Author: Satyender Saharan | DSNLU.
The bench consisting of Justice Arun Mishra, BR Gavai and Krishna Murari heard a Suo moto contempt case against Mr Prashant Bhushan for his tweets made against the Chief justice of India in 2020, along with an 11-year-old contempt of court case against him. While the hearing of the case was ongoing, N Ram, Advocate Prashant Bhushan and Arun Shourie filed a writ petition challenging the constitutionality of ‘scandalizing the court’ under section 2(c)(i) of the Contempt of Courts Act, 1971. However, just two days before the hearing of the matter, the administration decided to delist the case from Justice Chandrachud’s bench and placed it in front of the bench led by Justice Arun Mishra.
The administration justified the action based on the court’s practice of “listing the matters of similar nature/arguments/grounds before a particular bench already engaged in hearing a matter of the concurrent nature”. The question that perplexes is whether the removal of the matter from Justice Chandrachud’s bench is justified.
The constitutionality of the contempt law was being challenged for the following reasons-
1. It creates a “chilling effect” because of the absence of “real and tangible” harm, but also fails the test of over breath. It abridges free speech of citizens.
2. Due to its vagueness and inconsistent application of the crime, it violates the right of equality guaranteed under article 14 of the Indian constitution. It is often evident that the supreme court has often left lawyers baffled in understanding the contempt allegations as in the case of PN Duda Vs. P. Shiv Shanker. The SC held that the accused was not liable for his remark that all judges are inclined towards rich. Whereas, in the case of E.M.S. Nambooripripad Vs. T. Narayan Nambiar, the accused was held liable for his similar remark that judges are inclined towards rich. This inconsistency creates ambiguity concerning principles such as “manifest arbitrariness” as in Shayara Bano and Navtej Johar judgement given by the constitutional bench of the SC
The action of the SC administration would have been justified, only if Mr Bhushan, would have been taking the defence of unconstitutionality of the offence.
A Matter for the Constitutional Bench?
Article 145(3) of the Indian constitution mandates that when a “substantial question of law is involved” the matter has to be decided by the constitutional bench of the SC. The petition in question involved a substantial question of law as to whether the offence of scandalizing the court is against the embedded values of the constitution or not. It would not have been in contrary to the practice of the court because the idea behind the practice is to avoid any contrary opinion by the same strength bench or a lower strength bench, and further to save the time of the court.
Time to re-consider the practice
It is not the first time that the allocation procedure of SCI has come under scrutiny. In 2018, the press conference by four judges of the Supreme Court, whose centripetal premise was related to the administration of the SC and the business allocation procedure, acknowledged the need to change the procedure of allotment. Recently, a similar contention was raised by Senior Advocate Dushyant Dave as to “why only certain judges get politically sensitive matters”. As, Justice Chelameswar reiterated that even the slightest doubt, is dangerous for the institution.
In order to bring in transparency in the system, technology can play a vital role as it exhibits us to different viable solutions such as- use of artificial intelligence (‘AI’) or a lottery system in the judicial system. In order to maintain the practices of the court, through the use of AI or lottery allocated bench can transfer the case to the bench already engaged with a similar matter. Although this method will bring efficacy, it will be at the cost of diluting the power of the Chief Justice. However, this could help mitigate any preferential allegations as it will prevent the manual allotment of cases. The mitigation of preferential biasness could put the judiciary at a stronger position in the eyes of the public.
“Not only must Justice be done; it must also be seen to be done”.Lord Hewart CJ
The delisting done by the administrative wing of the SC has allowed us to take a position to introspect and question the credibility of imbuing justice in the minds of the public at large. It can create fear in the mind of the public. Brewing suspicion towards the preferential treatment can lead to public fear and mistrust in the esteemed institution. Hence, SC should reconsider its business allocation procedure.