Indra Jaising on Bhushan contempt

Is Indra Jaisingh, whose notion of 'Transformative Constitutionalism' I have critiqued, capable of writing a single sentence which is not false, foolish or wholly fatuous? Let us look at her article in Quint-Bloomberg on the Bhushan contempt judgment. 

We have all known that the personal is political for a very long time.

We all know that the personal is not political. Whereas we may have a duty to behave in a consistent political manner on political matters we have an immunity with respect to personal matters. Thus I may be a right winger but I am justified in scratching my arse with my left hand because that is my personal preference.

But when it comes to institutions, there is a sharp distinction between the two.

Nonsense! The same distinction applies in either case. Either you act in an official or a personal capacity. In the former case, the doctrine of ultra vires applies. In the latter you may have a Hohfeldian immunity.  

The institution of the judiciary is a constitutional one.

No. The Judiciary is an institution which may or may not have a constitutional role. The same is true of the Legislature or the Executive or anything else.  

Those who occupy the offices of India’s higher judiciary fill the roles in these offices.

What offices? Constitutional offices? But all sorts of offices- including the Presidency- are constitutional. Does Jaisingh think the President is a Judge? What is wrong with her brain? Is she completely senile?  

The office and the office-holder are always distinct.

In the same way that a chair is distinct from the person sitting in it.  

Judicial authority has been vested in these offices to discharge constitutional functions and not protect themselves personally.

This is true of any type of authority vested in any type of official holding any official position whatsoever. An Army General can't use the troops under his command to protect his own property. He can only order them to protect such things as he has received orders to protect. However, he may, in accordance with Army regulations, punish offenses against his own person by soldiers if and only if this is necessary for the proper discipline and functioning of the Army. He may not do so out of spite or sexual jealousy or some other personal motive.

The same is true of Judges. If the offense is against their person and was not intended to bring the court into contempt or tend to affect the administration of justice then they have a private remedy. If this is not the case, they can use contempt proceedings in the same way that Army officials use Court Martial proceedings. 

Prashant Bhushan has been found guilty of criminal contempt because he was not interested in attacking the personality or anything pertaining to the personal of various Chief Justices. He was concerned with falsely, maliciously, and in a mala fide manner spreading the canard that CJIs are conspiring to destroy democracy in India and that one of them used the COVID lockdown to deny access to justice to the masses. In their judgment, the Bench clearly distinguished personal affront from criminal contempt. It was the latter for which Bhushan was convicted. Jaising falsely, maliciously and in a mala fide manner states that Judges had a personal grudge and punished Bhushan in an illegal manner. Can Jaising provide any evidence or legal reasoning for her assertion? No. She is a cretin telling cretinous lies. 

When judges do not make this distinction, the specter of “criminal contempt” returns and this is perhaps best illustrated by what happened on Friday to Prashant Bhushan.

Specters, or ghosts, or goblins, don't exist. Criminal contempt does exist. This woman is too stupid to understand this. How shite a lawyer was she? 

Parliament had enacted a law in relation to contempt of Court in 1971 and then some thirty five years later made an amendment providing a defence of justification by truth for bona fide actions in the public interest.  

Though Parliament laid down a legislative framework for criminal contempt, the Supreme Court has retained its inherent jurisdiction on the matter and has decided this may be activated ‘suo moto’ i.e. on the court’s own motion.

As a matter of fact Bhushan's prosecution began with a young lawyer's complaint which the Bench took suo moto cognisance of. What is wrong with that? Parliament had provided Bhushan with a defence, if he was telling the truth. But he didn't tell the truth. He lied. 

In this case, a contempt petition was presented without the approval of the Attorney General, a requirement under the Act.

No. The Act does not say the A.G's approval is necessary. But it is sufficient for such proceedings. It says that the Supreme Court can detain anyone it likes for contempt against itself and can take suo moto cognizance of any such matter.

Jaising does not understand that a sufficient condition is not a necessary condition. She is as stupid as shit. The license of her 'Lawyer's Collective' NGO was cancelled. But it is the woman herself who should be disbarred. She is either a barefaced liar, or a senile cretin. In either case, she must not be allowed to give legal advise.

The court on its administrative side took a decision to allow it to proceed as a suo moto matter bypassing this requirement.

There was no such requirement. There would have been an obligation to prosecute if the AG had pushed for it, but an obligation is not a requirement to prosecute. The Bench says it took suo moto cognizance. Why? Because it agreed that that this was prima facie criminal contempt. Bhushan did not apologize. The Court found he lied. He was found guilty. 

