Courts should learn to shrug off tweets

In life, we ignore many provocations, especially the foolish and the trivial ones. We let the outswinging ball go into the gloves of the keeper. This has become more important with the emergence of the social media and the internet. This media is flooded with abuses and trifling few lines, which are casually and irresponsibly shared, often without thought and for fun or even habit.

Advertisement

This is the non-creative side of free speech. Such speech is generally unchewed and not very popular. Readers do not attach much weight to them. Often, the counters blunt them and they lie buried in the web dust. But if the institutions engage with them, they become notoriously popular and attract greater attention and discussion, often warped in high sounding legalese. The judiciary will have to develop this art of ignoring in the new context, two tweets of Prashant Bhushan — one pertaining to the CJI checking out a Harley Davidson and the second alleging corruption against the last four CJI s and asserting failure on the part of the apex court to check executive assault against democracy.

The Ayodhya verdict too was castigated. Tweets had made hardly any impact on society or even the netizens. In fact, the first tweet had been countered by me as ‘stupid’ and ‘absurd’ . These tweets of a politico-lawyer fade into insignificance when compared with the garden media conference of four sitting judges of the Supreme Court where serious allegations had been levelled against the then CJI Deepak Misra. The four judges rose from courtroom abruptly, under prior understanding, and addressed the media. A letter given to the CJI was released. They launched a serious charge alleging bias in the listing of important cases before a bench of preference in exercise of the powers of the Master of Roster. They said democracy was in danger and they had to speak out as part of duty to the nation. This became international news. It was covered by the entire print and electronic media. The meet was unprecedented. It led to an impeachment motion against the CJI. The motion was discussed in the media over days and rejected by the Chairman of the Rajya Sabha.

The garden meet shook the judiciary as a whole. What the judges said appertained to the administration of justice in the Supreme Court. Their statement, if untrue, was clearly obstruction in the course of administration of justice. It was gross contempt. And it is settled that a judge can commit contempt of court. Justice Karnan, judge, Calcutta High Court, had been convicted not long ago. But the Supreme Court ignored it and rested content with reiterating the powers of the Master of Roster and it being unquestionable.

Perhaps it was more urgent to stabilise the rocking boat. The tweets of Bhushan are not as serious, nor were as widely covered, nor had an eqivalent, nor even had half as much impact. It too should have been ignored. However, the court in its wisdom, chose to pick it up for suo moto contempt proceedings. In the process, the Supreme Court, unwittingly, made the dead tweets alive and popularised them. It provided an opportunity to the contemner to interlace them with free speech question.

The conviction and Re 1 sentence made Bhushan a hero. Many compared him with Gandhi and Mandela — another stupidity. In the process, his tweets were read and reread and widely commented upon, largely in his favour, and in the context of bona fide belief and free speech. Tweets of zero value, which no one bothered about, were turned valuable by the judicial error of noticing them for suo moto action.

The free speech question! Many writers and the contemner pitted free speech against the power of contempt and asserted that contempt law was obsolete and must give way to the fundamental right. Bhushan flagged his long service to jurisprudence and his loyalty in always being in the forefront to protect the sterling record of the court in guarding fundamental rights and democracy. The contention seems to be that even qua contempt law, the width of free speech is very wide and bona fide opinions as regards judges’ rectitude and conduct cannot amount to contempt.

No doubt, free speech is the brightest of the seven lamps in Article 19 of the Constitution, and has a wide scope for criticism of the judiciary. But wide though it is, it is not absolute. No fundamental right enshrined in the Constitution is absolute (9JJ Aadhaar judgment in Puttaswamy case). And here, we have the important power of contempt existing in the panoply of court’s power. The court’s power of contempt inheres by virtue of Article 129. It should not be confused with the power of Parliament to make a law with reference to Article 19 (2) as a reasonable restriction. Law only regulates the power. The power is plenary. It is essential, so was put in the Constitution as a plenary power. This power is intrinsic and the core element of the independence of judiciary, which is a basic feature. Both free speech and the independence of judiciary are basic features and sometimes may appear to be in conflict.

The pantheon of basic features is not always in harmony. The pantheon has mutually warring godheads (Justice SN Dwivedi in Kesavanand case). Balancing and harmonising the two is important. Neither can claim absolute superiority over the other. Without a strong judiciary, the fundamental rights would be reduced to paper safeguards, and without criticism, the judiciary will lose popular correctives.

Judges are human and are therefore fallible. Jurists and commentators play an important role. The judiciary has to welcome the popular gaze and scrutiny in order to be strong and enjoy the faith of the people. The faith is earned and not demanded or commanded. Strong criticisms do not weaken the judiciary, they strengthen it. A baseless criticism can always be shrugged off. There should be no attempt on the part of the judiciary to snuff out fair and strong criticism made bona fide by using the contempt power as a bludgeon.

At the same time, critics must always be conscious of the limits of fair criticism. Strong criticism does not confer a right to slander judges or court when verdicts are not to the liking or do not fit into their worldview or constitutional conceptions. When we move from criticising the judgments to criticising the judges and levelling charges of corruption, and we bypass the internal machinery, then only can truth be our defence. Bona fide opinion is no answer. Bona fide may be relevant for sentence or non-punishment; bona fide is not the same thing as truth.

The fallacy in Bhushan’s defence was in pitching his case on bona fide opinion. Truth demands material and evidence of corruption. This is important as the judges are not there to defend themselves. The judgment in Prashant Bhushan’s case correctly highlights this aspect. Bona fide tweet opinion as regards corruption in a few lines is hardly the way to level a charge of corruption. It is an irresponsible act. Criticism of a judge is an exercise to be undertaken with responsibility. It is not a tweet hit and hides behind bona fide opinion exercise. This is not an exercise of freedom of speech. It is slander, but something which the Supreme Court should have been well advised to let it pass.