Case Commentary: Prashant Bhushan, In re (Contempt Matter), (2021) 3 SCC 160

INTRODUCTION:

Contempt of court is defined as deliberate disobedience of any order, judgement, or verdict issued by the court, as well as making derogatory words about any court that may harm its reputation. The courts have been granted the authority to punish individuals for contempt of court in order to guarantee that the rulings, orders, decrees, and other measures they have issued are carried out correctly. The judiciary lacks an executive branch that would ensure parties take into account and abide by any legal rulings or decrees issued by the court. Thus, the courts are given this authority in order to instil a feeling of accountability among the populace. The provisions pertaining to contempt of court in are addressed under the Contempt of Courts Act 1971. The current case commentary is about Prashant Bhushan’s contempt case, in which the Supreme Court of India began suo moto contempt proceedings against Prashant Bhushan on the basis of two tweets he shared on the social media platform Twitter, for which he was found guilty.

FACTS OF THE CASE:

In June 2020, Prashant Bhushan made two significant tweet posts on the well-known social media platform “Twitter”. They were both concerning the judges of the Supreme Court. The following tweets were posted:

First Tweet (June 22, 2020): “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!”

Second Tweet (June 27, 2020): “When historians in 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.”

After discovering Advocate Prashant Bhushan’s tweets, Advocate Mahek Maheshwari filed a contempt suit at the Supreme Court. Prashant Bhushan was described as the Contemnor No. 1, and Twitter, the social media site, was described to as the Contemnor No. 2. The Supreme Court noted that the Attorney General of India had not previously sanctioned this contempt petition. As a result, the Supreme Court gave the advocate Prashant Bhushan’s tweets Suo motu cognizance. The case was heard by Honourable Justices Arun Mishra, B. R. Gavai, and Krishna Murari.

ISSUES:

  1. Whether such tweets by the respondent (Mr. Bhushan) constitute contempt of court or are genuine critique of the respondent’s fundamental right to freedom of speech and expression?
  2. Is Twitter Inc. a “intermediary” as defined under the Information Technology Act of 2000?

CONTENTIONS:

Contention of Petitioner:

The Attorney General of India presented a case in the legal procedures involving Prashant Bhushan and the Supreme Court of India, claiming that Prashant Bhushan’s tweets were scandalous and had the effect of undermining the judiciary’s authority. While the freedom of speech and expression is a basic right, the Supreme Court and the Attorney General stressed that it is not unconditional. They argued that appropriate limitations can be put in place to protect the judiciary’s honour and integrity.

In contrast to a punitive sentence, the Attorney General argued that a cautious approach would serve as a wider warning to members of the legal profession and the public at large, in addition to sending the essential message to the contemnor. The major takeaway would be to exercise prudence and responsibility when voicing ideas on judges or the legal system, emphasising the need to strike a careful balance between respect for the judiciary and freedom of speech.

Contention of Respondent:

Contemnor No. 1 (Prashant Bhushan):

In addition, the respondent claims in a tweet from July 29, 2020, that he was distressed by the court’s virtual operation in relation to COVID-19 on behalf of those who are suffering consequences and delays in receiving justice. Keeping these opinions in mind, the CJI, who has advocated for the non-physical operation of courts, is seen riding a motorbike without a mask, prompted him to voice his concerns about the inconsistency of the CJI’s actions.

Contention of Contemnor No. 2 (Twitter):

According to Twitter Inc., the respondent, being a global website, it qualifies as a “intermediary” for purposes of Section 2(w) of the Information Technology Act of 200. It further says that Twitter has no control over the tweet delivered because it is not the source of tweets and does not have editorial oversight. However, it has sincerely taken preventative action by blocking and disabling the aforementioned tweets.

RATIONALE:

The main issue that the Supreme Court had to decide was whether or not Prashant Bhushan’s published tweets qualified as “fair criticism” of the system under Article 19(1) of the Constitution as they were made in good faith and for the greater welfare of the public.

A basic right to freedom of expression is guaranteed by Article 19(1) of the Indian Constitution, however it is subject to reasonable limits as stipulated in Article 19(2). At the same time the Indian Constitution grants the High Courts and Supreme Court the inherent authority to engage in “judicial self-dealing” as a fundamental right, as stated in Article 215 and 129 which gives the Courts the authority to declare someone in contempt suo moto, when any statements are made that attempt to scandalise, lower, bias, meddle, or hinder the administration of justice.

