Contempt of Court: Reviewing Prashant Bhushan’s Case

Profile of the Author- Shriya Ojha is a 2nd-year student of LLB at Faculty of Law, University of Delhi. She is deeply interested in constitutional and criminal law.

Introduction

In common parlance, contempt is defined as an act of disobedience or disrespect, towards a judicial or legislative body, or interference with its orderly functioning; for which a summary punishment is usually imposed. The Contempt of Courts Act 1971 divides contempt into civil and criminal contempt.  Civil contempt refers to the wilful disobedience of an order of any court.  Criminal contempt includes any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner. [1]  ‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary. The Indian Constitution under Article 19 [2] enshrines the Supreme Court with the power to punish for contempt of itself.

In light of the above definition, let us understand the judgement given by the three-judge bench of the Supreme Court in the matter RE: PRASHANT BHUSHAN & ANR.

Facts of the Case

The petition had been filed by Mr Mahek Maheshwari bringing to the courts’ notice a tweet made by Mr Bhushan to initiate a contempt proceeding (the matter when listed was titled as In Re: Prashant Bhushan Contempt case) for deliberately using scandalous speech against the court and the entire judicial system. The tweet in question was –

“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!”

Furthermore, another tweet dated June 27th, 2020 made by Mr Bhushan was brought into consideration-

“When historians in the 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.”

Mr Prashant Bhushan (Contemnor 1) and Twitter Inc. California, USA. (Contemnor 2) had been made parties to the petition. The court had taken suo moto cognizance of the matter and Mr Bhushan was represented by Shri Dushyant Dave and Twitter Inc. represented by Shri Sajan Poovayya, along with Mr Priyadarshi Banerjee and Mr Manu Kulkarni.

Issues of the case

1. Whether the impugned statements amount to criminal contempt of court?
2. Whether the following tweets can be protected in the garb of Article 19 (1) on account of fair criticism based on good faith for the public interest?

Contentions of Contemnor 1- The main the contentions of the counsel for Mr Bhushan were -

1. That, since the present proceedings are initiated on the basis of a petition filed by Mr Maheshwari, the same cannot be treated as a suo moto contempt petition. He also stated that unless there was the consent of the attorney general, no such proceedings can be initiated.
2. That, the tweets were a result of his anguish at the non-physical functioning of the courts and how that withheld the fundamental right of access to justice of the citizens. Via his tweet, Mr Bhushan aimed to highlight the incongruity of the situation wherein the CJI on one hand keeps the court virtually in lockdown due to COVID fears, with hardly any cases being heard and those heard, also by an unsatisfactory process through video conferencing and on the other hand is seen in a public place with several people around him without a mask.
3. That, the CJI is not the Supreme Court and vice versa. The impugned tweets were aimed at the CJI and a succession of judges, all individuals, and not the Supreme Court. Any bona fide critique of the CJI cannot amount to “scandalising the court” or “lowering the court’s authority”. Counsel referred to J. Krishna Iyer's judgement in Baradakanta Mishra v. The Registrar of Orissa High Court & another [3], submits, that when proceedings “in contempt are taken for vilification of the judge, the question which the court has to ask is whether the vilification is of the judge as a judge or it is the vilification of the judge as an individual.” The Counsel contends that allegations in the tweets are only against the present CJI and the past three CJIs and that too, in their individual capacity. In no way they can be said to be calculated to interfere with the due course of justice or the proper administration of the law by Court and therefore, it is not proper to continue with the present contempt proceedings. Reliance was made on Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh [4].
4. That, the second tweet should be viewed in three distinct parts and each of them amounted to an opinion. An opinion, however unpleasant cannot amount to contempt as free and fair discussion with respect to affairs of the states is the essence of democracy and should be protected under Article 19(1) [5].

Judgement and Reasoning

The three-judge bench of J. Arun Mishra, J. Krishna Murari, J and J. Gavai in a 108-page long judgement have rejected every contention one by one at length.

