“Prolonged Governor’s rule as a jurisprudence is anti-constitutionalism”

Ashok Bhan is rated as one of the top ten Senior Adovocates within legal fraternity in Supreme Court and all high Courts across the country and acknowledged by international, national and regional bar associations and media.
Ashok Bhan who worked as special senior advocate for the Central Bureau of Investigation (CBI) and argued against YS Jaganmohan Reddy in the disproportionate assets case is now arguing on behalf of Amaravati farmers. Bhan successfully argued for CBI in disproportionate assets case and pitched against the likes of Harish Salve, Mukul Rohatgi, Gopal Subramanyam and Ram Jethmalani.
Bhan started his engagement with CBI in Bofors case in nineties and argued highly sensitive matters namely few Pathribal fake encounter case,Chandraswami case,Kethan Parikh hawala matter,Yaderappa’s corruption case, Mines scandal, Reddy brothers etc. in various High Courts and in Supreme Court.
Bhan has argued matters for internally displaced populations in UNHRC Geneva and domestically in NHRC.He has represented India in UNSC as an expert on conflict resolutions in South Asian region including as an expert on Kashmir imbroglio.
Currently he is arguing the shifting and bifurcation of Amaravati as one capital of AP by Jagan Reddy Govt. into three capitals to different parts of AP. The AP High Court has granted status quo for the time being in the matter.
In an animated chat with the Daily Excelsior Correspondent, Ashok Bhan gives his opinion on various issues in the country.
As a legal luminary how do you view the position taken by the Supreme Court of India vis-à-vis Prashant Bhushan?
“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect”.
– Per Hugo Black J. in Bridges v California (1941) 314 US 252 at 271-72
The concept of contempt of court is several centuries old. In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by himself, and later by a panel of judges who acted in his name. Violation of the judges’ orders was considered an affront to the king himself. Over time, any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.
There were pre-Independence laws of contempt in India. Besides the early High Courts, the courts of some princely states also had such laws. When the Constitution was adopted, contempt of court was made one of the restrictions on freedom of speech and expression. Separately, Article 129 of the Constitution conferred on the Supreme Court the power to punish contempt of itself. Article 215 conferred a corresponding power on the High Courts. The Contempt of Courts Act, 1971, gives statutory backing to the idea.
Criminal Contempt
According to section 2(c) of The Contempt of Courts Act, 1971, criminal contempt means the publication (whether by word, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-
i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
ii) Prejudices or interferes or tends to interfere with the due course of any judicial proceeding, or
iii) Interferes or tends to interfere with, or obstruct or tends to obstruct, the administration of justice in any other manner.
Thus from the abovementioned definition it can be ascertained that these are the important essentials to constitute criminal contempt:
*Publication of any matter.
*The word publication has been given a very wide meaning so far as contempt of court is concerned. It includes words (spoken/written), signs and visible representation. It also includes the publication of any material in the newspaper and magazines, the broadcasting of any material on the radio and exhibition of anything in cinemas, theaters and television.
*If these materials contain anything which scandalizes or lowers or tends to scandalize or lower the authority of any court, prejudices or interferes with the due course of any judicial proceeding or interferes or tends to interfere with administration of justice, it will amount to criminal contempt of the court.
To constitute contempt, it is not necessary that there has been actual interference in the administration of justice. If the act complained of, tends to interfere or attempts to interfere in the administration of justice, may be taken as contempt. The expression ‘administration of justice’ is to be used in a very wide sense. It is not confined to the judicial function of the judge but includes all functions of judges- administrative, adjudicatory and any other function necessary for the administration of justice.
For many years, truth was seldom considered a defence against a charge of contempt. There was an impression that the judiciary tended to hide any misconduct among its individual members in the name of protecting the image of the institution. The Act was amended in 2006 to introduce truth as a valid defence, if it was in public interest and was invoked in a bona fide manner.