The administrative decision to do so, however, has not been made available for either review or scrutiny.

There is no such requirement unless there is res ipsa loquitur grounds to believe some negligence occurred or damage was sustained. But this remedy is only available to the person bringing the complaint. Once suo moto cognizance of the offence has been given, there is no further remedy. 

It is obvious that the Bench would know that it wasn't part of a conspiracy to damage democracy. Thus no negligence could occur in its administrative decision. Suppose, because of some bureaucratic ballsup, the criminal contempt charge did not wind up on the Judicial side. Who would have been injured? Not Bhushan. It was the complainant. He may have had locus standi to demand a review. But Bhushan has no such leg to stand on. 

We are left in the dark to know how this happened.

But the Bench in its ruling has shed all necessary light on how this happened! It seems the CJI did not decide and left it to Justice NV Ramana on the Administrative side to approve it and pass it to the Judicial side. The relevant case is PN Duda v P Shiv Shankar where one issue was wrongful failure by the Bench to pursue Contempt charges brought by private parties who had failed to secure the Attorney General's backing. 

 Jaising is pretending that she does not understand how a Bench which knows it isn't part of a conspiracy to damage democracy can also know it need inquire no further in order to take suo moto action on a complaint where clear evidence of criminal contempt is provided. 

We know that we know certain things pertaining to our motivations and actions. We are not required to explain how we come to know these things. I may say- Jaising does not wipe her own butt. Thus, she has a shitty butt. I am fully entitled to say this. Why? This shitty woman has left us completely in the dark as to how she could possibly know when she needs to wipe her butt or how she is able to find it for the purpose of wiping it. She may be wiping other people's butt but leaving long turds protruding from her own anus. It is a mathematical certainty that she  has a very shitty butt indeed. The manner in which she is administering butt wiping services is completely opaque. She must be smearing shit all over the place! It is likely this article was written in her own feces. She should be immediately treated as lacking capacity to look after herself. She should be confined to a care home. 

Jaising is a barefaced liar- probably because she has been trying to use her head to wipe her bum- who says that the Bench has 'bypassed' an Act of Parliament which specifically affirms the Bench's suo moto right of cognizance of criminal contempt. But, the judgement in the Kurle case explicitly states that this suo moto power arises from the Constitution in a manner superior to any that results from subsequent legislation!  The Attorney General is given the right to put forward such cases but so are certain other Law Officers. But this is a sufficient, not a necessary, condition for prosecution. In this case, the BJP's law officers had no beef with Bhushan. The crazy guy is Kejriwal's enemy. He wasn't attacking Modi. He was attacking the Bench. So, they stood back and had a hearty laugh as the Bench took Bhushan to task on the basis of a complaint by a young protege of Subramanian Swamy. 

Bypassing the Contempt of Courts Act and the need to obtain the sanction of the Attorney General, the court relies on Article 129 of the Constitution as being a court of record with power to convict for contempt.

In other words, the Bench affirms that its suo moto right has a superior origin to the Parliamentary Act where it is reaffirmed. But this had already happened in Kurle! A lawyer was given a 3 month sentence and barred from the Supreme Court for a year. 

This is not a case of 'bypassing' at all. It is in line with Kurle.  As a matter of fact, the Act specifies the Bench had the power to lock up Bhushan while they decided the case at their leisure. 

The Executive is delighted that the Bench is at loggerheads with 'activist' lawyers. Why? Now the Judges know what it feels like to be 'damned if you do and damned if you don't'. Successive Governments evaded responsibility for deciding vexed or wedge issues by referring the matter to the Bench. The Bench should have politely handed them back under something like a doctrine of political question. Now the chickens have come home to roost for the Bench. Either they punish Bhushan in a condign manner or they concede that Contempt charges are a toothless sanction- at least against lawyers. 

Nobody disputed that power. What was in dispute is the procedure prescribed by law to activate that power, namely compliance with the Contempt of Courts Act.

This is done simply by saying 'we take suo moto cognizance of this case'. The Bench can proceed how it likes provided it thinks it is doing so in a fair manner.  There is no dispute about this. Jaising is simply lying.  

The court would have only grown in stature if it had invited the Attorney General to have his say and create the first level of scrutiny of the application for contempt.