With respect to the primary contention, the bench stated that power of the Court to initiate contempt could not be limited by the provisions of Section 15 of Contempt of Courts Act, 1971 [6] as it only deals with the procedure of cognizance of the offence and it clearly provides that the HC or SC may take suo moto cognizance of the offence. It has been held that the Constitution under Article 129 is the source of the power to deal with contempt and the only requirement is due procedure has to be followed. [7] Moreover, it was held there is no requirement of approval from anyone including A.G. in issuing suo moto proceedings as the court is exercising its inherent power as a court of record.

The second contention was held dismissed on grounds of the statement being patently false. The court claimed that during the period when the contentious photograph of CJI on a bike was taken, the courts were on a summer vacation and the vacation benches were in function. Therefore, the claim of the tweet and the alleged anguish was held absolutely baseless. It was also mentioned that the alleged contemnor had himself appeared as a litigator on several occasions and as a petitioner for his own cause also.

With respect to the third contention, the bench also referred to J. Krishna’s opinion in another judgement Re: S. Mulgaokar [8], “the Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process…… if the Court considers the attack on the Judge or Judges to be scurrilous, offensive intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him, who challenges the supremacy of the rule of law by fouling its source and stream”

The bench also denied the protection of Article 19(1)(a) to the tweets on the basis of the fact that the said article is also subject to limitations and if these limits are crossed in a way that scandalises courts and lowers the authority of the court, the statement would come under the ambit of “criminal contempt”. The court held that scandalising - “scandalising might manifest itself in various ways but, in substance, it is an attack on individual Judges or the court as a whole with or without reference to particular cases casting unwarranted and defamatory aspersions upon the character or ability of the Judges.” It has also been held, that it is not necessary to prove affirmatively, that there has been an actual interference with the administration of justice by reason of such a statement and it is enough if it is likely, or tends in any way, to interfere with the proper administration of justice.

In the concluding remarks, the judgement discusses the importance of public confidence in the system and how it forms the foundation of the judiciary, therefore any attempt to shake the foundation that too on the basis of distorted facts, cannot be ignored. Mr Bhushan was held convicted for Criminal Contempt of Court.

Analysis

The present laws fail to give an explicit definition to “contempt of court” and this leaves a lot of room for subjectivity and discretion as what might be perceived as contempt by one might not be perceived as contempt by another. The above case is a bona fide exemplification of this issue as there has been astounding criticism of this judgement in the public domain. Justice V.R. Krishna Iyer termed the scope of power of contempt as having a “vague and wandering jurisdiction”, which may “unwittingly trample upon civil liberties”.[9] This ambiguity defeats the larger purpose of Rule of law which aims to distance us from arbitrariness. There is no reasonable test to determine what constitutes “scandalising” and what constitutes “interference in the delivery of justice”. The court, in this case, held that there is no necessity to establish that any interference in justice delivery system has actually been done, it is enough that the statement “tends to” or is “likely” to cause interference. Yet again, how does the court decide that a statement in the future is likely to interfere with the system? In the given matter, the picture of CJI on a bike went viral and was subject to a lot of public criticism on social media platforms. How are the rest of the criticism posts different from Mr Bhushan’s post that was singled out and held for contempt of court? The bench in its attempt to uphold the “dignity and majesty” of the court, has disregarded the fact that court is a public authority and therefore comes in the ambit of public scrutiny. An independent judiciary does not protect the judges from public scrutiny. Moreover, the offence of “scandalising courts” has long been scrapped in England and Whales, the place we adopted this law from. In a larger sense, is it to be understood that the judicial system is above and bigger than the people and their rights, for the protection of which the system exists in the first place?

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References

[1] Contempt of Court Act 1971, Section 2(c)

[2] Indian Constitution Article 129: The Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

[3] Baradakanta Mishra v. The Registrar of Orissa High Court & another (1974) 1 SCC 374

[4] Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh, 1953 SCR 1169

[5] Indian Constitution Article 19(1)(a). Protection of certain rights regarding freedom of speech etc. 1.All citizens shall have the right (a) to freedom of speech and expression

[6] Vijay Kurle & Ors 2020 SCC Online SC 407 (Suo Motu Contempt Petition (Criminal) No.2 of 2019

[7] P.N. Duda vs. P. Shiv Shanker & Others

[8] (1978) 3 SCC 339

[9] Editorial, “Against abuse of the Contempt power” The Hindu, July 24, 2010