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THE SORRY SAGA OF CONTEMPT AND DISSENT: PRASHANT BHUSHAN CASE
This article has been authored by Shivam Kunal, a third year law student at Institute of Law, Nirma University, Ahmedabad.
Introduction
These days, the famous advocate Mr. Prashant Bhushan seems to somehow find his way to be the center of attraction in the legal fraternity. The seasoned lawyer was found guilty of contempt of court under the Contempt of Court Act 1971 by the apex court. He allegedly criticized the Chief Justice of India through an electronic medium, namely Twitter. In his tweet, he alleged that in one place, the CJI had kept the court closed amidst the pandemic, which kept the common people far-flung from justice, and on the other hand, he (CJI) is posing on a 50 Lakh Harley Davidson without a helmet and a mask. The advocate further went on to make another tweet, which said that the democracy had lost its flare, and the role of the last four Supreme Court Judges shall be instrumental in destroying the democracy. While Twitter India took down the tweets, the damage was already done. The court took Suo moto cognizance of the incident after advocate Mahek Maheshwari filed a petition in the apex court. In its one hundred- and eight-pages lengthy judgment, the court seems to have found a discreet demarcation between contempt and criticism. This article attempts to unravel the same through a smaller lens of analysis. Prashant Bhushan was summoned by the court along with Twitter India and both the contemnors presented their cases.
Background
Prashant Bhushan relied on fair criticism as an exception to the law, and he further relied on a distinction to be made between the CJI as a separate personality than the court itself. He contended-
“raising issues of concern regarding the manner in which a CJI conducts himself during court vacations, or raising issues of grave concern regarding the manner in which four CJIs have used, or failed to use, their powers as “Master of the Roster" to allow the spread of authoritarianism, majoritarianism, stifling of dissent, widespread political incarceration and so on, cannot and does not amount to "scandalising or lowering the authority of the court.”
Twitter India contended that it was merely an intermediary under the definition of the Information Technology Act, 2000 (IT Act) and thus, shall not be held liable for any act committed by a third-person. Section 79 of the IT Act, 2000, limits the intermediaries' liability. Twitter India was duly absolved of the allegation. Prashant Bhushan failed to convince the court, and he was charged with contempt. Article 129 of the constitution lays down that the Supreme Court is a court of record and can punish for its contempt. Further, Article 142 lays down the court's power to pass an order relevant to the cause of punishing the contemnor in such matters. These laws efficiently negate the claim of the contemnor that the involvement of the Attorney General of India is mandatory. The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 (for short 'the Rules') and the relevant portion of Rule 3 of the Rules lays down the manner of such power of the apex court, and it reads as follows: -
"3. In case of contempt other than the contempt referred to in rule 2, the Court may take action— (a) Suo motu, or
(b) on a petition made by Attorney General, or Solicitor- General, or
(c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney-General or the Solicitor-General."
Contempt or criticism?
Criminal contempt is defined under Section 2(c) of the Contempt of the Court Act, 1971 and it clearly lays out that any publication or act which tends to scandalize the judiciary or creates an obstruction in the deliverance of justice shall be inclusive under the said provision. Article 19 of the Constitution empowers the citizens to exercise freedom of speech and expression. Such right is not absolute in nature and is subjected to reasonable restrictions. The apex court in C.K Daphtary case held that the contempt of court is one of such restrictions. In the case of PN Dua v Shiv Shankar and others, the Supreme Court held that mere criticism of the Court does not amount to contempt of Court. Interestingly in an incident in 1987 in England, Lord Templeman refused to pursue contempt charges against Daily Mirror when the paper published an article referring to the judge titled “you old fool.” He was of the opinion that calling him old was truth and, whether he was a fool was a matter of public perception, though he believed that he was not a fool. Lord Atkin in Ambard vs. Attorney General of Trinidad and Tobago (1936), said that -
“the path of criticism is a public way: the wrong-headed are permitted to err therein; provided the members of the public abstain from imputing improper motives… Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
The first tweet clearly questions the physical closure of the court for more than three months. Chief Justice (CJ) was pictured on a motorcycle without his helmet and mask, he was surrounded by people. The vehicle was powered on as the headlight were functioning which can lead to interpretation that the CJ has ridden the bike. However, the fact that vehicle was on stand when he was pictured does exempt the CJ of his liabilities arising out of a negligent act (if any). Prashant Bhushan had apologized. for the same. The court in Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh laid that a fair criticism of the judge cannot be included within the definition of contempt. The court in Baradakanta case clearly pointed out the difference between the vilification of the court and the vilification of judge. In case of vilification of a judge, the remedies under contempt cannot be invoked. The essential difference between a fair criticism and contempt cannot be limited to a particular case law, it has to be an active exercise of the judicial cognitive capacity. The first tweet raises a pertinent question of conduct against the CJ and shall be deemed contempt owing to its truthful nature. As asserted by Justice Krishna Iyer in Re: S. Mulgaokar case,
“the court should be willing to ignore, by a majestic liberalism, trifling and venial offences. It is submitted, that the Court will not be prompted to act as a result of an easy irritability this Court had held, that to criticize the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy.”
The judiciary is not immune from fair criticism primarily because judges are human too, a fallible creature shall not be vested with absolute power left to their discretion to be exercised at their whim and will. In the second tweet, Prashant Bhushan has alleged that the democracy in the country is being destroyed. He further stated that the last four chief justices of the Supreme Court have played key role in such catastrophe. The statement is prima facie defamatory but, does law necessarily qualify the statements as criminal contempt? The most likewise incident was observed in the case of P.N. Duda vs. P. Shiv Shanker & Others, where the then Minister of Law, Justice and Company Affairs P. Shiv Shankar had made a speech making fierce allegations to the effect, that the-
Supreme Court was composed of elements from the elite class, that because they had their ‘unconcealed sympathy for the haves’ they interpreted the expression ‘compensation’ in the manner they did.
The court stating that the prima facie insulting statements were only opinions which could had been milder and that such criticism does not intervene with the administration of the court. Truth is an exception or defense to the charge of contempt as stated in Indirect Tax Practitioners Assn vs R.K. Jain. The defense of truth in the latter tweet can raise further controversies and shall not be extended to the contemnor. What needs to be assessed is whether the tweet by any means caused an hinderance in the administration of the court or did the court decided to protect its exhibitionism? Calling the judges a destroyer of democracy could had been justified if the court completely sets aside its emotion for the office bearers. A close behavioral study of the past chief justices may provide a passage of partial truth to the contemnor in this case. It shall be ideal for the court to treat every person equal before the law. The first tweet shall not be subject to contempt since, there persist a distinction between the CJI and the court as an independent body. Even if the tweet is termed contemptuous in nature, it can be remedied under different law available to the CJI. In the second tweet, it has to be left to the discretion of the judges to decide where a bonafide statement made in good faith could be termed as criticism or not.