Advocate Shamim Ahsan

By Advocate S Shamim Ahsan | Thane

The role of Judiciary as watchdog of democracy and guardian of Constitution has been a constitutional imperative and the Judiciary had maintained it’s dignity and temper by questioning the Governments for making the Regimes responsible, responsive and accountable. The dignity and honour of Supreme Court has never been questionable and it had commanded the respect for the discharge of it’s primary duty as guardian.

In an unflattering exercise of contempt jurisdiction, the Supreme Court held Prashant Bhushan guilty of making “scandalous” and “Scurrilous” comments against the institution of Supreme Court.This very exercise of contempt jurisdiction of Supreme was termed as “over reaction” by many. Former Attorney General Soli Sorabjee even has gone to the extent of saying that “you are not some divine institution against whom we cannot speak”. In the opinion of Soli Sorabjee Supreme Court has conveyed a message that “no one can speak against us”.

Integrity of an institution is determined by the criticism it can withstand. Open criticism and fair comments are to be necessarily addressed for upholding the majesty and honour of the Institution failing which the constitutional order cannot be safeguarded. Supreme Court unfortunately rejected the very idea that people may have different belief and even the belief that does not suit to it’s preferences. It did not consider that people cannot be punished for having the other or different belief. They cannot be restrained from having an independent view.

While referring the contempt case of Prashant Bhushan, the history shall certainly remind us of the press conference by four senior Supreme Court Judges who were concerned about the Democracy being in danger. Their Lordships were critical of the functioning of Supreme Court. The crisis in Judiciary and perceived integrity of the institution was the base for Justice Chelameswar saying that they should not be remembered with the words that “they sold their souls”.

It was an unprecedented event in the history of the Nation when Judges themselves questioned the very base of administration of justice. Whether Supreme Court will address the questions and allegations by it’s own judges while punishing Prashant Bhushan for his act of dissent or personal opinion regarding former Judges.

The Contempt Case of Prashant Bhushan also leads us the question as to whether concerns expressed by four senior most Judges with regard to the manner and functioning of Supreme Court were perceived as Criticism or exercise of right of free speech and expression of dissent ??

One more and crucial aspect of the matter is the factor of deterrence that has been seemingly conveyed that “you cannot question”. There are many questions that are required to be answered concerning insensibilities of Top Court in very important and urgent issues including migrant workers’ petition and hate speech etc. Now the contempt jurisdiction of the institution shall silence all the voices that demand accountability or answers.

Prashat Bhushan’s conviction affects the very credibility of Judicial system. It also puts a question mark over the procedure adopted for conviction apart from the argument that whether the power of Supreme Court for contempt proceedings is inherent or absolute. Faith of the people stands eroded with the judgment as opined by Arun Shourie.

By refusing to apologize, Prashant Bhushan has upheld the dignity of the profession and has set a precedent against arrogance that the principles remain unchanged and the same cannot be compromised. He did not fail in his duties in maintaining his dignity as officer of the Court and in protecting  the majesty and honour of the Institution of Judiciary.

Despite unfavorable circumstances against fair Criticism, democratic comments and Dissent, many, including Lawyers, former Judges of Supreme Court and people from various fields of Society have shown their disagreement and disapproval with the Judicial arrogance having been exhibited against Prashant Bhushan..

The solidarity with Prashant Bhushan conveys that deterrence as intended by Supreme Court has been rendered ineffective. Let’s stand for the cause and for Prashant Bhushan so that the Institution of Judiciary too can be questioned for accountability….