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SC holds Prashant Bhushan guilty of contempt for his tweets In a strongly worded judgment, a three-judge bench headed by justice Arun Mishra said that the allegations levelled in the tweets against the court and CJI are malicious in nature and have the tendency to scandalize the court and such conduct is not expected from Bhushan, who is a lawyer of 30 years standing at the Bar.Updated: Aug 15, 2020 00:33 ISTBy Murali Krishnan, Hindustan Times New DelhiAn attack on the Supreme Court will hamper not just the confidence that the public has in the Supreme Court but will also shake the confidence that judges of other courts in the country have in the Supreme Court. (Hindustan Times)Advocate Prashant Bhushan’s tweets of June 27 and June 29 , one criticising Chief Justice of India (CJI) SA Bobde and the other raising questions about the conduct of former CJIs and the court are based on distorted facts and have the effect of destabilizing the foundation of the Indian judiciary, the top court ruled on Friday, holding the activist lawyer guilty of criminal contempt of court in a decision that provoked extreme reactions.In a strongly worded judgment, a three-judge bench headed by justice Arun Mishra said that the allegations levelled in the tweets against the court and CJI are malicious in nature and have the tendency to scandalize the court and such conduct is not expected from Bhushan, who is a lawyer of 30 years standing at the Bar.“The Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand,” the bench which also comprised justices BR Gavai and Krishna Murari said. The quantum of punishment — contempt could mean a fine and up to six months in prison — will be decided on August 20.While some supported the court’s actions, pointing out Bhushan’s own support for such actions in 2017 when the court took high court judge from Tamil Nadu, Justice CS Karnan, to task for making allegations against Supreme Court judges, others said the court was being a tad touchy in seeing comments against individual judges as those against the court.The view aired by Bhushan is not different from the views held by many people. That the court had to pick out two of Bhushan’s tweets and hold him guilty of criminal contempt smacks of insecurity from the realisation that the image of court in public eyes is very low. It seems like an attempt to scare people into respecting the court,” senior resident fellow at Vidhi Centre for Legal Policy, Alok Prasanna Kumar, who is also a member of Campaign for Judicial Accountability and Reforms, of which Bhushan is a convener, told HT.“There is a world of difference between an allegation that Supreme Court is a poor defender of democracy and a statement alleging corruption or collusion with other arms of state. The former is protected by freedom of speech under Article 19(1)(a) of the Constitution while the latter can be penalised by a law protected under Article 19(2) which provides for exceptions to free speech. The tweets in question fall under the latter category,” Supreme Court lawyer Kanu Agrawal said.Bhushan himself was unavailable for comment but in his defence to the court in his affidavit filed on August 2 had said that “I am entitled to form, hold, & express (opinion) under Article 19(1)(a)”.The court observed that Indian judiciary is considered by the citizens as the last resort when they fail to get justice elsewhere. An attack on the Supreme Court will hamper not just the confidence that the public has in the Supreme Court but will also shake the confidence that judges of other courts in the country have in the Supreme Court.Further, if a malicious attack against the highest court is not dealt with the requisite degree of firmness, “it may affect the national honour and prestige in the comity of nations”, the court added.Bhushan who is part of the institution of administration of justice should have protected the majesty of law; instead he indulged in an act which tends to bring to the institution of administration of justice, the court noted.India’s contempt of court law is derived from British law, but in 2013, the United Kingdom abolished ‘scandalizing judiciary’ as a form of contempt of court on the grounds that this went against the freedom of expression while retaining other forms of contempt like behaviour causing disruption or interference with court proceedings.The court had also initiated contempt proceedings against Twitter but the same was closed on Friday after the court was satisfied with the social media platform’s explanation that it is only an intermediary and had also suspended the controversial tweets immediately after the top court initiated the case.Bhushan posted two tweets, one against the Supreme Court on June 27 and another against CJI Bobde on June 29.Mehek Maheswhari, an advocate, filed a petition before the Supreme Court on July 9 seeking initiation of contempt of court proceedings against Bhushan for the tweets. As per law, a contempt petition filed by a private individual should have the consent of the Attorney General before it can be listed before the Supreme Court for hearing.Maheswari’s petition did not have such consent but the court decided to proceed suo motu (on its own) with the contempt case after the registry brought the petition to the notice of the court on the administrative side.The court listed the case for the first time on July 22 and issued notice to Bhushan the same day.Bhushan’s first tweet, reproduced in the court order, said: “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.”The second referred to the Bobde and was also cited in the order. It