The Court did ask the Solicitor General, Tushar Mehta, to come in against Bhushan. There was no question of 'scrutiny'. The Bench knew it had been scandalized because the thing was obvious. But they wanted a Government lawyer to frame the arguments under which Bhushan could be convicted. 

There is a purpose behind this safeguard.

There is no safeguard. The AG and some other Law Officers can force the Bench to try people for criminal contempt. But the Bench can also do so suo moto.  

Not every contempt need be prosecuted, it is a policy decision that the Attorney General takes in the public interest.

Or which the Bench takes in its own proper interest. 

Is this even constitutional

Yes. Only the Supreme Court can say what is or isn't constitutional.  

...being held guilty of a crime without a charge being framed,

if no charge was framed what on earth was Bhushan's affidavit about? Seriously, I really want to know. The thing is a pile of shite.

or the red herring on mal-intention to scandalise the court?

If you are found guilty of a crime, it is not a 'red herring'- i.e. something dragged up to confuse matters. Jaising's lies are examples of 'red herrings'. She says- 'oh! AG has to certify!' But this is not true. Then she says 'oh! no charges were framed!' but this is not true. Then she says 'mal-intention to scandalise the court is red herring!' But that is not true. It is the crime for which Bhushan has been convicted.  

This alone

which alone of Jaising's lies? 

makes the judgment erroneous in law, anti-constitutional, and a great setback for the rights to life and free speech.

This lady used to get foreign money by talking this sort of bollocks. Whitey thought- 'she is a brave lady. Her English may be poor. Her thinking may be muddled. But India is a shit-hole. What better can you expect? Give her some money and then tell your big donors that you have done something wonderful for 'Human Rights' and 'Civil Liberties' in a shit-hole country. 

The problem was that Jainsing and Co were a bunch of stupid, greedy, liars. They ate all the money and did no good whatsoever. 

What was the result? Good lawyers- like Sushma Swaraj and Jaitley- could hold high Cabinet posts while bad lawyers- or liars- like Bhushan had their pants taken down by Kejriwal or else had their license to get foreign NGO money cancelled. These lying shitheads are now very angry. The whole nation mourned for Swaraj and Jaitley. These guys, who once seemed more promising, are now regarded as nothing but a nuisance. Shanti Bhushan became a Union Law Minister. Prashant Bhushan couldn't get appointed rat-catcher by the Delhi Administration. He was ignominiously expelled from the 'Common Man' Party.

It is interesting to note that the court chose a practicing lawyer—one as they point out who has been practicing for 30 years—to hold guilty of contempt of court.

But, just three years ago, they put a High Court Judge- who seems to have gone a bit crazy- in jail for six months for Contempt. They put a three month on a lawyer who tried to browbeat the Court. Jaising, it is not interesting to note, is lying. Why is this not interesting? It is because she has never done anything else.

Lawyers are the front-line defenders of the independence of the judiciary.

Judges defend the Judiciary's independence. Lawyers defend their clients. 

They, more than anyone else, know what is going on inside the courts.

But Judges have a superior knowledge of what they themselves are doing.  

Judges are their former colleagues and lawyers see judges perform—or not—day in, day out.

Judges see their colleagues day in, day out. They alone know whether there really is a conspiracy amongst themselves of the type Bhushan describes. By comparison, lawyers see Judges less often than they see their clients.  

Jaising pretends that lawyers are a homogenous body. Yet their profession is essentially adversarial. Bhushan is in hot water because a young lawyer complained about his tweets.

Judges come and go but lawyers stay.

Lawyers can get disintermediated if they are shite. Jurisdiction shopping occurs. Since Indian lawyers are rubbish, some Companies prefer to sue in London.  

They watch one Chief Justice after another come and go and take or reverse decisions according to their individual views. Lawyers document judicial history in their memories, better than anyone else.

But no two of that trade can ever agree on anything. The day may come when lawyers disappear from India. It is unlikely they will be mourned. 

One of the two tweets in question was a comment on a photo of the Chief Justice of India in casual clothes on a motorcycle, a Harley-Davidson. The judgment acknowledges that this is a “personal” matter. The judges are conscious of the distinction between the personal and the institutional. Where then does the problem arise?

 The comment was not personal merely. It alleged that the CJI was keeping the Courts closed so as to go off gallivanting on an expensive motorbike in cahoots with some BJP leader. In fact, the Courts were not closed. Bhushan was lying and what's more he knew the Bench knew he was lying. It was 'common knowledge' in the game-theoretic sense, that Bhushan was a liar. That's where the problem arose. He had no defense against the charge of criminal contempt because he knew the Bench knew he wasn't telling the truth. 

