On August 14, 2020, the Supreme Court judgment on contempt (Prashant Bhushan) is seen as alarming by those who believe in constitutional values as they said the judgment creates bad precedent hampering free speech and fair criticism of judiciary.
A three-judge Bench of the Supreme Court headed by Justice Arun Mishra found Bhushan guilty of criminal contempt by ‘scandalising the court’. The judgment triggered a debate in the country and the intelligentsia stood by him.
In an interview with Siddique Kappan for Muslim Mirror, prominent Indian lawyer and civil rights activist, Prashant Bhushan says he sees it as a victory of people.
On his joining the ‘India Against Corruption’ movement, he said he did not regret the part of the movement, However, he admits that he didn’t see that from the back the RSS and its political wing were supporting the movement.
SK: The legal battle between you and the highest court of the land in the contempt case has kick started a gripping debate on the role of judiciary. A symbolic fine of one rupee after being found guilty of contempt of court is widely seen as your victory? Who do you think has won?
PB: So, I think in this the people have won, because instead of killing the discussion or any advice -commons about the judiciary. The contempt case has in fact emboldened people to very critically examine the role of the Supreme Court over the last few years, and the role of last four chief justices of India, as well as the role of Justice Arun Mishra. So that is a very good thing in democracy that all institutions including the courts need to be carefully criticized by the people and they should be free and frank discussion. The discussion has already resulted in some benefits in terms of some court correction by the Supreme Court as we saw in the Sudarshan TV case or in the Char Dham High way Case.
SK: Then why have you filed a review petition against the ruling after depositing the one rupee fine?
PB: One Rupee fine though had to deposit because they give me time 15th September. The payment of the fine does not mean that I admit my guilt as a contemnor. I think it is a wrong judgment on law as well as on facts and therefore we challenge it.
Filing a writ petition is my fundamental right under the Article 21. The finding in Paragraph 18 of the contempt judgment of August 14 that the “power of this court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971” is an error of law apparent on the face of the record, a legitimate ground for review. So, they (SC) should device and in record the appeal or at least convert the review into a kind of appeal by listing a before different judges so that at least one fresh set of judges can examine the correctness of this judgment.
SK: Do you think the SC will take up the review petition for consideration as eagerly as it had taken up your contempt case?
PB: They have to take up the review petition sooner or later that is required and otherwise they will.
SK: Many and even you have said that this case would be a watershed moment for freedom of speech? Can you elaborate on this?
PB: Yes, because you see this case has become a freedom of speech movement. It was seen by the people as an attempt to safer manner freedom to speak about judiciary. Therefore, a lot of activism created in to movement for freedom of speech that is why people started speaking freely and frankly about the performance and role of judiciary.
SK: It is now seen that even a single judge can influence a case to be held in favour of the government. Is the foundation of the Indian judiciary so weak?
PB: So, what has happened over the years that this power of Chief justice as Master of the Roster has been misused by successive chief Justices to fix politically sensitive cases before convenient benches to ensure the decision in a particular way favourable to government and that is one of the major reasons why the Supreme court appears to have collapsed to last few years and has not been able to, or has not been seen to be standing up to the Government.
SK: A few of the recent judgments pronounced by the Apex Court have cast a shadow of doubt on the independence/impartiality of the judiciary. What is your take on this?
PB: Yes, That’s true. Not early the judgment it is also those important cases which were not heard. They not heard the CAA Cases, Kashmir Cases, not heard many habeas corpus Cases, not heard the Electoral bond case, and many of the cases that have decided recently such as Rafale case or the Loya Case, or the Ayodhya Case, or the Birla Sahara Diary Case. These cases in my view were totally wrongly decided, and wrongly decided in favour of the Government. So, it shows the Supreme Court somewhere lost its independence in these cases.
SK: Has the collegiums system only contributed to strengthening the shortcomings of the system?
PB: The Collegiums system unfortunately also allows very arbitrary appointments of Judges without any transparency, because there is no transparency even in the Collegium system. They are not laid down any criteria for selecting judges. So, that’s why lot of nepotism flourishes. Such as Justice Arun Mishra’s brother being appointed etc. So, it has not very substantially improved, it has allowed the appointment of somewhat more independent judges. But it has not very substantially improved the system of selecting judges, from the earlier system where the government use to appointment or use to select. Earlier, when the Government selected that led to less independent judges and more committed judges, committed to the government being appointed. Now the Collegium System has reduced that to some extent. But it has not reduced the nepotism or the arbitrariness in the appointment.
SK: In the wake of these incidents, what do you think about the future of the Indian judiciary in the coming days?
PB: Lot of reforms and requires in the Judiciary and those reforms will only happen robust public discussion and problems in the judiciary and public involvement in campaign for a judiciary. Unfortunately, neither the government nor the judiciary really want the kind reforms many reforms are required we need establishing the GramNyalayas (Village Courts) all over the country. we need to have more courts, need to have better system of selecting judges, need to have at least an independent body to examine complaints against judges, we need to also have strengthen the independence of judges why removing post retirement jobs given by the government to judges, as well as doing away this collegium with this master of roster system by wish the Chief Justice alone decides which cases to be heard by which bench. This system also needs to be reformed. So, many reforms required for that there has to be robust public discussion about these reforms as well as a sustained campaign by the people.
SK: You have been a stringent critic of the UPA government and led a movement against the corruption of the times. Now, you are fighting the Modi government on similar lines. Do you now feel that the times of the UPA government were better compared to the present times?
PB: Yes, in many ways they were better, because UPA Government did not make an attempt to crush democratic institutions in the way it has happening now. It is also highly communal and fascist government, the UPA Government was neither fascist government nor communal nor so wishes, it was corrupt alright, as corrupt as this government, this government is also corrupt. This corruption is somewhat different in form it has some Crony capitalists like Adani, Ambani whom they favour. But, yes, this government is certainly worse than the UPA.
SK: In a recent interview, you have said that India Against Corruption movement was supported and orchestrated by the RSS-BJP to destabilize the UPA government. Do you regret that you have been a part of the movement?
PB: No, I don’t regret the day was part of the movement that movement was required to set up an independent anti-corruption watch dog like Lokpal.
But unfortunately, that time I didn’t see that from the back the RSS and the BJP were supporting the movement in organized manner in order to bring down the UPA Government and get themselves to power. So that is a very unfortunate but very big collateral damage. That movement ended up to it, we should more care full in order to ensure that the BJP and RSS do not take advantage of that movement.
SK: Is it because the opposition in the country is weak that you have to do the duty of the opposition?
PB: I am not taken up the duty of the opposition; I just speak up against whatever injustice. I see around whatever wrong thing that is happening and I trying to whatever I can’t to correct that, I don’t see myself in role of opposition but it is true that it is unfortunately the opposition is not able to get act together.