No matter what punishment it hands Bhushan, Supreme Court has come out poorly in contempt case

There is a popular story associated with Hindu god Shiva in the Tamil bhakti tradition. In order to test his devotee, the great poet Nakkeeranaar, Shiva assumed the guise of a bard and deliberately wrote a flawed poem to be presented to the king. But Nakkeeranaar stopped the king from awarding the poem a promised prize, attracting Shiva’s ire. During their confrontation in the king’s court, Shiva opened his third eye as a warning that Nakkeeranaar was finding fault with the work of god.

Despite the threat of being burnt to ashes by Shiva’s third eye, the poet remained steadfast in his judgement of the poem. This story was dramatised in Sivaji Ganesan’s film Tiruvilaiyadal, in which the poet character famously says: “Netrikann tirappinum, kuttram kuttrame.” A wrong is a wrong even if Shiva opens his third eye.
This episode seem to be reflected in the contempt of court proceedings initiated by the Supreme Court against lawyer Prashant Bhushan. Despite the court finding him guilty of contempt and the threat of a possible jail term hanging over his head, Bhushan has stuck to his principles and defended his criticism of the court.

The contempt case had been initiated suo motu by the court in July over two tweets that Bhushan had issued about the functioning of the judiciary and recent chief justices. Last week, the court found him guilty and was meeting on Tuesday to decide what punishment he should be awarded.

However, the proceedings showed that Bhushan’s principled stand has put the court in a difficult position. Whatever the outcome of the case, Bhushan will come out of it with his reputation burnished.

Seeking apology
From the comments the judges made on Tuesday, the one thing that stood out was the court’s insistence on a proper “apology” and the offer to Bhushan that he would be allowed to take back the statements he made in a detailed affidavit.

In fact, the court put a greater focus on Bhushan’s affidavit filed earlier this month in response to the court’s notice than the tweets themselves. While the two tweets contained only vague criticism of the court and the chief justice, the contempt notice provided Bhushan with an opportunity to exhaustively elaborate on his perception of the court.

In the affidavit, Bhushan had listed specific instances where the court had seemingly failed. This included the challenges to the Citizenship Amendment Act and the abrogation of Jammu and Kashmir’s special status, cases that Bhushan claimed the court did not show enough alacrity in hearing and which are still pending before the court.

Bhushan had also pointed to the manner in which the court failed to provide proper relief in the habeas corpus and other petitions seeking restoration of fundamental rights in Kashmir, stating that the court “displayed an astonishing lack of urgency” in the matters that involved liberties of a large population. He contrasted this with the “alacrity” shown by Gogoi in the Ayodhya-Ram Janmabhoomi case, with the final outcome “served to strengthen the poll prospects” of the ruling Bharatiya Janata Party.

The affidavit also detailed the way the court handled the sexual harassment complaint against former Chief Justice Ranjan Gogoi last year. It formed an internal committee and dismissed the allegations, only to later re-instate the woman to the same post after Gogoi retired.

Bhushan raised questions over the court’s conduct in a range of controversial cases, from the Birla-Sahara diaries, to the alleged suicide note of former Arunachal Pradesh Chief Minister Kalikho Pul, which apparently contained allegations against Supreme Court judges. He mentioned the dispute over the change in the director of the Central Bureau of Investigation, and how the delay in hearing resulted in the Centre keeping the former CBI director Alok Verma away from discharging his duties till retirement.

As he listed these instances, Bhushan specifically recalled the role of the last four chief justices in the cases and their function as the master of the roster in allotting cases to different benches.

“Particularly during the term period of last 4 CJIs, the country has seen abdication by the Supreme Court of its constitutional duty to protect basic constitutional values, fundamental rights of citizens and the Rule of Law…

The court surrendered while tyranny and majoritarianism gained a deep foothold in the country. All these egregious assaults on civil rights and on institutions have been allowed to go through, without any accountability, under the benign gaze of the Supreme Court. It is in this political climate that most independent regulatory institutions have capsized and even the Supreme Court has not been able to stand up as a check on the excesses of the government.”

What the attorney general said
When the proceedings over sentencing Bhushan began on Tuesday, the bench led by Justice Arun Mishra sought the “guidance” of Attorney General KK Venugopal on how to proceed. It should be noted that Venugopal had not been heard by the court during the main hearing that resulted in Bhushan’s conviction. Last week when the court took up the question of sentencing, Venugopal had brought to the court’s notice the fact that even judges of the court have spoken about corruption in the judiciary and how the functioning of democracy in India has been affected.

On Tuesday, Venugopal elaborated on his comments and reiterated that the court should not punish Bhushan. He suggested that the court could drop the matter if Bhushan was ready to express regret and take back his affidavit.

The court then took a break of 30 minutes so Bhushan could reconsider his position.

When the court re-assembled, Bhushan’s lawyer Rajeev Dhavan said that Bhushan did not want to retract his affidavit. In fact, Dhavan went on the offensive, calling the judgement convicting Bhushan flawed, replete with “half-truths” and “contradictions”.

He argued that the Supreme Court would collapse if it does not face severe criticism and reiterated that Bhushan’s statements were aimed at strengthening the court. Importantly, Dhavan said the court’s decision to offer time to Bhushan to consider making an apology was an “exercise of coercion”. “We are not asking for mercy. We are asking for statesmanship from the court,” Dhavan said, pleading that the proceedings should be dropped.

In response, Justice Mishra asked what was wrong in issuing an apology. “You will got to the category of Mahatma Gandhi if you apologise,” he said. “Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that.”

Keeping the record clean
The drama of Tuesday’s proceedings aside, it is clear that the Supreme Court was stung by the position Bhushan had taken to stand by his comments in his affidavit. Whatever happens in the end, it is clear that the court has come out poorly from the proceedings. It was triggered by the court overreacting to two inconsequential tweets that did not create any major obstruction to the administration of justice, as Bhushan’s lawyer pointed out.

While the court has repeatedly said Bhushan should purge the contempt by offering an apology, what was also clear was that the court attempted to purge his statements by asking him to withdraw them. The repeated insistence on an apology gave the impression that the court did not want the criticism about its functioning over the past six years to remain part of the record. This is because of the nature of the court itself. As a court of record, these documents and arguments will be referred to in other cases for many decades, putting the court in an embarrassing position again and again.

Now that Bhushan has refused to take his statements back, it is to be seen whether the court itself will remove those comments from the record as it sentences the lawyer. This would be a drastic move and could invite even more criticism.

The other option available to the court is the path shown by Attorney General Venugopal. The court could show magnanimity and end the proceedings with a warning to Bhushan.

At the end of the story of the poet Nakkeeranaar, Shiva revives the poet and blesses his devotee for the honesty he displayed in the face of great odds. It did not matter to Shiva that a puny human found fault with him, the omnipotent spirit in the Hindu tradition.

It remains to be seen whether the lords of the Supreme Court will shrug off Bhushan’s comments with similar generosity.