said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”Bhushan refused to apologise for his tweets, contending they are protected by the freedom of speech guaranteed under Article 19 of the Constitution. He cited the speeches on dissent made by Supreme Court judges DY Chandrachud on February 15 and Deepak Gupta on February 24 to buttress his case.In defence of his perception that the Supreme Court aided in destruction of democracy, Bhushan referred to the press conference held by four judges – justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph -- of the Supreme Court in January 2018 against the manner in which cases in Supreme Court were being assigned to selected benches.Regarding the tweet of June 27, the apex court held that tweet is directed against the Supreme Court and gave an impression that the apex court and its four CJIs had a major role in the destruction of democracy in the last six years.“There is no doubt that the tweet tends to shake the public confidence in the institution of judiciary. The tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI,” the court said.Regarding the June 29 tweet, the court said that it was intended to give an impression that the CJI kept the Supreme Court shut denying fundamental rights to citizens even though the court was functioning through video conferencing.However, this, the court, held was patently false because the court was functioning through video conferencing though physical functioning of the court was suspended due to Covid-19.“Immediately after suspension of physical hearing, the Court started functioning through video conferencing. The total number of sittings that the various benches had from March 23 till August 4 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution,” the judgment highlighted.Thus, the two tweets were not fair criticism of the functioning of the judiciary, or made in good faith or public interest, the court held.“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…. The tweets which are based on the distorted facts, in our considered view, amount to committing criminal contempt,” it ruled.Another suo motu contempt petition is pending before the same bench against Bhushan for calling past chief justices corrupt in a 2009 interview to Tehelka magazine.Bhushan, in that case, had offered an explanation for his statements but the Supreme Court refused to accept it and ruled, on August 10, that it will proceed with the case. That case is now listed for hearing on August 17.Minutes after he was held guilty of contempt of court on Friday, Bhushan along with senior counsel Dushyant Dave appeared before another bench headed by justice L Nageswara Rao in a public interest litigation seeking inquiry into the alleged non-transparent manner in which the central government handled the Covid crisis.That matter was adjourned for detailed hearing next week.

SC holds Prashant Bhushan guilty of contempt for his tweets In a strongly worded judgment, a three-judge bench headed by justice Arun Mishra said that the allegations levelled in the tweets against the court and CJI are malicious in nature and have the tendency to scandalize the court and such conduct is not expected from Bhushan, who is a lawyer of 30 years standing at the Bar.Updated: Aug 15, 2020 00:33 ISTBy Murali Krishnan, Hindustan Times New DelhiAn attack on the Supreme Court will hamper not just the confidence that the public has in the Supreme Court but will also shake the confidence that judges of other courts in the country have in the Supreme Court. (Hindustan Times)Advocate Prashant Bhushan’s tweets of June 27 and June 29 , one criticising Chief Justice of India (CJI) SA Bobde and the other raising questions about the conduct of former CJIs and the court are based on distorted facts and have the effect of destabilizing the foundation of the Indian judiciary, the top court ruled on Friday, holding the activist lawyer guilty of criminal contempt of court in a decision that provoked extreme reactions.In a strongly worded judgment, a three-judge bench headed by justice Arun Mishra said that the allegations levelled in the tweets against the court and CJI are malicious in nature and have the tendency to scandalize the court and such conduct is not expected from Bhushan, who is a lawyer of 30 years standing at the Bar.“The Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand,” the bench which also comprised justices BR Gavai and Krishna Murari said. The quantum of punishment — contempt could mean a fine and up to six months in prison — will be decided on August 20.While some supported the court’s actions, pointing out Bhushan’s own support for such actions in 2017 when the court took high court judge from Tamil Nadu, Justice CS Karnan, to task for making allegations against Supreme Court judges, others said the court was being a tad touchy in seeing comments against individual judges as those against the court.The view aired by Bhushan is not different from the views held by many people. That the court had to pick out two of Bhushan’s tweets and hold him guilty of criminal contempt smacks of insecurity from the realisation that the image of court in public eyes is very low. It seems like an attempt to scare people into respecting the court,” senior resident fellow at Vidhi Centre for Legal Policy, Alok Prasanna Kumar, who is also a member of Campaign for Judicial Accountability and Reforms, of which Bhushan is a convener, told HT.