Authored by Ananya Garg, a 2nd year student of Chanakya National Law University, Patna.
A number of legislations followed by India are a legacy of the British colonial era. The law of criminal contempt is one such law whose validity and efficacy India has ignored to evaluated against the principles of free speech and expression in the current times.
The Supreme Court of India, on August 14, 2020, charged Advocate Prashant Bhushan guilty of criminal contempt of court over two tweets posted by him in June 2020. The first tweet was a comment on the viral picture of Chief Justice S A Bobde astride an expensive motorcycle, it said that the Chief Justice was riding a motorcycle without any helmet or mask while keeping the Supreme Court in lockdown and thereby denying justice to the populace. The second tweet stated that, looking back, the historians would see how the democracy was destroyed in India in the past six years, and the role that the Supreme Court and it’s last four CJIs played would be particularly marked.
In the judgment delivered by the Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari, the Bench found Bhushan’s tweets scandalising the court and lowering its authority. The judgment stated that an act which might have the tendency to adversely affect public confidence in the fairness and impartiality in the administration of justice cannot be permitted, and when the criticism is based on obvious distortion and gross misstatement to specifically lower the respect and confidence in judiciary, proper action must be taken.
The Bench deemed the first tweet factually incorrect because virtual hearings were being conducted and a number of matters had been heard and writ petitions dealt with, even though physical court hearings were suspended owing to the pandemic. The tweet was seen as scandalous and malicious as it gave the impression that the Chief Justice had kept the citizens from their fundamental right to access justice. As for the second tweet made by Bhushan, the Bench found it to be a scurrilous and malignant allegation which lowered the court’s authority by stating that the Supreme Court and its past four Chief justices had particular roles in the destruction of democracy in India in the past six years.
Bhushan defended his position by submitting that his first tweet was an expression of his anguish, at the unsatisfactory proceedings of the virtual court. He contended that he was clearly within his rights to express his opinions under the right to freedom of speech and expression as provided by Article 19(1)(a) of the Indian Constitution. With regard to the second tweet, it was submitted that the respective tweet was an expression of a bona fide opinion of the contemnor regarding the state of affairs in the country for the past six years. It was emphasised that every citizen has the right to examine and question the functioning of an institution and build a public opinion. It was also submitted that the Supreme Court must not be equated with the Chief Justices and to do so would be lowering the court’s authority.
After the delivery of this judgment various members of the bar and judiciary, as well as common citizens expressed indignation because it is widely believed that the Court sought to make an example out of Prashant Bhushan to discourage future criticism and disrespect towards the institution or the members of the bar. The main objective of the contempt law, being protection of the function of administration of justice, was not seen as being served in this case. Rather, the Bench did not even address most parts of the affidavit submitted by Bhushan, defending the tweet as his bona fide opinion about the state of affairs in the country and judiciary.
Criminal Contempt law in India has been shrouded with a certain amount of ambiguity as it mostly depends upon judges’ discretion, that is, whether they deem the object in question as scandalising and lowering the court’s authority or not. The Supreme Court has delivered varying views on different occasions which has made it difficult to understand what could exactly be regarded as contempt. For instance, in 1972, E.M.S Namboodiripad, then Kerala’s Chief minister, was convicted for contempt for his statement that judges were biased against the exploited peasants and the working class. Whereas, in 1987, when P. Shiv Shankar alleged that the Supreme Court provided a haven to the anti-social elements and that the class composition of the judges served as a basis for their prejudice for the elitist class, the Court did not consider it as contempt, and observed that the times had changed since the EMS case. But the same court once again went against its own liberal view of what can be constituted as contempt, in the case of Arundhati Roy.
Most of this confusion can be attributed to the definition of criminal contempt provided in Section 2(c) of the Contempt of Courts Act, 1971, which is arbitrary in its wordings. The section states that anything which scandalises or tends to scandalise, lowers or tends to lower the court’s authority and interferes or tends to interfere with the administration of justice may be regarded as contempt. These words leave upon the judges’ discretion to decide what does or does not scandalize the court’s authority.
On 20th August, the Court held a hearing to decide upon the sentence for Adv. Prashant Bhushan, and it allowed Bhushan time to reconsider his statements and make an unconditional apology. However, Prashant Bhushan refused to apologise for something that he believes to be true, and the court reserved its order on quantum of sentence.
The Bench, comprising of Justices Arun Mishra, BR Gavai, and Krishna Murari, is strongly of the view that Adv. Bhushan has made scandalous statements with a calculated object of lowering the authority of the court in the eyes of public. But we have also seen that the Bench is willing to show leniency toward Adv. Bhushan by remitting his sentence in case he makes a sincere and unconditional apology for his statements. Section 12 of Contempt of Courts Act 1971 provides for this window of remission if an apology is made to the satisfaction of the court. This inclination of the court towards showing leniency to Bhushan may be caused by the strong opposition of the Supreme Court decision to convict Prashant Bhushan.
The division of opinion on this case is clearly evident in the various statements issued by two factions, one supporting the court’s decision and the other not. These statements are made by prominent members of the bar as well as retired judges. These is no perfect consensus among the experts regarding this case. The Attorney General KK Venugopal has also intervened in this case in his personal capacity. He had appealed to the Bench to take a compassionate view and to forgive Bhushan.
What has to be kept in mind is that the duty of the court is not to protect its dignity, but to protect the administration of justice. While it is of utmost importance to protect the process of administration of justice, it is also important to assure that the people’s right to freedom of speech and expression is not violated in the process. If public’s respect and trust in the higher-most institution of justice is shaken then that does threaten the fundamental right to justice, but the principles of a constitutional democracy must be maintained and respected all the time. Public scrutiny of functioning of any institution is always seen as a means of betterment of the said institution. It is a threat to the basic tenets of the democracy if the citizens are not allowed to voice their opinions in good faith. Thus, it can be concluded that it is fine line for the judges to walk as they are entrusted with upholding the right to justice as well as the right to freedom of speech. Both are fundamental rights of the people, and in case of a conflict, one must remember the very insightful words of Lord Denning “we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
Suo Motu Contempt Petition (Crl.) No.1 Of 2020, In Re Prashant Bhushan &Anr.
E. M. Sankaran Namboodiripad vs T. Narayanan Nambiar, 1970 AIR 2015.
P.N. Duda vs V. P. Shiv Shankar & Others, 1988 AIR 1208.
Arundhati Roy vs Unknown, AIR 2002.
Regina vs Police Commissioner, U.K. House of Lords, 2 W.L.R. 827, 38 LLM.581 (1999).