It’s the comment on the courts being locked down denying access to the public that has enraged the court.

Because they knew that Bhushan knew that video-conferencing was plugging the gap.  

From then on, the judgment can truly be described as being ‘personally’ directed at Prashant Bhushan,

Nonsense! No Judgment of any court can be described as being 'personally directed'. If such were the case, a right to privacy would apply.  The thing could not be published save by express permission. Jaising is just making this shit up.  

losing its constitutional dimensions.

What 'constitutional dimensions'? All Court Judgments are either Constitutional or they aren't. Supreme Court Judgments may, by the Supreme Court itself, be found to be unconstitutional. But, while they stand, they are the stare decisis law of the land. Does Jaising really not know this? 

What exactly is his crime – his identity?

His crime is 'criminal contempt'. The Judgment also states his identity. Why is Jaising pretending otherwise? 

He is an officer of the court with 30 years of work, including work in defense of democracy and demanding judicial accountability. 

Justice Karan had been an officer of the Court for over 20 years. He was a High Court Judge for about 7 or 8 years. He was jailed for contempt. Bhushan approved. 

He has accessed the court during the lockdown for relief against malicious prosecution and got relief. Therefore, his tweet is malicious and scurrilous. Is that logical?

He did not get relief from malicious prosecution. But he was heard. So it was malicious and scurrilous for him to deny that relief was being not being given because CJI's were using the excuse of the lockdown to bunk off work. The case against Bhushan is entirely logical. 

We are told that the court has handled 626 writ petitions and a total of 12,567 cases during the lockdown.

Which proves Bhushan was lying. 

 Yet, the important questions about the lockdown in Jammu & Kashmir remain pending before the court including questions about personal liberty. 

So what? Lots of cases have been pending for hundreds of years. We know that habeas corpus is no remedy where, as in J&K there is a draconian Preventive Detention Act such that 'subjective satisfaction' is the criteria for detention.

It is clear as day to anyone following the critique about the Court, that Bhushan’s comments were not about the 12,567 cases heard during the lockdown

Jaising is lying. It was not clear to me that Bhushan's tweet was about unheard cases. Why? Because he did not mention that some cases were heard and some were unheard. I thought he meant no cases were heard while the CJI was driving around on a bike belonging to some BJP leader. Bhushan admitted that CJI did not ride the bike. But he would not apologize for the rest of his tweet. That's why he was found guilty. 

Why is this stupid woman quoting Statistics? It seems she believes-

Statistics alone don’t tell you the whole story. 

No. They alone tell you the whole story. If zero cases were heard, Bhushan has a defence of truth. If 12,000 cases were heard, he is a liar guilty of criminal contempt.

It is what you hear, when you hear it, and why you hear it that matters. 

Not according to any Court of Law. I may overhear two people plotting to kill a third while I myself am taking a dump. This circumstance has no bearing on the probative value of my testimony. 

In a system when judicial time is in short supply, how you allocate court time determines the quality of justice. 

No. The quality of justice is determined entirely by the nature of its outcomes. How court time is allocated has no necessary connection with this.

It is not measured by its quantity alone but by its quality. 

Which quality? If it is the quality of justice, then Jaisingh has uttered a tautology. But, it may be the case that zero Court time allotted to a bogus matter improves the quality of Justice. That is generally the case with the stupid shite her ilk bring to Court. 

The selective nature of the Supreme Court’s determination of what constitutes ‘urgency’ is something that has been under critique for some time now. 

Indeed! They should bar illiterate or obviously attention-seeking affidavits. 

But the judgment proceeds to attempt to personally defend 

No judgment of a Court is a 'personal' defence of anything. It is wholly official. 

that conduct of the Supreme Court rather than analyse if such a critique rose to the level of contempt. 

Jaising is pretending that Bhushan was charged with contempt for publishing a 'critique'. But two tweets do not a critique make. He lied in those tweets and committed criminal contempt for which he has been found guilty. 

It is almost as though through this judgment, the Court is attempting to rebut Bhushan, that too without an opportunity of being heard, or tried as charged. 

The ratio of this judgment can have nothing to do with a critique. It must concern the content of two brief tweets. I may think it is almost as though Jaising is writing this using her own feces because she is a senile nutcase who never knew the law and who cheated foreign NGOs. But that is merely a matter of opinion. 

