The Supreme Court (SC) remained a mute spectator as communal riots ravaged north-east Delhi, advocate Prashant Bhushan said on Sunday in his counter-affidavit filed in response to the contempt of court case initiated against him by the top court for his tweets against the apex court and the Chief Justice of India (CJI), SA Bobde.
Bhushan refused to apologise for his tweets stating that it fell within the domain of free speech and also cited the speeches on dissent made by sitting SC judges, Justices DY Chandrachud on February 15 and Deepak Gupta on February 24, when he was a sitting judge before retiring on May 6, to bolster his argument.
“Justice DY Chandrachud, while delivering the 15th PD Desai Memorial Lecture in the Gujarat high court on February 15, had expressed his anguish at the manner in which dissent was labelled as anti-national. Yet, a week later, when the Delhi riots were unleashed, with daily videos emerging of mobs tearing down and burning mosques, the police systematically destroying public CCTVs (closed-circuit TVs) and taking an active part in stone-throwing, the SC remained a mute spectator while the national capital burnt,” the affidavit said.
Bhushan had posted two tweets, one against the SC on June 27 and the second against CJI Bobde two days later.
Both these tweets had led to the contempt of court case against him for which he was served notice by the SC on July 22.
In his tweet on June 29, Bhushan had posted a photo of CJI Bobde sitting on a Harley-Davidson motorcycle, which belonged to the son of a Bharatiya Janata Party (BJP) leader, Sonba Musale.
Bhushan said that the CJI was riding a motorcycle without a helmet or mask, when he was keeping the SC shut, due to raging coronavirus disease (Covid-19), denying justice to millions.
He was referring to the fact that the SC was functioning in a restricted manner during lockdown restrictions due to Covid-19 and was hearing only a reduced number of cases via video-conference since March 24.
Bhushan, in his affidavit, offered a limited apology for that part of the tweet, which said that the CJI was not wearing a helmet stating that he failed to notice that the bike was stationary and Bobde was not riding it but only sitting on it.
“At the outset, I admit that I did not notice that the bike was on a stand and, therefore, wearing a helmet was not required. I, therefore, regret that part of my tweet. However, I stand by the remaining part of what I have stated in my tweet,” he said.
Earlier on June 27, he had tweeted that the SC’s role and four former CJIs in aiding the destruction of democracy will be taken note of by historians in the future.
This tweet, he said in his affidavit, is his impression about the manner and functioning of the SC in the past 10 years and especially about the role the last four CJIs that has led to the apex court failing to check executive high-handedness.
“Such expression of opinion however outspoken, disagreeable or however unpalatable to some, cannot constitute contempt of court. This proposition has been laid down by several judgments of this court and in foreign jurisdictions such as Britain, USA (United States of America), and Canada,” Bhushan contended.
The stifling of dissent under the watch of the SC has not only been adversely commented upon by the court’s retired judges, but even by the sitting ones during the tenure of the four CJIs, he added referring to the speeches by Justices Chandrachud and Gupta.
In defence of his perception that the SC aided in the destruction of democracy, Bhushan referred to the press conference held by four SC judges – Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – in January 2018 against the manner in which cases were being assigned to select benches.
“So serious were the misgivings of the senior sitting judges that they (the four judges) felt compelled to disregard the code of judicial conduct to call a press conference and warn citizens of danger to democracy because of danger to a free judiciary,” Bhushan further submitted.