The Court first started by putting forward a clear association between statements influencing judges’ strict performance of responsibilities and their potential to obstruct the administration of justice. By looking into earlier rulings, it found that accusations like the one in this case subtly diminished the dignity of the Court and essentially undermined public trust in the honesty of judges. By doing this, the Court unavoidably linked criticism of judges with criticism of the Court, dismissing Prashant Bhushan’s claim that remarks about judges’ personal behaviour had no negative impact on the administration of justice.

Nonetheless, the Court attempted to make a crucial distinction. It was recognised that, while vilifying a judge as a judge merits contempt, vilifying the judge as an individual does not; in such circumstances, the judges must resort to private remedies. In order to decide contempt cases, it basically relied on six factors that Justice V.R. Krishna Iyer presented in Re: S. Mulgaokar[1], the Court should: (i) exercise its contempt power sparingly; (ii) balance the need for a fearless trial process with the constitutional values of free criticism; (iii) keep the community’s confidence in preventing an impediment of justice separate from the judge’s personal protection; (iv) apply control in the exercise of authority; (v) avoid becoming overly sensitive even when criticisms go too far; and (vi) declare contempt when remarks are malicious, scurrilous, intimidatory, or offensive beyond reasonable bounds. The Court then examined the tweets in detail using Justice V.R. Iyer’s multiple test framework. The court broke the tweets down into different parts, noting that the first tweet’s initial sentence “CJI rides a 50-lakh motorbike belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet”—was a personal jab at the judge himself. But the second portion of the initial tweet, which said, “at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice,” was a “undisputed” criticism of CJI in his role as the head of the judiciary’s administrative branch.

The Court found significant problems in the first tweet’s factual correctness. During the time of the contested tweets, the Court continued carrying out proceedings using video conferencing capabilities even though it was not physically operational. In light of that, the Court stated that a “patently false” and “wild allegation” about the CJI has the potential to erode public trust in the judiciary as well as the legitimacy and administration of justice. Consequently, the Court dismissed Prashant Bhushan’s claim of legitimate criticism due to his distress about the courts’ physical malfunction.

The Court offered three insights in response to the second tweet. First, Prashant Bhushan directly criticised the institutions of the Supreme Court and CJI when he said that the Court had contributed significantly to the collapse of democracy and that the previous four CJIs had done the same. Second, the Court determined that Prashant Bhushan acted recklessly, making the tweets ineligible for good faith protection due to the tweet’s enormous reach and the contemnor’s (a lawyer himself) reputation. Third, it was not a legitimate critique of the judiciary’s operation conducted in the public interest, which disqualified it from receiving protection under Article 19(1)[2] freedom of expression rule.

The tweets, taken together, had the effect of discouraging an ordinary petitioner and risked loss of faith in the Supreme Court and CJI. The Court also felt that it may allow other judges to be the target of similar attacks if it did not defend itself against harmful innuendos like the one in this instance. Effectively, stopping harmful assaults had to be handled with a certain amount of severity since it was a matter of national dignity and pride in the community of countries. The Supreme Court convicted Prashant Bhushan guilty of contempt of court.

Following the Court’s August 14, 2020 adjudication in which Prashant Bhushan was found guilty of contempt, Prashant Bhushan petitioned the Court to have the proceedings thrown out on procedural grounds, arguing that he had not received a copy of the complaint that served as the basis for the suo motu notice. In addition, he challenged the decision on the grounds of vagueness (due to the Court’s inconsistent rulings on the matter), free speech, truth (as a defence), the principle of proportionality (which tips the scales in favour of rights over restrictions), and an attempt to force him to issue an apology (the Court had requested that Prashant Bhushan submit an unconditional apology by August 20, 2020, if he wanted to).

In the end, the Court ruled that expression must remain within the bounds of the constitution, even when it was not feasible to set limits on the words or thought processes that were going on in the mind of one individual. Judges cannot be overly sensitive, even when distortions and criticism go too far, while enjoying the right to free expression. Fair criticism of the system is undoubtedly acceptable. However, the same cannot be pushed to allow nasty and scandalous declarations. For the same reasons, the contemnor’s other grounds were likewise denied.