“There is a world of difference between an allegation that Supreme Court is a poor defender of democracy and a statement alleging corruption or collusion with other arms of state. The former is protected by freedom of speech under Article 19(1)(a) of the Constitution while the latter can be penalised by a law protected under Article 19(2) which provides for exceptions to free speech. The tweets in question fall under the latter category,” Supreme Court lawyer Kanu Agrawal said.Bhushan himself was unavailable for comment but in his defence to the court in his affidavit filed on August 2 had said that “I am entitled to form, hold, & express (opinion) under Article 19(1)(a)”.The court observed that Indian judiciary is considered by the citizens as the last resort when they fail to get justice elsewhere. An attack on the Supreme Court will hamper not just the confidence that the public has in the Supreme Court but will also shake the confidence that judges of other courts in the country have in the Supreme Court.Further, if a malicious attack against the highest court is not dealt with the requisite degree of firmness, “it may affect the national honour and prestige in the comity of nations”, the court added.Bhushan who is part of the institution of administration of justice should have protected the majesty of law; instead he indulged in an act which tends to bring to the institution of administration of justice, the court noted.India’s contempt of court law is derived from British law, but in 2013, the United Kingdom abolished ‘scandalizing judiciary’ as a form of contempt of court on the grounds that this went against the freedom of expression while retaining other forms of contempt like behaviour causing disruption or interference with court proceedings.The court had also initiated contempt proceedings against Twitter but the same was closed on Friday after the court was satisfied with the social media platform’s explanation that it is only an intermediary and had also suspended the controversial tweets immediately after the top court initiated the case.Bhushan posted two tweets, one against the Supreme Court on June 27 and another against CJI Bobde on June 29.Mehek Maheswhari, an advocate, filed a petition before the Supreme Court on July 9 seeking initiation of contempt of court proceedings against Bhushan for the tweets. As per law, a contempt petition filed by a private individual should have the consent of the Attorney General before it can be listed before the Supreme Court for hearing.Maheswari’s petition did not have such consent but the court decided to proceed suo motu (on its own) with the contempt case after the registry brought the petition to the notice of the court on the administrative side.The court listed the case for the first time on July 22 and issued notice to Bhushan the same day.Bhushan’s first tweet, reproduced in the court order, said: “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.”The second referred to the Bobde and was also cited in the order. It said: “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”Bhushan refused to apologise for his tweets, contending they are protected by the freedom of speech guaranteed under Article 19 of the Constitution. He cited the speeches on dissent made by Supreme Court judges DY Chandrachud on February 15 and Deepak Gupta on February 24 to buttress his case.In defence of his perception that the Supreme Court aided in destruction of democracy, Bhushan referred to the press conference held by four judges – justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph -- of the Supreme Court in January 2018 against the manner in which cases in Supreme Court were being assigned to selected benches.Regarding the tweet of June 27, the apex court held that tweet is directed against the Supreme Court and gave an impression that the apex court and its four CJIs had a major role in the destruction of democracy in the last six years.“There is no doubt that the tweet tends to shake the public confidence in the institution of judiciary. The tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI,” the court said.Regarding the June 29 tweet, the court said that it was intended to give an impression that the CJI kept the Supreme Court shut denying fundamental rights to citizens even though the court was functioning through video conferencing.However, this, the court, held was patently false because the court was functioning through video conferencing though physical functioning of the court was suspended due to Covid-19.“Immediately after suspension of physical hearing, the Court started functioning through video conferencing. The total number of sittings that the various benches had from March 23 till August 4 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution,” the judgment highlighted.Thus, the two tweets were not fair criticism of the functioning of the judiciary, or made in good faith or public interest, the court held.“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…. The tweets which are based on the distorted facts, in our considered view, amount to committing criminal contempt,” it ruled.Another suo motu contempt petition is pending before the same bench against Bhushan for calling past chief justices corrupt in a 2009 interview to Tehelka magazine.Bhushan, in that case, had offered an explanation for his statements but the Supreme Court refused to accept it and ruled, on August 10, that it will proceed with the case. That case is now listed for hearing on August 17.Minutes after he was held guilty of contempt of court on Friday, Bhushan along with senior counsel Dushyant Dave appeared before another bench headed by justice L Nageswara Rao in a public interest litigation seeking inquiry into the alleged non-transparent manner in which the central government handled the Covid crisis.That matter was adjourned for detailed hearing next week.

