On 14 August, 2020 i.e. a day before India’s 74th Independence Day, the Hon’ble Supreme Court of India convicted advocate Prashant Bhushan for the offence of Contempt of Court. Mr. Bhushan was found guilty for two of his tweets wherein he had made remarks on the incumbent Chief Justice of India (“CJI”), Justice S.A. Bobde and the last four Chief Justices.
The verdict received polarizing responses, much like Mr. Bhushan’s reputation and stature. While some lauded the judgment for finally punishing Mr. Bhushan for his constant attack and criticism of the judiciary, whereas the others criticised it for stifling dissent and ignoring the contribution of Mr. Bhushan to the legal profession and the society. Post the judgment, the Court gave Mr. Bhushan an opportunity to rethink his remarks, which he respectfully denied. The Court is now due to sentence Mr. Bhushan i.e. award the punishment.
The judgment has again brought to focus, India’s problematic contempt law which is highly discretionary and often casts a chilling effect on the right to free speech. In this post, I shall elaborate on these concerns, in light of the Court’s judgment.
Recap of the Episode-
- Mr. Bhushan and the Tweets:
Before discussing the substantives, a brief recap of the entire episode would be helpful. Mr. Prashant Bhushan is an advocate who has been practising primarily before the Supreme Court and the High Court of Delhi, for over 30 years. He has been instrumental in bringing to the Court’s attention significant public issues and grievances, through Public Interest Litigation Petitions, filed and/or argued by him.
In the past, Mr. Bhushan has also made some controversial remarks against the Supreme Court and/or its Judges. For instance, in an interview given to Tehalka magazine in the year 2009, he had remarked that half of the last sixteen/seventeen Chief Justices were corrupt. His outspoken nature and vitriolic criticism of the Courts, has made him a polarizing figure. While some see him as a crusader for public good, the others see him as troublemaker, who launches baseless attacks on the judiciary. For instance, eminent senior counsel Shri Soli Sorabji had reportedly remarked, ‘that both Prashant and Shanti Bhushan (his father) will not say that a judgment is erroneous. Their instant deduction is that the Judge was dishonest.’
Earlier this year, Mr. Bhushan wrote the following tweets:
“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”
“When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
These tweets were not received well by one Mahek Maheshwari, who filed a petition before the Hon’ble Supreme Court praying that the Court should initiate contempt proceedings against Mr. Bhushan. On perusing the tweets, the Court took suo moto cognizance of the matter i.e. on its own motion. A notice was issued to Mr. Bhushan and he was asked to explain why he should not be punished for the offence of criminal contempt of court. The punishment for the offence is imprisonment of six months or fine or both.
- Law on Criminal Contempt:
According to the Contempt of Courts Act, 1971 (“Act”), criminal contempt is the publication, which may be in the form of words (spoken or written), signs or any visible representation which:
- scandalizes or tends to scandalise, or lowers or tends to lower the authority of, any court; or
- prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
- interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
One should note however, that fair criticism of a judgment/order (§ 5) , fair reporting (§4) and even an act of defaming a Judge in his personal capacity (i.e. not in relation to his office) are not acts of contempt. [Read more on Law of Contempt]
The test of contempt can be best understood from the decision in PN Duda v. P. Shivshankar, AIR 1998 SC 1208, wherein the Court observed,
“Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of judges and brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised; the motives of the judges need not be attributed; it brings the administration of justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas criticisms about the judicial system or judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.”
The Court concluded that the tweets in question were against the Supreme Court as an institution and not an individual Judge, therefore the law on criminal contempt was applicable in the matter. It also held, that the tweets did not amount to a bona fide criticism and instead scandalized the Court and/or lowered its authority. (Read more)
At the outset, I wish to state that there is no legal infirmity with the judgment. In other words, the judgment conforms to the precedents on the issue and is valid. However, there are other problems with it.
First, the judgment inadvertently brings to focus the inconsistent approach of the Courts in deciding contempt cases. For instance, in PN Duda’s case, the Court showed mercy on a speech which had accused its Judges of comprising of an elite class that had an unconcealed sympathy for the haves. It held that although the speech made serious allegations against the Court, the offence of contempt was not made out.
On the other hand, in Hira Lal Dixit & Ors., (1955) 1 SCR 677, the Court reprimanded the author of a leaflet, that insinuated that Judges who decide in favour of the government are rewarded by government appointments. Here the offence of contempt was made out. Similarly, where a Chief Minister remarked that Judges are guided by class hatred, class interests and class prejudices, he was found guilty of contempt of court (E.M. Sankaran Namboodripad vs. T. Narayanan Nambiar, (1970) 2 SCC 325).
Legal Journals are replete with such contradictory decisions, which shows that there is no clarity or predictability when it comes to contempt cases. Therefore, the outcome of a contempt case, is largely dependent on the discretion and sensitivities of the Judge presiding over it. If a resilient Judge presides over the Bench, the outcome is a decision like PN Duda, whereas with a sensitive Judge the outcome is akin to Hira Lal and Sankaran.
Second, the present judgment adopts the strict approach as taken by the Court in Hira Lal and EM Sankaran’s case, respectively. Such an approach is bound to cast a chilling effect on free speech, as one would be scared to criticise the judiciary or put forth an unpopular opinion, as the fear of a conviction for contempt would be looming over her/him.
The Court in the present judgment has also reiterated that if an individual imputes partiality, corruption, bias or improper motives to a Judge, it would amount to contempt. This observation is particularly interesting, as it arguably renders all the publications discussing the Supreme Court during the tenure of Mrs. Gandhi as contemptuous. This includes the classic Working a Democratic Constitution by Granville Austin, the biographies of several Supreme Court Judges and other such books and articles, as they had attributed improper motives to several sitting Supreme Court Judges during the tenure of Mrs. Gandhi. (Maybe these publications would be spared, since the Court itself calls the Emergency Era as the blackest era of our democracy, in its judgment.)
Third, a major reason for Mr. Bhushan’s conviction is his stature and public presence. The Court in its judgement notes that the extent of publication is a key factor in deciding the question of good faith. It observes,
“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”
Therefore, it is likely that had Mr. Bhushan been an ordinary citizen, the Court would have shown him mercy.
Concluding Remarks: In my opinion, one should criticise the judgment for its conclusion rather than its reasoning. The Court here had the option of being resilient or sensitive, and unfortunately, it chose the latter. It is debatable whether Mr. Bhushan’s tweets were distasteful or not, however, the Court could have chosen to ignore them and showed the nation, that it comprises of men of fortitude who can thrive in a hardy climate.
The author does not wish to offend any member of the public and legal fraternity from this post. The facts/information mentioned therein has been reported in public forum.