Introduction:
Tussle in Apex court is of no new and recently activist lawyer Prashant Bhushan has been found guilty of contempt of court. Many of us were sceptical about the fact that how two tweets could be treated as disrespecting the Apex court, and this is totally against the freedom of speech and expression. How could the Judiciary put a restraint on someone who is just putting forth his opinion through social media? Does the judiciary have such authority? How Judiciary defines Contempt of Court? In this article, the author tries to explain the above-mentioned questions and reasoning behind the judgement.
What Happened?
As we all are living in the times of lockdown due to pandemic, and unable to meet people because of its consequences. People are expressing their views and opinion via social media as it is the only way where people can communicate with others. When Prashant Bhushan posted two tweets dated 27 and 29 June, he did not see it coming that this will shape into such courtroom drama.[1]
A petition was filed by Mahek Maheshwari for the second tweet which was tweeted on 29 June, where Prashant Bhushan tweeted about CJI riding bike without a mask in public while keeping the Supreme Court under lockdown, and denying justice to citizens and the petitioner prayed to initiate the contempt proceeding against Bhushan. As far as the other tweet is concerned which was tweeted on 27 June, where Bhushan tweeted about the role of the Supreme Court in the last 6 years and the particular role of last 4 CJIs in destroying democracy, was published in Times of India. The Supreme Court said that they are prima facie of the view that both the tweets have the tendency of disgracing the judicial system and capable of diminishing the dignity and authority of the Supreme Court, so they are taking suo moto cognizance of both tweets (one against which the petition was filed and the other which was published in Times of India).
Contentions of Prashant Bhushan in Affidavit
- In an affidavit filed by Prashant Bhushan, it was contended by him with respect to the second tweet that it was made to cite the unsuitable situation where the CJI, on one hand, keeps the court virtually in lockdown due to COVID fears, and very few numbers of cases being heard and those heard, also by an unsatisfactory process through video conferencing and on the other hand ride bike in public without wearing a mask. He further stated that if it is regarded as contempt then it will suppress freedom of speech and put unreasonable restrictions on Article 19(1)(a) of the constitution on fair criticism.
- As far as the first tweet is concerned which was published in Times of India, Bhushan said it is an expression of opinion, the statement is disagreeable or unpalatable to some, so it cannot constitute contempt of court. His statement has three elements, each of which according to him is his bonafide opinion about the state of affairs. It was further submitted that CJI is not Supreme Court, so to criticize the action of CJI cannot scandalize the court nor does it lower the authority of the Court.
Question that Arises from the Arguments
Dushyant Dave was representing Prashant Bhushan and after examining his arguments the questions that are needed to be answered by the court precisely are –
1. What is the power of the Supreme Court to punish a person for contempt of court with respect to Article 142 and Article 129?
2. How could the court take the present case as suo moto since the petition was filed by Mr Mahek Maheshwari and there is no consent by the Attorney General, could the proceeding still be initiated on the basis of complaint?
3. How could two tweets amount to contempt of court and what is the bar on criticism in the view of Article 19(1)(a) of the Indian Constitution?
Reasoning of the Court
- Court took suo moto cognizance of the instant case. Court after relying on various judgements said that before moving further they need to understand the power of the Supreme Court. Article 129 of the Constitution says that the Supreme Court is the court of record and has all the power including punishing someone for contempt of court and this is its constitutional power which could not be taken away by statute.
- Article 142 of the Constitution states that the Supreme Court may pass any order which is necessary to do complete justice and is subject to provision of law. Comparing both Articles, the court said that Article 142 is subject to the provision of law made by Parliament where Article 129 is concerned, there is no restriction on the Supreme Court. Considering the role of the Contempt of Courts Act 1971, the court emphasised that it acts as a guide for the Supreme Court and the 1971 Act does not deal with the contempt jurisdiction of the Supreme Court and when the court has taken the present case as suo moto there is no need to take consent of anybody including the Attorney General because it is exercising its inherent power to issue a notice.
- Defining the role of Article 19(1)(a), the court said that when criticism creates uneasiness in the people’s mind regarding ability and fairness of the judges, it amounts to contempt, not fair criticism and not protected under Article 19(1)(a). Relying on the judgements court said that the judiciary is not free from criticism but that should be fair in nature and would not lower the reputation of the judiciary and destroy the public confidence by distorting the statements, and with reference to Article 129, the Supreme Court has all the power to punish such a person.
- Court then scrutinizes the two tweets one by one. Firstly they examine the second tweet and said that the first part of the tweet which is “CJI rides a 50 lakh…,” is a criticism against the CJI individually not against the CJI as CJI, and the second part which is “at a time when he keeps the SC…..”, criticizes the CJI in his capacity as Chief Justice of India. The court was of the view that the said tweet was capable of giving a negative impression of the Judiciary to the public that CJI himself kept the court under lockdown and denying citizens their right to access justice. Regarding the said tweet Court further said that on the account of COVID-19 physical functioning was suspended. The court is performing their duties through video-conferencing, from 23.3.2020 till 04.08.2020 the court had 879 sittings and heard 12748 matters, so it would not be justified that the court denied the citizens right to access justice.
- As far as the other tweet is concerned the court said that there is a denial of the fact that the said tweet is directly against the Supreme Court as an Institution. Analyzing the tweet, the court said that the tweet conveyed that those judges who presided in the Supreme Court in the last six years have a specific role in the destructing the democracy of India and the last four CJIs had a key role. Tweets reach millions of people and conveying such an opinion would tend to lower the reputation and faith of the judiciary in the eyes of citizens.
Clarifying the position of judges, the court emphasised that judges are the silent sufferers of allegations made against them in the newspaper and media, and they cannot counter such allegations through newspaper or media. It becomes difficult for them to work without any fear. It was not expected from a person(Prashant Bhushan) who has 30 years of standing.
Conclusion
After analyzing the whole judgment, key things which are subject to criticism are that the provoked Supreme Court took the case as suo moto and within three weeks it found Prashant Bhushan guilty. The court used the term ‘inherent’ power in finding someone guilty of contempt but it is not ‘absolute’ power, it totally overlooks the main question and takes the blinkered view without following the statutory procedure in the proceeding. Terms like ‘shaking the foundation’ or ‘destabilizing’ are sizable terms to be used and taking the view that what people would think of judiciary is not something liberal in approach because we earlier witnessed the application of judicial activism which encroached rights of citizens. Prashant Bhushan was fined with 1 rupee, and he also indicated that he will file a review petition against the order.
References:
[1] Vakasha Sachdev, Bhushan’s Tweets Prime Facie Undermine Court, Office of CJI:SC, THEQUINT (July 22, 2020), https://www.thequint.com/news/law/supreme-court-contempt-notice-prashant-bhushan-twitter-27-29-june-cji-bike-4-cjis-tweets
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