Introduction:
The Supreme Court held senior activist-lawyer Prashant Bhushan guilty of contempt of court in a suo moto contempt case against him over his tweets about the Chief Justice of India, SA Bobde, and the apex court. The Court on August 31, 2020, ordered Bhushan to pay a fine of Re 1 by September 15, 2020. If he fails to pay the penalty, he would be jailed for three months and will be debarred from practice as an advocate for three years. In India, the Contempt of Court Act, 1971, divides contempt into civil contempt and criminal contempt.
‘Civil contempt’ means deliberate disobedience to any judgment, order, direction, injunction, writing, or other processes of the court or a deliberate violation of an undertaking by the court. ‘Criminal contempt’ refers to the publication of any subject matter (words, spoken or written, or signs, or visible representation, or otherwise) or any other act which defames the power of any court, or prejudices or interferes with the proper course of any judicial action or interferes with the administration of justice in any other way.
The Courts Defamation Act, 1971, however, makes it very clear that it is not contempt to justifiably criticize the decision of any trial.
Facts
Two recent tweets, dated June 27th and 29th 2020, by Prashant Bhushan, a senior Supreme Court advocate – widely acknowledged as a crusader for justice and fairness in public life, raised a veritable storm.
June 27: First Tweet
The first of the two tweets criticized the functioning of the SC in the past six years. The tweet alleged that historians would mark the role of the apex court in contributing to what Bhushan considered as the destruction of democracy.
June 29: Second tweet
“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 had alleged in his second tweet that had accompanied a picture of CJI Bobde, sitting on a stationary Harley Davidson motorcycle.[1]
July 9: Petition against Bhushan
Mehek Maheshwari, an advocate, filed a petition before the SC seeking initiation of criminal contempt proceedings against Bhushan for his tweets. As per Section 15 of the Contempt of Courts Act and Rule 3 of Rules to Regulate Proceedings for Contempt of SC, the consent of the Attorney- General (A-G) or the Solicitor-General (S-G) is required before the apex court can hear a criminal contempt petition filed by an individual. Maheswari’s petition did not have such consent, but the court still decided to proceed suo motu based on Maheshwari’s petition.
Issue
Whether Prashant Bhushan, 63, is guilty of criminal contempt for attempting “to scandalize the entire institution” with Twitter posts depicting the CJI on a two-wheeler while the court’s work was restricted due to the COVID-19 pandemic, and criticizing previous top judges.
Holding
Supreme Court held the alleged contemnor, Mr. Prashant Bhushan, guilty of having committed criminal contempt of the Court. It sentenced the contemnor with a fine or Re.1/ (Rupee one) to be kept with the Registry of the Court by 15th September 2020, failing which the Court ordered for a three-month imprisonment term and three years’ debarment from legal practice.
Rationale
Justice Krishna Iyer observed, in Re: S. Mulgaokar, the Court will act with seriousness and severity where justice is jeopardized by a gross and/or groundless attack on the judges and where the attack is intended to obstruct the judicial process.
The said tweet is capable of giving an impression to a common man, that the CJI is enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice. As observed in Maneka Gandhi v. Union of India and Another, (1978) 1 SCC 248, democracy is formed on free debate and open discussion, however, that cannot go to the extent of the scurrilous attack and disturbing the faith of the general public in the institution.
The court reasoned that despite the fact that there is a Freedom of Speech, the opportunity is rarely supreme since the makers of the Constitution have forced certain limitations upon it. Especially when such Freedom of Speech is abused and impact by embarrassing the institution and the people who are important for the said institution can’t protect themselves publicly, the equivalent can’t be allowed in law.
Though a fair criticism of judgment is admissible in law, an individual can’t surpass the directly under Article 19(1)(a) of the Constitution to scandalize the institution. If a citizen makes a statement that tends to undermine the dignity and authority of the Court, the same would come in the ambit of ‘criminal contempt’. When such a statement tends to shake the public confidence in the judicial institutions, the same would also come within the ambit of ‘criminal contempt.’ The criticism was not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The Court showed magnanimity and instead of imposing any severe punishment, it sentenced the contemnor with a nominal fine of Re.1/ (Rupee one).
Dicta
The Bench expressed distress that judges are not in a situation to react to claims made against them in light of a legitimate concern for judicial discipline and respectability. Adding that when ‘scathing attacks’ are made on judges, it gets hard for them to work valiantly.
Party’s Arguments
Dr. Rajeev Dhavan and Shri Dushyant Dave appearing for the contemnor Shri Prashant Bhushan raised the following arguments:
- The offense of scandalizing the Court hasn’t been defined by the Statute, it is notoriously vague and is often called “vague and wandering” jurisdiction. Reliance has been placed on Shreya Singhal v. Union of India, 2015 (5) SCC 1. In a few of the nations, the contempt law having been declared as an archaic law has already been done away with. There cannot be any compromise with the Right to Free Speech and Opinions.
- The tweets are expressions of opinion by Shri Prashant Bhushan. It was brought to notice that this opinion had been shared by many others including the retired judges of this Court. Such an expression of opinion, however outspoken, disagreeable unpalatable to few, cannot constitute contempt of court. It is his contention, that it is the essence of democracy that all institutions, including the judiciary, serve the citizens of this country and they have the right to freely and fairly discuss the state of affairs of an institution and develop public opinion so as to improve the institution. Relying on the observations made by Justice Krishna Iyer in Re: S. Mulgaokar, it was submitted that the court should be willing to ignore, by majestic liberalism, trifling and venial offenses.
- It further contended that the Court cannot be equated with a Chief Justice and raising concerns regarding the manner in which a CJI conducts himself during court vacations cannot ‘lower the authority’ of the Court.
The court emphasized that the right under Article 19(1) is subject to restriction under clause (2) of Article 19. If a citizen while exercising his right under Article 19(1) exceeds the limits and makes a statement, which tends to scandalize the judges and institution of administration of justice, such an action would fall within the ambit of contempt of court. When the statement is made against a judge as a judge, having an adverse effect on the management of justice, the Court would certainly be entitled to invoke the contempt jurisdiction.
Conclusion
The core question emanating from this case is, whether Satyameva Jayate is really possible within the confines of the present legal system. The court must acknowledge that its prestige as the custodian of constitutional values and individual rights is best protected not by rushing to use its punitive powers against those who would criticize it, but by living up to its most capacious institutional self by showing its ability to self-correct.
Reference:
[1] freespeechcollective. (2020, August 14). When ‘national honour’ was jeopardized by two 140 character Tweets! Free Speech Collective. https://freespeechcollective.in/2020/08/14/when-national-honour-was-jeopardised-by-two-140-character-tweets/?fbclid=IwAR3m4QI4qxU0K_aHuxFfrzHLBTb-URQdu51VmrqQ7hPi3oAaOCMV2kSZ0Gk
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