We live in an age of plentiful speech. The explosion of social media has democratised the possibility of speech reaching diverse audiences. Prashant Bhushan, an avid user of Twitter, has benefited immensely from this democratisation. At an earlier time, his statements about the Chief Justice of India on a motorcycle and destruction of democracy may have led to a heated dinner table discussion before being forgotten. Today, the sheer power of social media and its stranglehold on mainstream legal reporting has blown it entirely out of proportion, also amplifying the offence caused to the judiciary.
Bhushan’s second tweet on the destruction of democracy caused by the Supreme Court and the last four Chief Justices is a straightforward expression of opinion. It is the sort of opinion that is commonly expressed about the now-overruled judgment handed down by four judges of the SC in the ADM Jabalpur case reinforcing the Emergency. Such an opinion about the case became standard-form only over time. The under-fire judges also redeemed themselves significantly over this time. For the court today to usurp the role of time and hold Bhushan’s expression of opinion to be contemptuous, no matter how disagreeable it may seem, is unfortunate.
However Bhushan’s first tweet conflating the CJI riding an expensive bike with the closure of the courts during the lockdown is not an expression of opinion – it is a misstatement. As the court has rightly noted in its judgment, the Chief Justice did not keep the court in lockdown, the country was in a lockdown. Even during this time, courts continued functioning, albeit in a limited way through videoconferencing. In any event, what the Chief Justice does during the summer vacation of the court is his own business. Drawing a correlation between his personal activities and the claimed closure of the court cannot be constructive or bona fide criticism.
In cases such as these, the question is not simply whether it amounts to contempt of court. More often than not, it technically does. Instead, the question is whether the court ought to initiate contempt proceedings or not. The history of contempt cases demonstrates that judicial discretion is often the better part of valour. In a case pertaining to communist stalwart Biman Bose, the Calcutta high court refused to convict him of contempt on technical grounds, despite his derogatory remarks against activist judges; the Allahabad HC dropped contempt charges against Tavleen Singh for having called judges “notoriously allergic to any criticism”. Certain members of the Muzaffarnagar Bar described two judges as “thoroughly incompetent in law” and “overbearing”. Despite finding that contempt was technically committed, the SC refused to convict.
The exercise of such discretion is even more critical in the social media age where personal attacks on judges are rife. It is simply not practical for every such abuser to be hauled up for contempt. If some are taken up and not others, the court will be accused of cherry picking. Equally, doing nothing cannot be a sustainable long term strategy.
Caught in this bind between acting to protect its own reputation and restraining itself lest its actions become arbitrary and stifle fair comment, courts need to drill down to the root cause of this impasse. That is neither Bhushan’s public persona nor the decision of the CJI to sit on a motorcycle.
Public commentary on the court is directly proportionate to the court’s own oversize role in governance combined with its messiah-like aura. Governance, unlike law, has no right answers, no stroke of the pen solutions, no final decrees. At the same time, criticism of governance decisions is commonly on the basis of preference or ideology, rather than reason. The more the courts move away from the law into general administration, the less authoritative and messiah-like they will appear. Like politicians as a class, judges too will become punching bags for decisions that people may not like.
This trend is being exacerbated by several court commentators celebrating or denigrating the court depending on the result reached. Motives are regularly imputed to delays in listing certain cases and prioritising others. That such unprincipled commentary travels far and wide is as much a product of the medium as the message.
Twitter, the intermediary, was let off because the court correctly recognised that it does not have control over what users post on their platform and is consequently not liable for it. While this is a fact, it is also a deliberate design choice. The core reason for multiple users spewing bile about the court on social media platforms is because no norms of online civility have developed in the absence of any legal mandate for platforms to become responsible for content. Imagine if the publisher of a volume of essays, or a newspaper, said that it would not be liable for the content they publish. That’s what Twitter said in court and got away with. Constructive solutions to increase responsibility of platforms and develop norms of online behaviour must be found.
Ultimately, actions of the court ought to be products of careful reasoning, nuance and subtle judgment. They ought to stay above the cacophony of political slanging, partisan debate and remain resistant to easy categorisation. So must its commentators. In an age of plentiful speech, it’s important to know when to speak and when to move on.
(The writer is Research Director; Vidhi Centre for Legal Policy.)