When the Supreme Court has reinstated an employee who had accused the then Chief Justice of India Ranjan Gogoi of sexually harassing her, how can it haul up activist Prashant Bhushan for contempt for voicing his bona fide opinion about the judiciary and an action of the incumbent Chief Justice, senior advocate Dushyant Dave asked on Wednesday.

The top court on July 22 initiated contempt proceedings against Bhushan for a tweet about Chief Justice S.A. Bobde posing on a Harley Davidson and another alleging that democracy had been destroyed in the country during the last six years under the last four Chief Justices.

Dave appeared for the activist before a bench headed by Justice Arun Mishra and including Justices B.R. Gavai and Krishna Murari.

“The Supreme Court has taken back the woman who raised sexual harassment charges against a former Chief Justice of India. What does that mean? It says there was truth in her allegations.… When allegations are made against the highest constitutional functionary, please, for God’s sake, do not suppress it,” Dave pleaded.

Had her allegations been untrue, these would amount to contempt, Dave said. But since the top court chose to reinstate her in January this year, it suggests that what she alleged was the truth, for which no contempt arises.

“Your Lordships may look at the case against Mr Bhushan in the same light. She (the alleged victim) was reinstated and all the charges against her were dropped. It only clearly shows that she was speaking the truth. Was any contempt issued against her? What kind of impression does it give to the world?” he asked.

Bhushan too cannot be hauled up for contempt for voicing his “bona fide impressions” of the judiciary and the action of the present Chief Justice, who had posed on the “Rs 50 lakh” Harley-Davidson during the Covid lockdown which has been cited to close the Supreme Court, Dave contended. People seeking enforcement of their fundamental rights do not have access to the court, Bhushan had noted.

“Tell us whether motorcycle has political colour; I am asking on the lighter side,” Justice Mishra said. The motorcycle Chief Justice Bobde posed on is registered in the name of a BJP leader’s son. However, sources close to the Chief Justice had said the bike had been brought to him by a Harley-Davidson executive and he did not know who the owner was.

The tweets by Bhushan were statements of fact that in no way scandalised the court, the lawyer contended.

“The two tweets are not against the institution. They are against the judges in their personal capacity regarding their conduct. They are not malicious and do not obstruct administration of justice,” Dave submitted.

Returning to the sexual harassment complaint against Gogoi, Dave said that despite the allegations, the former Chief Justice had been accorded a Rajya Sabha seat by the present government.

“A judge (Ranjan Gogoi) sits on a Saturday in his own case regarding sexual harassment and subsequently gets a seat in the Rajya Sabha with Z-plus category security, which he (Bhushan) said had raised serious question marks over his (Gogoi’s) decisions in the Rafale, Ayodhya and CBI director case,” Dave argued.

Gogoi File picture

No one is infallible

“Nobody can claim to be infallible, including judges,” Dave said, pleading that Bhushan’s tweets were posted in the course of his expressing deep anguish at the way several cases, including those relating to the abrogation of Article 370 and the anti-CAA protests, were being dealt with by the top court.

There were serious misgivings among the bar and general public over the manner in which some “politically sensitive” cases are allocated, he contended.

“For instance, why do only certain judges get politically sensitive matters? Justice (R.F.) Nariman, for example, never gets assigned such matters,” Dave said.

Justice Mishra replied: “Justice Nariman had been part of many constitution bench matters in this court.”

Justice B.R. Gavai said Justice Nariman was also part of the bench that heard the row over the powers of the Manipur Speaker. Dave asked that if judges can criticise the institution, why can’t Bhushan?

He recalled the unprecedented news conference held on January 12, 2018, by four sitting judges of the Supreme Court who had said that the administration of the Supreme Court “was not in order and many things less than desirable were happening”.

“There is nothing wrong in one not withholding views when you feel that everything is not hunky-dory in the Supreme Court. Can I be held for contempt for expressing my views?” he asked.

The Supreme Court’s healing touch was required, the lawyer said.

“It will be no good for the institution. I beg you to ignore it,” Dave said, pleading that the court drop the contempt proceedings against Bhushan.

“The comments were not out of malice or vendetta. They were made out of love and affection for the judiciary. People like Mr Bhushan take up issues that many a times the executive is not willing to do.”

Bhushan fit for Padma Vibhushan

The Supreme Court had itself lauded Bhushan for espousing public interest litigations in earlier high-profile cases such as the 2G spectrum scandal and the coal scam.

“Your Lordships have appreciated Mr Bhushan’s work in matter of allocation of 2G licences, coal-block allocation, mining in forests etc.… Perhaps you would have given him a Padma Vibhushan for the work he did in the last 30 years,” Dave said.

The court reserved its judgment.