Speaking at a webinar organized by the Kerala Chapter of Indian Association of Lawyers (IAL), advocate Prashant Bhushan said that the recent contempt case against him was an attempt by the Court to silence those who wished to express themselves regarding the functioning of the judiciary.
However, he added, public outcry has ensured that the Top Court's decision in finding him guilty of contempt had the polar opposite effect.
"The intention of court in punishing me, with an archaic law, was to silence me & try to silence others like me who wish to freely express themselves regarding the functioning of judiciary. However, due to public outcry, exactly the opposite seems to have happened…
…Instead of chilling the discussion regarding the state of judiciary & role of Supreme Court, the judgment sharpened the debate & brought increased focus on what has happened in our democracy over last 6 years", said Bhushan.
At the outset, while delivering the keynote address on the topic "Challenges Before Our Constitutional Democracy", Bhushan spoke about the Supreme Court's recent verdict holding him guilty of contempt of court with regard to two of his tweets. Binoy Viswam, Rajya Sabha MP belonging to the Communist Party of India(CPI), presiding over the session, called Bhushan a "brave hero of the Indian judicial system" and affirmed that the Kerala bar stood with him.
Stating that the tweet to be taken note of was the one regarding the situation of the Indian democracy over the last 6 years and the role played by the last 4 CJIs in that time, Bhushan said. "I said when historians look back, they will see that democracy has been largely destroyed in the last 6 years and they'll note the role of the last 4 CJIs in that. It represented my bona fide views and beliefs of what's happened in the last 6 years & what the role of the Supreme Court & Chief Justices had been. Every citizen in a democracy should be free to express those views without threat of being prosecuted."
Pointing out recent articles assessing the judicial legacy of Justice Arun Mishra, who demitted office on September 2, Bhushan sought to explain how the contempt case had the opposite effect. He concluded that instead of silencing voices of others like him, the matter ended up bringing an increased focus on the state of the democracy as well as stiffening people's resolve to speak out freely.
Moving on to the role of the Supreme Court in protecting constitutional rights and values, Bhushan elaborated as follows-
"When we created the constitution, the public was supposed to be masters and public servants were to serve the people. Constitution gave people fundamental rights. The right to life & liberty was expansively interpreted by Supreme Court…
The main job of SC was to protect fundamental rights & ensure that the legislature & executive remain within bounds of power given to them by the constitution, and not merely to act as an appellate court. It was Supreme Court's role to strike down laws & executive action which went against the constitution.
The Supreme Court was given the role to order the executive to perform their constitutional duty. These are important roles."
Having stated this, Bhushan said that every institution created to protect democracy was being assaulted. He spoke in detail about institutions such as the Election Commission and CAG being compromised for the first time. He added that there was a whole scale assault on fundamental rights of citizens and the most of the mainstream media was controlled by the Government.
"What we are seeing today even without the imposition of a formal emergency is far worse than what had ever happened even during emergency. Because today we find all our fundamental rights are under assault by the state. Right to equality is repeatedly assaulted…Laws are made and the police is coerced to ensure minorities, Muslims & Dalits don't get equality before the law; to ensure India becomes a Hindu Rashtra where Hindus and some other religions get preference while Muslims are reduced to 2nd class citizens.
There's an assault on all Article 19 rights. Saying anything against the Government leads to being beaten up on streets with police looking on as helpless bystanders, sometimes participating in the meeting. There's also a Lynch mob, not only on streets but also on social media…Large parts of mainstream media are completely under the power of the government.
We see sedition law being used against those who speak against them. Now there's also the use of contempt law against people like me."
Speaking about activists and protests, Bhushan said the Right to life and liberty is also being 'assaulted' wherein protests are being curbed by the use of Draconian laws like UAPA used to arrest, harass, intimidate & victimize activists. He further alleged that there is an assault on educational institutions in order to destroy scientific temper as well as critical thinking. Unqualified Vice Chancellors were being appointed to Universities, he added, whose only qualification is that they either belong to the RSS or because they owe an allegiance to the BJP.
Bhushan further elaborated on the situation of the mainstream media which is responsible for spreading false information, hateful information, hateful fake news and diverting people's attention from real issues. He substantiated this point by referring to the media coverage of late actor Sushant Singh Rajput's death and the investigation of actor Rhea Chakraborty.
