The Hon’ble Supreme Court on 14th August held Mr. Prashant Bhushan guilty of criminal contempt for making two tweets:
- 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 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!
The primary reasons to hold these tweets contemptuous was that they brought disrepute to the administration of justice and undermined the dignity of the Hon’ble Supreme Court of India and the office of CJI.
Contrary to its previous decisions on matters of contempt, this Supreme Court decision clamps down on freedom of speech and expression. Mr. Bhushan’s 134-page reply affidavit was given no weightage in evaluating whether these tweets amounted to fair criticism of the judiciary.
The Law of Contempt in India
If it is this easy to bring disrepute to the highest court and shake people’s confidence in the judiciary then maybe the court isn’t as invincible as it ought to be.
This appalling judgement restricting freedom of speech and expression nudges us to unravel the idea behind the law of contempt in India. This concept is heavily influenced by the law of contempt in England. In the 12th century England, the king was the supreme power in resolving disputes.[1] It was he, who established courts to resolve disputes which were endowed with the same authority. Questioning the authority of the king or the court and scandalizing it amounted to contempt.
Contempt of court in a modern democracy derives its authority from the rule of law.[2] One crucial aspect of the rule of law is the independence of the judiciary. For this independence, a court must have the power to vindicate its own dignity and enforce obedience to its mandates. Article 129 of the Constitution of India and The Contempt of Courts Act, 1971 aims to protect the supremacy of the judiciary and people’s faith in it. Ironically enough, the act of England that laid down the foundation of criminal contempt in India was abolished in 2013, owing to its obsolete nature. Why this Act continues to be in force and widely used in India is a lingering question.
India continues to criminalize scandalizing of the court as ‘criminal contempt’. There are no specified criteria of what amounts to ‘scandalizing authority of the court’. Absence of which allows the courts to have a free hand in interpreting the term subjectively (read arbitrary action). It was this freehand that gave the power to the court, to call its criticism – contempt.
All bonafide opinions about the judiciary are well protected under Article 19(1)(a) as fair criticism and cannot be held as contempt as long as they do not cause imminent danger to the administration of justice or bring the institution into disrepute.[3] Mr. Bhushan’s statements do neither. If it is this easy to bring disrepute to the highest court and shake people’s confidence in the judiciary then maybe the court isn’t as invincible as it ought to be.
Did the Supreme Court go wrong?
On July 22, the bench headed by Hon’ble Justice Arun Mishra issued contempt of court notice to Mr. Bhushan in a ‘suo moto’ case regarding two tweets mentioned before. In the same breath, the court found these tweets prima facie contemptuous.
In deciding whether both the tweets were ‘scandalous’, the considerations taken by the court were the surrounding circumstances, scandalous nature of the tweets, the stature of the contemnor, and the extent of the publication of the tweet.
Although, the primary considerations in determining whether an act is ‘scandalous’ ought to be, “Whether the reflection on the conduct or character of the judge is within the limits of fair and reasonable criticism, and whether it is a mere libel or defamation of the judge, or amounts to a contempt of court. lf it is a mere declamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt.”, as held in Brahama Prakash case[1].
Both the tweets, at best, can be contested to be a declamatory attack on the judge/s without interference with the due course of justice. For the same reasons of non-interference with the administration of justice, the Law Minister P.N Dua was held not guilty for criminal contempt.[2] While deciding the matter, the Supreme Court recognized the inability of the courts of law to deliver quick and substantial justice to the needy and urged that the judiciary searches for light inward. Departing from this magnanimity, the court turned a blind eye to the substance of the criticism which should have been at the center of this decision.
The tweets did not substantially interfere with the due court of justice, hence cannot be punished for contempt[3]. In 2000, it was held, “It is not enough that there should be some technical contempt of court but it must be shown that the act of contempt would otherwise substantially interfere with the due course of justice which has been equated with “due administration of justice”.[1]
The first tweet is limited to the action of the judges. Judge and justice cannot be understood interchangeably while determining contempt. The distinction made is,
“…the keyword is “justice”, not “judge”; the key-note thought is unobstructed public justice, not the self-defense of a judge; the corner-stone of the contempt law is the accommodation of two Constitutional values-the right of free speech and the right to independent justice. The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.” [2]
The Supreme Court’s disregard of the 134-page affidavit points to the court’s failure to evaluate the truth of the second tweet. The second tweet was explained in the same affidavit giving factual bloopers of the preceding 4 CJI’s. In the array of heavily critiqued judgments, this criticism is surely warranted for.
For all these reasons, the Hon’ble Supreme court did go wrong.
Is the identity of the contemnor inconsequential?
The court’s emphasis on Mr. Bhushan’s 30 years’ experience and knowledge in the field of law, to determine the contempt in his tweets is baseless. The focus on his identity for an opinion that is the common perception of a section of the society leads to the question, are all those who publicly share his opinion also going to be held guilty of contempt by the court?
This calls our attention to the observation of Retd. Hon’ble Justice Khehar while deciding the case of Justice C.S Karnan,
“The task at our hands is unpleasant. It concerns the actions of a Judge of a High Court. This should never happen. But then, in the process of administration of justice, the individual’s identity is clearly inconsequential. This Court is expected to record its conclusions, without fear or favor, affection, or ill-will.”[3]
The targeted prosecution of an eminent lawyer based on his identity is a direct attack on free speech with the intention to instill fear amongst lawyers scrutinizing the functioning of the judiciary.
References:
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Ronald Goldfarb, The History of the Contempt Power, 1961 WASH. U. L. Q. 1 (1961), Available at https://openscholarship.wustl.edu/law_lawreview/vol1961/iss1/6, pg 7-8.
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In Re Arundhati Roy, AIR 2002 SC 1375.
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P.N. Dua vs. P. Shiv Shanker and Ors., AIR 1988 SC 1208 – “29. Bearing in mind the trend in the law of contempt as noticed before, as well as some of the decisions noticed by Krishna Iyer, J. in S. Mulgaokar’s case (supra) the speech of the Minister read in its proper perspective, did not bring the administration of justice into disrepute or impair administration of justice. In some portions of the speech the language used could have been avoided by the Minister having the background of being a former Judge of the High Court. The Minister perhaps could have achieved his purpose by making his language mild but his facts deadly. With these observations, it must be held that there was no imminent danger of interference with the administration of justice, nor of bringing an institution into disrepute. In that view, it must be held that the Minister was not guilty of contempt of this Court.”
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Brahama Prakash Sharma v. U.P., 1953 SCR 1169.
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P.N. Dua vs. P. Shiv Shanker and Ors., AIR 1988 SC 1208
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Sec 13 (a) “No court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.
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Murray & Co. v. Ashok Kr. Newatia, AIR 2000 SC 833.
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Shri Baradakanta Mishra v. The Registrar of Orissa High Court & Anr., AIR 1974 SC 710.
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In Re: Hon’ble Justice C.S. Karnan, AIR 2017 SC 3191.
