The Supreme Court issuing a notice to the Centre, apart from the state governments, the Bar Council of India (BCI) and state bar associations, asking why a special fund for lawyers shouldn’t be considered given their livelihood has been affected by the pandemic is emblematic of the judiciary’s perception of itself and the larger legal fraternity. The apex court was hearing a petition by the BCI, seeking a direction to the Centre for financial assistance for lawyers through interest-free loans. Terming the situation unprecedented, a bench headed by Chief Justice of India SA Bobde observed that “a sizeable proportion (of lawyers) is denied of their income and livelihood” by the pandemic, Indian Express reports. To be sure, some lawyers would be facing fall in income because of the pandemic. But, against the summary destruction of livelihoods of millions from the vulnerable sections of the population, asking for a white-collar profession to be supported seems tone-deaf. The government, to be sure, has announced support measures for the poor—and, to some extent, for SMEs—but the essence of the SC’s stance in the present instance would make you think that Their Lordships perhaps view the lawyer-judiciary community and the rest of the citizenry through very different lenses.
The suo motu initiation of contempt proceedings against lawyer-activist Prashant Bhushan—for two tweets in which he criticised members of the bench at the apex court, including CJI Bobde—grates against the idea of judicial nobility and prudence. At a time when the ‘Indian-normal’ course of justice—3.5 crore cases are pending across courts at present—has been further delayed due to the pandemic, it is difficult to fathom why the SC believed a contempt case was more important.
There are many cases pending that perhaps deserves the court’s attention more. Also, the issue is not of priorities alone. Contempt of court has been discarded entirely or significantly whittled down by countries such as the UK and the US. And yet, at a time when the Indian contempt law is being reviewed by a committee on reforms of the criminal justice system, the apex court has endorsed it with its action. While it has made the application of the sedition law subject to certain conditions, it has hardly demonstrated similar willingness to make contempt of court contingent upon, say, obstruction of justice. In 1998, the apex court had ruled that no Act of Parliament can take away the power of the SC and the High Courts to punish for contempt and, in 2000, in T Sudhakar Prasad, it ruled that the powers of contempt are inherent in nature and the Contempt of Court Act is merely in addition to the Articles 129 and 215 of the Constitution.
It is true that a strong judiciary, one that is not maligned simply by pleading freedom of speech, is vital to a democracy. But, the SC itself, in Shreya Singhal (2015), had nuanced what freedom of speech meant in the context of social media. Besides, while the 274th report of the Law Commission notes that “attacks on the personal character of a judge is “punishable contempt”, it also says that the ‘very nature of the power (to determine and punish contempt) casts a sacred duty on the Courts to exercise the same with greatest care and circumspection’. The SC itself, in Baradakanta Mishra (1974), had laid down a litmus test for determining contempt; it should be seen if the alleged matter does wrong to the judge personally or to the public—“the key word is ‘justice’, not ‘judge’”.