We are told that the comment on denial of access to justice is “false to his knowledge”. But there is a difference between a comment which is “false“ that is factually incorrect and once which is false to his knowledge. 

No there isn't unless there is evidence of mental impairment. Bhushan had been able to approach the Bench during the lockdown both as lawyer and litigant. He lied about this in his tweet. He could have said 'I was not in my right mind. I apologize'. But he didn't say that. So he has been found guilty. 

Moreover, how can an opinion I hold be “false to my knowledge”? 

Because you are a lying cheating scumbag whose opinion is that the truth does not matter at all. Many virtue signallers are hypocrites. The opinions they articulate are at variance with the facts they acknowledge. 

Prashant Bhushan held the opinion that access to justice was being denied. 

Because that opinion, despite conflicting with the truth, was one he wanted to have. He wanted to be a lying cheating scumbag. 

The judges did not think so based on facts and figures.

The judges confirmed the only relevant fact- Bhushan was a liar guilty of criminal contempt on the basis of his own admission. 

 What to hear what not to hear is a conscious decision, and hence if citizen Prashant Bhushan comments on it, how does it become mala fide?

Bhushan said the Bench, in a mala fide manner, was not hearing cases for a nefarious purpose. He was lying. His tweets were malafide. That is why he was found guilty of criminal contempt. 

 This is where the constitutional becomes personal.

The Constitutional never becomes the personal. It is not the case that Judges or others holding Constitutionally mandated offices are ever obliged to come give you kisses and tuck you up in bed.

 The judges are willing to concede that bona fide differences of opinion on the functioning of the judiciary are permissible in the interest of improving the institution. But on what basis do they find Prashant malicious? 

On the basis that he knowingly lied with a malicious intention. 

What follows is a refusal to deal with the factual material on record.

The question was regarding the factual content of two tweets. This was properly dealt with. Jaising herself quotes the judgment- 

 “The tweet clearly tends to give an impression, that the Supreme Court, which is a highest constitutional court in the country, has in the last six years (emphasis supplied) played a vital role in destruction of the Indian democracy. There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of judiciary. We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.” 

According to the Law, the Supreme Court decides what is or isn't criminal contempt. Their judgment makes clear that they think Bhushan's comment had a certain tendency and they were empowered, having made that decision, to proceed to find him guilty. 

If, as the court rightly notes, the question of whether ‘democracy is dead’ in India is a political question, then how can a critique of the guardian of democracy not be anything but permissible political speech? The answer is supplied by the relevant Statue. If the Bench decides something is not permissible political speech and that it is contempt of court, then that is exactly what it is. 

The Supreme Court is the guardian of the constitution and democracy. 

It is certainly its own guardian with powers to punish contempt. It is not necessarily the guardian of the Constitution or of Democracy. It may want to be but may lack capacity. 

A valid critique of the state of the democratic space in India must within it include the right to critique the actions of the guardians.

Nonsense. A valid critique is one which is truthful, utile, and in conformity with established protocols. It can't itself include any rights. Why? It is a critique. It may suggest that certain rights be established or abridged. That is a separate matter.  

 But this sudden movement

There has been no 'sudden movement'. Jaising is lying again. 

 to hold the former permissible speech 

this case does not establish anything affirmative of that sort. Jaising is lying. 

but the latter to be prohibited shows 

nothing at all. Jaising is uttering a non sequitur. 

that Prashant Bhushan was held in contempt not merely because the Court found what he said to be contemptuous, but it was because it was Prashant Bhushan who said it. 

No. Bhushan knew he was lying and the Bench knew he knew they knew he was lying. This was not because Bhushan was Bhushan but because he was one of many lawyers who had been heard by the Bench during the lockdown. In other words, it was because he was a member of class of people who knew the truth that he was known to be guilty. 

Which makes it seem like a personal battle between the Bench and a member of the Bar playing out as a contempt trial. 

Like most of her sentences Jaising's sentence is ungrammatical. Why won't Bloomberg.Quint edit her ramblings? Are they deliberately trying to make a laughing stock out of this elderly shithead?

Speaking for myself, I am a lawyer since I believe that I am performing a constitutional function in defending by my advocacy our common fundamental freedoms and liberties. 

Speaking for the rest of us, I say Jaising is shit. She collected money and garnered some fame posing as one of the good guys. But the Law needs smart, truthful, people. She and Bhushan weren't smart and truthful. They have contributed to the decline of Indian jurisprudence.