on the significance of free speech. He emphasises the importance of criticism and free speech as the ‘ultimate guardian’ of all other constitutional values and the rule of law. He asserts that as per Article 19 (2), only ‘reasonable restrictions’ may be placed on freedom of speech and expression, through the power of punishing contempt under Article 129. To prevent him or any other citizen from expressing a bonafide opinion in public interest would not be reasonable, and would indeed be manifestly unconstitutional.
Next, he evaluates the purpose of the law of contempt. He argues that its purpose is to protect the administration of justice and to preserve the faith of the public in the justice system, as held in the case of Baradakanta Mishra v. Registrar of Orissa High Court . He refers to the English case of Ambard v Attorney General of Trinidad and Tobago , which was referred to in P.N. Duda v P. Shiv Shanker . In Ambard's case, the House of Lords held that ‘justice is not a cloistered virtue’, and asserted that no member of the public who exercised his/her right to criticise the justice system in good faith was committing a criminal act. Bhushan asserts that free people who may freely criticise the court are the ultimate guarantors of what the law of contempt attempts to protect — the faith of the public in the judiciary.
He refers also to the case of Re S Mulgaokar , where Justice VK Iyer laid out three principles of the law of contempt. First of these is the ‘economy’ with which the law must be used, i.e. only in those cases where there is a calculated attack to undermine the judicial process should contempt law be invoked. Second, Justice Iyer recognised the breadth of Section 2 (1) (c) of the Contempt of Courts Act, 1971 ('Act') and held that it must be read along with the spirit of the Indian Constitution. More importantly Section 2 (1) (c) must be interpreted along with free speech and the ‘reasonable restrictions’ in Article 19. Third, he emphasised the distinction between the personal protection of an individual judge from libellous speech, and the protection of the Court from the speech that would undermine public confidence in its process. Justice Iyer asserted that while defamatory statements about judges may constitute ‘contempt’ in the sense of the law of libel, this need not necessarily extend to contempt of court — this offence did not serve to protect personal reputations of judges. Bhushan insists repeatedly on the distinction between a wrong to the public and the harm to an individual judge, as held by the Gauhati HC in Lalit Kalita .
Next, Mr. Bhushan discusses the law of contempt itself, both in general and in the specific form in which it exists in Section 2 (1) (c) of the Act. Here, he refers to an article written by Justice A.P. Shah in The Hindu, where he argues that the law of contempt itself is incongruent with democracy and freedom of speech. Moreover the specific width of the offence in the Indian context combined with the Court’s suo moto powers could lead to a ‘chilling effect’. He then discusses editorials published by both The Indian Express and The Hindu, which argue that the Court must revisit the law of contempt, and welcome opportunities for transparency and accountability.
Bhushan’s Intent was Rooted in Anguish
Lastly, Mr. Bhushan explains the intent behind the two tweets: his anguish at the non-functioning of the Court, and his concerns as to the role of the Court in the undermining of India’s democracy. The former he justifies by referencing statements issued by the Supreme Court Bar Association, and also the admissions of the Supreme Court itself in a suo moto writ petition issued in late July. As to the latter, he draws on the academic work of Dr. Ziblatt and Dr. Levitsky at Harvard, who document how democracies can be undermined by democratically elected governments, particularly in ways that are affirmed by the judiciary. Bhushan then goes on to show how their model of the destruction of democracy has parallels with the current situation in India, pointing to issues such as the erosion of the freedom of speech and minority rights, the increase in state-sanctioned violence, as well as the assault on institutions such as the Election Commission, the Central Bureau of Investigation, and the Reserve Bank of India. Finally, he discusses the specific roles of the past four CJIs in this process, including cases such as ADM Jabalpur, the Sahara-Birla case, and the silence of the Supreme Court as ‘tyranny and majoritarianism gained a deep foothold’ in India. With the use of this evidence, Mr. Bhushan attempts to show that not only were his comments made in good faith, they were also founded in fact, and as such, should not constitute contempt of court.