"It is very unfortunate that media is under control of the Government...Last couple of months we've been seeing many channels going on about the death of Sushant Singh Rajput as if that's the most important issue in the country. They've spread all kinds of nonsense to paint Rhea Chakraborty as some criminal…
All this is being done to make people lose ability to distinguish what's true what's false & what's a bogus issue. Thus there's a concerted effort to assault critical thinking & scientific temper. Not just by the government, but by media controlled by Government."
However, asserted Prashant Bhushan, the most serious assault to have taken place was on the judiciary. He then elaborated on why he believes that democracy had been destroyed in the last 6 years in India and why he believes Supreme Court did not perform its role in protecting the same.
He pointed out that a number of cases which required urgent consideration by the Top Court had been kept pending and questionable action had been taken in important cases which have been heard. Bhushan went on to list inaction in cases related to the Kashmir internet shutdown, abrogation of Article 370, Habeas Corpus pleas along with petitions challenging the Citizenship Amendment Act which have been kept pending for over 9 months. With regard to action taken, he highlighted the verdicts in the Ayodhya land dispute case, Birla-Sahara case, Rafale deal as well as the deaths of Haren Pandya and Judge Loya.
"Its been over 9 months, but CAA Petitions are not being heard. There's inaction, and wherever there is action...
In the Ayodhya verdict the same people who were found to have demolished the mosque and are being prosecuted were given charge of the land…In Birla-Sahara case, Court says big people need not be investigated on the basis of loose papers, but in Bhima Koregaon however, probe can go ahead based on fabricated evidence?!
In case after case we have seen that Supreme Court has failed to protect, failed to order probe in suspicious murders, in important cases concerning corruption in high places."
Bhushan went on to raise concerns about the independence of Judges and alluded to allegations of the Government using investigating agencies to harass the opposition, bring media in sync with the Government and to coerce businessmen. He thus averred to the possibility of agencies being used to influence Judges as well. "There's a feeling that agencies have been used against judges in order to bring them in line. This is a serious matter", he said.
Speaking about the code of conduct of Judges, Bhushan pointed out that judges should not 'hobnob' with politicians unless they're close personal friends, and in case they are close friends, the Judge must not hear the matter. However, he added, Justice Arun Mishra invited BJP leaders to his residence for his nephew's wedding while the Birla Sahara case was pending before him. Shivraj Singh, who was said to have received Rs.10 crore according to the recovered Sahara diary, was one of the guests. Justice Mishra eventually heard the matter and refused to order investigation, iterated Bhushan.
"Many commentators, in the post mortem of Justice Mishra's career, pointed out that many important cases were given to him. Successive CJs gave cases just to him. That's why 4 judges held that unprecedented press conference when Judge Loya's case was given to him. In virtually every politically sensitive case, it has been pointed out that Justice Mishra went in accordance with what the Government wanted", he added.
Emphasizing on the problem, Bhushan said that there was no system in the judiciary to ensure that judges who are appointed have values matching with those of the constitution.
Having said that "there's a huge problem in judiciary today about judicial appointments, there is no transparency in appointments today", Bhushan called for judicial reform in order to ensure that proper, independent judges are appointed to the judiciary.
Calling for a campaign for judicial reforms, Bhushan urged that lawyers must be at the forefront of such a campaign.
"We must examine why independence of judiciary has collapsed in last few years…We also need a judicial complaints commission to examine complaints against judges to ensure accountability of the judges…for things that need to be brought in to the judiciary it is lawyers who need to be at the forefront of the campaign for judicial reforms…
We must get together and launch a campaign to reclaim our Republic. Our Republic, everything we value is under serious threat", urged Bhushan.
Bhushan concludes by saying, "Our Republic is under unprecedented threat. Everything we value is at stake. We have to make extraordinary efforts to reclaim our Republic..."@pbhushan1— Live Law (@LiveLawIndia) September 6, 2020
Bhushan warned that institutions created to protect democracy as well as our fundamental rights are under serious threat. Thus, in conclusion, he appealed-
"Our Republic is under unprecedented threat. Everything we value is at stake. We have to make extraordinary efforts to reclaim our Republic. If we do not make the effort, we lose everything. All of us will lose. This country will be destroyed & our Republic will be in tatters."