In 2012, a case was initiated against West Bengal chief minister Mamata Banerjee for contempt of court. The case was filed after she made remarks suggesting an erosion of integrity and increase in corruption within a section of the judiciary.

In a speech in the state assembly, Banerjee had said: “At times, favourable verdicts are given in return for money. These days, judgements are purchased. It is unfortunate that people have to buy justice. I am not afraid of money and muscle power. I am prepared to face the consequences if there is a suit against me, or if I am arrested for my comments.”

Days later, Arun Mishra, the chief justice of the Calcutta High Court at the time, turned down the contempt plea claiming that Mamata “didn’t transcend the ‘Lakshman Rekha’”. He added, however, that the court’s reluctance should not be construed as approval for what the chief minister had said.

Nevertheless, the court’s actions in this case set a precedent: that questioning or criticising the judiciary does not amount to contempt of court. In this case, the fundamental rights enshrined in Articles 19 and 21 of the constitution were upheld.

This month, in possibly his very last verdict, the same Arun Mishra, currently a Supreme Court judge just days away from retirement, found himself hearing a similar case. Except seven years had passed and governments at the Centre had changed. Four Supreme Court judges had held a historical press conference to warn the nation that the top court was politically compromised. Several senior judges had written about the “darkest moments” of the judiciary and how judges now favour the “rich and powerful”. A sitting chief justice had been accused of sexual harassment where the victim was procedurally silenced, and a high court judge who ordered action against governing party members had been “mysteriously” transferred overnight.

On August 14, a three-judge bench held lawyer Prashant Bushan guilty of contempt of court for two tweets criticising the judiciary. A day before his sentencing, Twitter “proactively” took down Bhushan’s posts, stating that the tweets had been “withheld in response to legal demand”.

When Bhushan argued against conflating contempt and criticism, Justice BR Gavai dismissed his defence, saying it can be upheld only if critics are “instruments of reform” and not “hostile criticism of judges as judges or judiciary” which he said would amount to “scandalising the court”.

Last week, during Bhushan’s hearing, the attorney general of India, KK Venugopal, attempted to place before the judges the fact that what Bhushan had said was not new or unique. He said, “I have nine judges of the Supreme Court saying that there is corruption in the higher judiciary...I myself made a speech in 1987 in the Indian law institute..."

At this point, Mishra stopped him from completing his statements. Yesterday, Venugopal once again attempted to point out that since Bhushan’s allegation involved “third parties” — the judges against whom his comments were made — and asked: “Can his defence be taken into account without hearing those judges?” This was dismissed by the court claiming that it would lead to a “neverending enquiry”.

Seven years ago, during the hearing of Banerjee’s contempt case, advocate Samaraditya Pal had told the court that the chief minister could be exonerated if she could prove her allegations by providing evidence. Bhushan, however, was not given this opportunity.

Instead, on August 20, despite Bhushan saying he needed no time to rethink or reconsider his statements, Mishra decided he would be given time to do so anyway — which Bhushan’s lawyer Rajeev Dhavan called an “exercise of coercion” in court yesterday.

Bhushan subsequently filed a supplementary affidavit on August 24, where he made it clear that apologising would be a “contempt of his conscience”. Earlier this month, he had filed a 142-page affidavit making a case for freedom of speech and constitutional order where he outlined how the apex court and the last four chief justices of India played a role in the substantial destruction of democracy.

But what happens when you don’t apologise?

In 2002, the Supreme Court was not pleased with writer Arundhati Roy’s refusal to show remorse for comments she had made against the judiciary. In order to maintain the “glory of the law”, the apex court held her guilty of contempt and, in a symbolic gesture, fined her Rs 2,000 and sent her to prison for a day. Like Bhushan, Roy too stood by her word. Bhushan had been her lawyer at the time.

Twelve years later, Bhushan finds himself facing similar resentment from the court. When the Supreme Court issued Bhushan a showcause notice on contempt proceedings, over 130 dignitaries, including Roy, urged the top court to “reconsider” and “withdraw” its decision. Signatories, who included former judges, retired senior government officials, politicians, former ambassadors and activists, said this move by the court was an “attempt at stifling criticism”.

Yesterday, after giving Bhushan time to rethink and retract, the court convened to hear the case against him. The lawyer continued to hold his ground and his counsel, Rajeev Dhavan, opened a debate by questioning how much of the court’s free speech jurisprudence has to be read into suo motu contempt powers?

With Bhushan standing firm, the court found itself in an unexpected conundrum. At around 1 pm, Mishra asked: “What can be done if he thinks he [Bhushan] has done no wrong?” The attorney general appealed to the court’s “broad shoulders” and its ability to take criticism — a claim made by the court while hearing the contempt case against Roy.

When Mishra said Bhushan can have a disagreement with a judgement but not a judge, Venugopal said Bhushan had always spoken of the apex court with the greatest respect, pointing out that Bhushan had been appointed as an amicus curiae, or friend of the court, on several occasions.

Breaking for lunch, Bhushan was given another 30 minutes to “think over”. When the court reassembled, Dhavan said his client will not make an apology to simply escape the “clutches of law”, LiveLaw reports. “Can the court ask him to not criticise the court?” he said. “Can the court silence him?...We’re not asking for mercy. We’re asking for statesmanship.”

The hearing concluded after an exasperated Mishra asked, “What is wrong in using the word apology?”

The court adjourned the hearing in the case to September 10.

***

The media industry is in crisis. Journalists, more than ever, need your support. You can support independent media by paying to keep news free. Because when the public pays, the public is served and when the advertiser pays, the advertiser is served. Subscribe to Newslaundry today.