The application states that the proceedings initiated by the top Court are unjust and unconstitutional for violation of rights under Article 19(1)(a) of the Constitution.Debayan Roy

Even as the Supreme Court is in receipt of numerous representations seeking the cancellation of suo motu contempt proceedings recently initiated against Advocate Prashant Bhushan, 16 more eminent members of the civil society led by social activist Aruna Roy have moved the top Court seeking to intervene in the criminal contempt proceedings against the activist lawyer.

The intervention application filed by Advocate on Record, Prasanna S has as its applicants the following persons:

  • founder of Mazdoor Kisan Sangathan, Aruna Roy,
  • JNU Economics professor, Jayati Ghosh,
  • founder secretary of MV Foundation, Shantha Sinha,
  • journalist P Sainath,
  • former secretary to Centre, EAS Sarma,
  • Musician TM Krishna,
  • IIM Ahmedabad dean, Jagdeep S Chhokkar,
  • social activists, Anjali Bhardwaj, Bezwada Wilson, Nikhil Dey, SR Hiremath,
  • JNU Professor, Prabhat Patnaik,
  • former civil servant Deb Mukharji,
  • Chairman of the National Commission for Minorities, Wajah Habibullah, and
  • feminist writer, Dr.Syeda Saiyidain Hameed.

The intervention application states that Advocate Bhushan’s tweets expressed an opinion which any “reasonable person can legitimately hold” and that the proceedings initiated by the top Court were “manifestly unjust and unconstitutional for violation of rights under Article 19(1)(a) of the Constitution.”

The plea further argues that it is not only Bhushan’s rights that are affected, but also those “of the wider public – insofar as it causes a chilling effect on the exercise of the right to free expression.”

The top Court had earlier issued notice to Attorney General KK Venugopal and Advocate Bhushan after the court took cognizance of Bhushan’s tweets criticizing CJI SA Bobde and blaming the judiciary for the economic crisis.

The applicants, however, submit that the statements made by Bhushan in his tweets articulate some of the legitimate concerns already being raised by parts of civil society about “the reluctance of the Hon’ble Supreme Court to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights of people by the State.

The applicants further submit,

“… many, including the applicants, share the concerns surrounding the functioning of the higher judiciary, more so during the Covid-19 pandemic – irrespective of the Applicants’ agreement or disagreement with the form and content of those tweets per se. It is in essence criticism which ought to be considered constitutionally protected speech, and in any case the expression therein cannot under any circumstances be treated as an issue of contempt of court under the law.

The intervention application states that the applicants wish to assist the court on the questions of law and fact that arise in the instant case.

“Hon’ble Court as an institution, described as the sentinel on the qui vive, ought to allow debate and discussion regarding its functioning and must not appear to stifle such expression through the invocation of its power of contempt. It is further urged that this Hon’ble Court ought to be open to public discussion about its functioning without those expressing their honest opinion fearing retribution or action of criminal contempt,” reads the applicaton.

Submitting as to how the contempt of court act provisions needed to be interpreted keeping with the times and the “march of law”, the application also points out that India has moved from a “culture of authority to a culture of justification.”

The application further quotes late Senior Advocate Vinod A Bobde, who in his article,Scandals and Scandalising, (2003) 8 SCC Jour 32, stated that “We cannot countenance a situation where citizens live in fear of the Court’s arbitrary power to punish for contempt for words of criticism on the conduct of judges, in or out of court.”

The applicants maintain that they would soon file another writ petition challenging the constitutionality of the impugned provision of Contempt of Courts Act as well.

In the meanwhile, senior journalist N Ram, former Union Minister Arun Shourie, and Advocate Prashant Bhushan have already moved a plea in the Supreme Court challenging the Section 2(c)(i) of the Contempt of Courts Act, 1972 which deems acts that scandalise or lower the authority of courts punishable as criminal contempt of court.

The contempt case in question involves two tweets made by Bhushan recently.

The first tweet pertained to Bhushan’s commentary on a picture of Chief Justice of India SA Bobdeon a high-end motorcycle, whereas in the second, Bhushan expressed his opinion on the role of last four CJIs amid the state of affairs in the country.

This apart, the Supreme Court recently resumed hearing another 11-year old contempt case against Bhushan, which was registered following a complaint by Senior Advocate Harish Salve over allegations put forth by Bhushan against former Chief Justices SH Kapadia and KG Balakrishnan.

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