The powers of the Indian Supreme Court are undeniably infinite. Contempt is a special power which seeks to preserve the dignity and authority of a court. In my view, the manner in which the Supreme Court has considered the issue of contempt seems to be flawed .The judgement of the Hon’ble Court appears to have failed to consider Prashant Bhusan’s claim to have been bona fide criticism. The more important question which the Supreme Court has not addressed sufficiently is as to how two tweets, even if made in bad taste, has affected the functioning, dignity or authority of the Apex court of the country. From the reactions elicited by the judgement, it appears that the Supreme Court while upholding the majesty of administration of Justice has left many questions for public domain like -“Whether two tweets can unsettle the strength and robust stature of the Supreme Court of India “?
2. Is abrogation of Art. 370 and 35-A legally tenable?
I am appearing and required to argue before the Supreme Court as and when it is listed for hearing,in the constitutional challenge to the Government’s decision to abrogate Art 370. Since the matter is currently sub-judice, it would not be professionally appropriate for me to offer any comment or opinion on this subject.
3. What are your views about Delimitation Commission Constituted for J&K?
There does not appear to be any legal infirmities in its constitution and functioning. The effect of the delimitation exercise may only be appropriately discerned once the Commission has arrived at its findings. This is ultimately an issue largely within the domain of turbulent politics Jammu & Kashmir.It is however relevant to note that the Government would be well-advised to consider the organisation of elections without undue delay. Democratic political mandate is a basic feature of the Indian Constitution and is particularly important in the case of Jammu & Kashmir at present.The prolonged Governor rule as a jurisprudence is anti-Constitutionalism.
4. There is an opinion in a section of society that the Judiciary is under pressure from the ruling dispensation. Comment.
The Indian Judiciary, with its enormous scope of powers to challenge executive action and strike down legislation, has been viewed with suspicion by various governments at the helm beginning from the dawn of independence. Be it land reform in the 50s – 60s followed by the fundamental rights cases,Privy Purse case,Bank nationalisation matters,ADM Jabalpur matter,Public interest causes etc. the judiciary has always been under pressure. Often, we see the Supreme Court taking a staunch and judicious stand against the Government and in other cases, we have also seen the Supreme Court struggle to find a voice. While a degree of pressure is always present and expected, at present the Supreme Court seems to be enthusiastic to support the public causes especially seen in relation to the array of matters that were disposed by the Supreme Court in relation to the covid-19 pandemic, without calling the Government to count on any of the issues. My firm opinion as a practising Senior Advocate for more than four decades is that:
– At the end of the day Judiciary has emerged as the most trusted,Robust,saviour and upright constitutional institution in the the people’s esteem.
5. Do you feel that the shortage of judges in Courts has hit the justice delivery mechanism. If yes, what is the way out?
Judicial vacancies have always been an issue in a country as populous as India. Various law commission reports have made suggestions to bridge the gap. Notably, the idea of a unified judicial service mooted by the Government appears to be promising in triggering interest to young meritorious lawyers in joining the judiciary. While filling up vacancies is doubtless an important issue, the quality of the judgements rendered by the lower courts is also a crucial concern. With the number of times that lower court judgements are overturned and censured, the lapse of the judicial system appear not to be exclusively one of capacity but also of quality. This would require a comprehensive review of the recruitment and training system for judges.
6. During COVID times, the legal fraternity, particularly the lawyer fraternity went out of business? How can the Government help them?
This has been an important period to reflect on the deeply hierarchical nature of the legal profession. While the top-brass lawyers have increased their briefs, being able to appear remotely in various courts and arbitral tribunal around the world, the average lawyer appears to have completely gone out of work without the routine functioning of the Courts. Various bar associations, state governments and voluntary collectives have come forward to contribute sums of money to the lawyers in need. This however only address the concern marginally. The government may consider reform of the advocates act prohibiting advertising, direct benefits transfer and exempting legal fees from professional tax as an antidote to help struggling lawyers tide over these tough times.
7. There has been quite delay on part of the Supreme Court in decision Art 370 related petitions. How do you view it?
Please refer response to Question 2