The contentions made by Twitter Inc. in its affidavit about its role as an intermediary were acknowledged by the court. It was absolved of all charges since it took measures to fix the error using whatever authority it had by banning and deactivating contentious tweets.

Prashant Bhushan was asked by the court to provide an apology for his actions. But he declined to comply. He was then found guilty of criminal contempt of court by the court. He was given a fine of one rupee and warned that he would spend three months in jail if he did not deposit the money. He would also be prohibited from practicing in the court for the following three years. Prashant Bhushan opted for choice number one and paid the fine in full before it was due. Prashant Bhushan declared that he still thought the tweets were written with good intentions and that there was nothing wrong with that, thus he would be submitting a review petition in the future to have the judgement in his case reviewed.

DEFECTS OF LAW:

In the current case, the court passed the judgement without acknowledging the affidavit given by Prashant Bhushan stating his clarifications. Additionally, the case has left certain unanswered questions. The question on whether this case would stand as a precedent and whether in an effort to maintain its reputation and dignity, SC will monitor every social media account, remains unknown. Additionally, in high-profile cases like Prashant Bhushan’s, the imposition of a small fine, like Rs 1, raises important concerns regarding the perceived seriousness of the sentence and whether it serves as a deterrence. Public opinion becomes crucial because a sentence perceived as being too light might be construed as a failure to hold people accountable for their conduct, especially those in positions of prominence. The public’s confidence in the court is at stake due to this appearance of leniency, which calls into question the core values of justice and equality before the law. Furthermore, as it could not have a significant enough effect to discourage similar behaviour, the usefulness of a nominal punishment as a deterrent is questioned. In the decision the court heavily criticised the behaviour of Prashant Bhushan and insisted on having a deterrent effect, however, during the sentencing the court took a completely contrasting approach.

Also, the contempt of court act uses very vague and unclear terms, which causes a conflict with fundamental right of freedom of speech and expression. There is a need for clarity in what would constitute contempt to ensure the fundamental rights are not violated.

INFERENCE:

The Supreme Court of India issued a judgement ruling Prashant Bhushan guilty of contempt of court at the conclusion of the case. The court concluded that Bhushan’s criticism of the judiciary in his tweets went beyond what could be considered appropriate criticism and instead constituted an assault on the institution. The ruling reinforced the restrictions on free expression, particularly in light of the accusations levelled against the legal system. It emphasised the judiciary’s dedication to upholding its legitimacy and integrity while walking a narrow path between helpful criticism and acts that might be seen as an assault on the establishment.

The case brought up the more fundamental topic of judicial accountability. While Bhushan’s criticism sparked debate, it also addressed important issues about the judiciary’s openness and accountability. Strong channels for resolving complaints or issues with the judiciary’s operation, according to some, may be beneficial to a stronger democratic system.

Significant debates and questions about the limits of free speech were brought up by the case, especially when it came to criticising judicial and other establishments. The conviction of Prashant Bhushan sparked debate about whether individuals, particularly those in the legal profession, should be cautious in voicing dissident views about the court.

The case generated a range of reactions and attention among the legal community. Numerous advocates, academics, and attorneys voiced their opinions; some ardently upheld Bhushan’s freedom to criticise, while others stressed the significance of preserving the judiciary’s reputation. This internal discussion brought to light the difficulties in striking a balance between the necessity to protect the integrity of judicial institutions and the right to freedom of expression.

Furthermore, the case sparked conversations on the necessity for changes to the legislation pertaining to contempt of court. The argument put out by those who supported reform was that the current laws were too vague and needed to be clarified in order to avoid silencing reasonable criticism. Re-evaluating the judicial system became a hot topic of conversation as there was a general need for a deeper approach to contempt proceedings. This demand for change was a reflection of a larger public desire to make sure that legislative frameworks properly balance upholding people’s right to free speech with preserving the legitimacy of institutions.

Essentially, the Prashant Bhushan case provoked a complex conversation that went beyond the legal sphere and led to considerations of free expression, legislative changes, and the difficult balance that must be struck between democratic values and institutional dignity in the Indian context. The case’s aftermath is still being felt, influencing current discussions in India over the judiciary’s role and public discourse.

Radhika Korgaonkar

Symbiosis Law School, Hyderabad.


[1] Re: S. Mulgaokar, (1978) 3 SCC 339.

[2] INDIA CONST. art. 19, § 1.