This seems like a good time to visit what the Foreign Intelligence Surveillance Act (FISA) is, what it does, and how it works relative to other warrants.The Foreign Intelligence Surveillance Act, or FISA Act, outlines U.S. procedure for physical and electronic surveillance of foreign powers and their agents suspected of espionage or terrorism. What Is the FISA Act and Section 702?Another good explanation:The Foreign Intelligence Surveillance Act, or FISA, signed into law in 1978, requires the government, when eavesdropping on communications on domestic soil for national security purposes, to obtain permission from a judge on the Foreign Intelligence Surveillance Court. The judge must agree that the target is probably an agent of a foreign power and will probably use the specific email accounts or phone numbers that the Justice Department wants to wiretap. How to Get a Wiretap to Spy on Americans, and Why That Matters NowThe judges are appointed solely by the Chief Justice of the US Supreme Court without any input from the President or the Senate.The Court sits in Washington D.C., and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis. About the Foreign Intelligence Surveillance CourtThe Foreign Intelligence Surveillance Court (FISC) is a secret court. The public is not permitted in the court, and its proceedings are not released to the public.This is pretty well known by now. So how does a FISA warrant differ from other search warrants or surveillance warrants? First, the FISC is a secret court, unlike any other Court. Other (non-FISC) courts regularly hear applications for wiretaps, communications data warrants, and GPS monitoring. Of course, All warrant applications are on an ex parte basis, meaning only the State is present. These applications are not open to the public.It’s not surprising that these are closed, ex parte applications. Their very purpose is to gather information without the target knowing about it. However, the affidavit upon which the application is based and a transcript of the discussion between the judge, the officers, and prosecutors is released.My experience in New Jersey is the vast majority of these applications are granted. In Utah, only 2% of warrant applications were denied. Tribune Editorial: Getting a warrant should be harder than it is FISA applications are almost always granted.A striking feature of proceedings at the Foreign Intelligence Surveillance Court (FISC) is that the executive always wins. Between 1979 and 2012—the first thirty-three years of the FISC’s existence—federal agencies submitted 33,900 ex parte requests to the court. The judges denied eleven and granted the rest: a 99.97% rate of approval. Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? | Stanford Law ReviewIn courts other than the FISC, the defendant can contest the validity of a warrant by moving to suppress the evidence gathered from the warrant. This is called a Franks hearing, after Franks v. Delaware, 438 U.S. 154 (U.S. 1978).To get a Franks hearing, the defendant must show:a) To mandate an evidentiary hearing, the challenger's attack must be more than conclusory, and must be supported by more than a mere desire to cross-examine. The allegation of deliberate falsehood or of reckless disregard must point out specifically with supporting reasons the portion of the warrant affidavit that is claimed to be false. It also must be accompanied by an offer of proof, including affidavits or sworn or otherwise reliable statements of witnesses, or a satisfactory explanation of their absence.(b) If these requirements as to allegations and offer of proof are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required, but if the remaining content is insufficient, the defendant is entitled under the Fourth and Fourteenth Amendments to a hearing. 438 U. S. 171-172.However, it is the rare defendant who will ever get a Franks hearing in the FISC. The defendant who moves for a Franks hearing will never get the affidavits and supporting documents used in the application. The FISC will review the application in camera on an ex parte basis. That means in the judge’s chambers without the defendant’s attorneys present. This is actually in the FISA statute at 50 U.S.C. § 1806(f).A trial court upheld the constitutionality of the FISA statute. “The Court is not persuaded by the one outlier district court case which held that FISA, as it currently exists, violates the Fourth Amendment.”On the Admissibility of FISA-Derived Evidence in Criminal Prosecutions and United States v. Kashmiri (N.D. Ill. Nov. 10, 2010) (denying motion to suppress FISA-derived evidence) - Journal of National Security Law & PolicyFISA applications are overwhelmingly granted, as are warrants in other courts. FISA applications are done ex parte, as are warrant applications in other courts. Where the FISC differs from every other court is in how it handles suppression motions. The FISC does not allow these motions to be litigated. The judge takes another look at the application with the prosecutor and makes a decision. The defendant cannot see the warrant application or argue.In my opinion, it’s a terrible law because the defendant cannot contest the validity of the warrant. The defendant has no recourse. However, the Congress just re-authorized FISA. They made it worse by broadening situations that don’t even require a warrant. Congress Renews Warrantless Surveillance—And Makes It Even WorseWhat is needed to get any warrant? What must be presented to the magistrate or judge? Much of the evidence by its nature is biased, such as information from anonymous informants or criminal informants.Reflecting this preference for the warrant process, the traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a “substantial basis for ... conclud[ing]” that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Illinois v. Gates, 462 U.S. 213 (1983).This is a fairly low bar. It has come about from the conservative Rehnquist Court decision. The FISA in its current form is a very draconian law. This is the law we have, because Congress voted for it. Now, all of a sudden in this particular case (and this case only) FISA is unfair, and the judges, prosecutors and FBI agents are an out of control cabal trying to harm President Trump.The FISA statute is deeply flawed as designed. However, there is no FISA abuse revealed in the Nunes memo. We know that the dossier was identified as being from a politically interested party. Nothing more than that was required to be told to the judge. We don’t know if the judge inquired further. We know that there was substantial evidence of Carter Page’s involvement with Russian officials and spies aside from the dossier. This constituted probable cause that there was a “substantial basis for concluding that a search warrant would uncover evidence of wrongdoing.”Evidence of Carter Page’s activities, derived from various sources including the dossier, would have been allowed to be considered in any court, not just the FISC. The problem is with the FISA statute, not how the evidence in this case was handled. Nunes tried to put lipstick on a pig, and he failed.I think the FISA Act is a travesty. However, Trump’s advocates believe it is only flawed in this case.