Updated: Aug 22, 2020
Mumbai: The Supreme Court on 20 August 2020 did not pass sentence on lawyer Prashant Bhushan, as it said it would, giving him “two-three days time” to “think over” his statement defending himself for contempt of court.
“You must think over,” said Justice Arun Mishra, who heads the three-judge bench. “We should not give verdict (sic) right now.”
Bhushan said he was unlikely to reconsider his statement, submitted earlier to the court. “I do not think it will serve any useful purpose and it will be a waste of time of the court.”
“My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic,” Bhushan said in his statement. “I did not tweet in a fit of absence mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bonafide belief.”
“Therefore, I can only humbly paraphrase what the father of the nation Mahatma Gandhi had said in his trial,” said Bhushan. “ I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.”
Two tweets from Bhushan in June this year elicited a 108-page response by the Apex Court. It took the court 24 days since the start of proceedings to hold Bhushan guilty for contempt. It has now resumed hearing a contempt case filed by Harish Salve against Bhushan in 2009, for an interview given by the latter to Tehelka magazine.
At a time when the court is not functioning at full capacity, hearing matters only virtually owing to the pandemic, the apex court has dedicated considerable time and resources to Bhushan.
We analyse if other issues pending before it have been accorded the same sense of priority. These issues are not merely academic in nature but have far-ranging ramifications on statehood (Article 370), liberty (habeas corpus), citizenship (CAA) and transparency (electoral bonds).
It follows that any delay in deciding these issues will have equally grave consequences. The lack of a defined methodology and the centralisation of decision-making with the Chief Justice of India—qua listing of cases—ensures that institution as a whole abdicates responsibility without accountability. The argument for an institutional approach to listing of cases has gathered steam in recent years. Here are some cases:
Article 370
Article 370 of the constitution—a special provision that defined Jammu and Kashmir’s link to India and allowed its amalgamation into the Union—was abrogated on 5 August 2019.
A petition by National Conference leaders challenging the abrogation was filed before the Supreme Court on 10 August 2019. It has been 376 days, and the matter remains undecided. Even to decide the preliminary issue of whether the matter ought to be referred to a larger bench, the Supreme Court took 205 days.
The petition was last listed on 2 March 2020 and has not been listed since, with no next date reflecting on the court’s website.
Habeas Corpus
Habeas corpus petitions, designed to keep in check unlawful detentions by the executive, have suffered similar delay and postponement.
This can be tested on the touchstone of J&K’s last democratically elected chief minister, Mehbooba Mufti. The petition, filed by her daughter Iltija on 19 February this year, challenged Mufti’s detention under the Jammu and Kashmir Public Safety Act, 1978 (PSA).
Mufti had been under preventive detention since 5 August 2019 under the Code of Criminal Procedure, 1973 prior to being charged under the PSA on 5 February 2020.
On the basis of Iltija’s petition, the Supreme Court issued notice to the central government on 26 February 2020 and listed the matter on 18 March 2020. The pandemic disrupted this schedule.
Despite the pandemic, the court has found time to resume hearing a 11-year old contempt case against Bhushan, which was last heard in 2012. However, Mufti’s petition, filed and last heard in February, has not been heard since. No next date is reflected on the court’s website. It has been 183 days since the petition was filed.
On 13 December 2004, the Supreme Court had held:
“Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature.”
The court’s approach to Mufti’s case—arguably more powerful and resourceful than the average Kashmiri—does not inspire confidence in the judicial system for Kashmiris detained since the abrogation of Article 370. At last count, 7,357 of them, according to a Ministry of Home Affairs’ reply to a question in the Rajya Sabha in March 2020.
Citizenship Amendment Act
The Citizenship Amendment Act triggered widespread protests and consequent arrests. The Act was passed by Parliament on 11 December 2019 and notified on 10 January 2020.
It was challenged before the Supreme Court on 12 December 2019. On 22 January 2020, the court directed that the Government file its reply within four weeks. It also directed that once the Government’s reply is filed, the challenge be listed in five weeks from such time. In the meantime, it directed that issues involved in the challenge will not be taken up by any High Court.
As per the court’s order, the challenge should have come up for hearing around 25 March 2020. However, the Government filed a reply in March, almost a month later than directed.
Even so, calculating five weeks from then, the challenge should have been heard by late April. Post April, the court continues to issue notices (here and here) in related petitions, tagging these petitions with the principal challenge, but it is yet to start hearing the challenge.
As many as 252 days have passed since the challenge was filed. Going by a computer generated date reflected on the court’s website, the challenge may be listed on 25 August 2020.
Electoral Bonds
The Electoral Bonds Scheme was introduced in the Finance Bill, 2017, and was notified on 2 January 2018. The Election Commission described the scheme as a “retrograde step” that would compromise transparency in political funding.
The challenge to the scheme was filed in the Supreme Court on 4 September 2017. The issue remains undecided. It has been 1,081 days.
On 20 January 2020, the court adjourned the challenge by two weeks for the Election Commission to file its reply and directed that it be listed thereafter. The Commission filed its reply on 27 March 2020.
The challenge has still not been listed since the last hearing in January. Going by a computer generated date reflected on the court’s website, the challenge may be listed on 4 September 2020.
Meanwhile, India has witnessed assembly elections in 16 states and the general election in 2019. Between March 2018 to January 2020,12,452 electoral bonds worth Rs. 6210 crores were sold.
In The Court’s Own Words
“Access to justice would, therefore, be a constitutional value of any significance and utility only if the delivery of justice to the citizen is speedy, for otherwise, the right to access to justice is no more than a hollow slogan of no use or inspiration for the citizen.”
The Supreme Court's own words and its prompt handling of Bhushan’s case reveals its current priorities.
From available evidence, it is clear that the apex court has increasingly exercised discretion to prioritise certain cases, such as Bhushan’s, while not dealing with many with the same sense of urgency.
The constant adjournment and not listing of these cases by the Court appears to be an abdication of responsibility. As the judiciary abdicates responsibility, it cedes space for the executive to assume that responsibility, creating an imbalance in a democratic system.
In adjourning justice, the Supreme Court is denying justice.
(Zaid Sufi Wahidi is a practising lawyer at the Bombay High Court.)