Facts of the case
- “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, On June 27, 2020, lawyer Prashant Bhushan twitter, “They will specifically mark the role of the Supreme Court in this catastrophe & more notably the involvement of the previous 4 CJIs.
- He tweeted, “CJI rides a 50 lakh motorcycle owned by 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!” on June 29, 2020, after publishing a photo of Chief Justice S.A. Bobde drives a Harley Davidson.
- On July 21, 2020, advocate Mahek Maheshwari submitted a contempt petition to the Supreme Court accusing Prashant Bhushan, Contender No. 1 is accused of using his tweets as a “cheap publicity gimmick” to “spread hatred in the shape of an anti-India campaign,” while Contender No. 2 accuses Twitter of neglecting to take down the allegedly offensive tweets.
- The tweets sent by Adv. Suo Moto was taken under notice by the Supreme Court on July 22, 2020. Prashant Bhushan noticed that the complaint for contempt was submitted by Adv. Maheshwari did not have the Attorney General of India’s prior consent. After that, a bench composed of the honorable Justices Arun Mishra, B. R. Gavai, and Krishna Murari delivered a preliminary comment stating that the statements made on Twitter had harmed the reputation of the judicial system and may have jeopardized the Supreme Court’s standing and authority. The bench thus informed the contestants to submit their replies by August 5, 2020 and also informed the attorney general to assist the court.
Reply of contemnors Prashant Bhushan (Contemnor No.1)
Regarding his tweet on June 27, 2020, he claims it was sent out with the following bonafide intentions:
In India, democracy has been mostly undermined during the previous six years.
The Supreme Court’s failure to uphold the constitution following its responsibilities led to the demise of India’s democracy.
The last four CJIs in particular have hastened the death of democracy. Such candid expressing of opinion cannot be construed as contempt of court since everyone in a democracy has the freedom to debate the state of an institution in public and honestly. Furthermore, the idea that “The CJI is the SC, and the SC is the CJI” weakens the institution of the Supreme Court of India in and of itself. The CJI or even a line of four CJIs in succession cannot be compared to the Supreme Court.
Regarding his tweet from June 29, 2020, he claims that it was intended to express his distress over the Supreme Court’s non-physical operation for the previous more than three months, which prevented the Supreme Court from resolving serious and urgent grievances involving people in detention and other citizens’ fundamental rights. To highlight the contradiction between the CJI essentially placing the court under lockdown due to COVID-19 panic and the fact that, on the other hand, he was seen in a public environment with numerous people surrounding him without a mask, he also uploaded the photo of the CJI riding the bike. He concluded that his distressing disclosure of this incongruity did not amount to contempt of court. If so, it would be an arbitrary limitation that went against his fundamental right to freedom of expression.
Twitter Inc. (Contemnor No.2)
According to the affidavit-in-reply submitted by Contemnor No. 2,
- It is a global website that offers its users a microblogging platform for idea expression and interpersonal communication.
- It is just an “intermediary,” as that word is defined in section 2(w) of the Information Technology Act of 2000, and is not the creator or original poster of the relevant tweets.
- It only serves as a display board with no editorial oversight over the tweets.
- Following the court’s ruling from 22.07.2020, the disputed tweets have been deactivated in addition to being restricted from access.
Court’s Decision According to the court, Contemnor No. 1’s tweets are based on erroneous facts and constitute criminal contempt because of this. Regarding Contemnor No.2, we acknowledge that it only serves as a middleman and has no influence over the content that users publish. Additionally, it blocked and legitimately disabled the disputed tweets. As a result, we cancel the notice sent to alleged Contemnor No. 2 and declare alleged Contemnor No. 1 to have violated the court’s criminal contempt rules. Condemnor No. 1 was therefore given a fine of Re 1 (which must be delivered by September 15, 2020), after which he will serve three months in simple jail, as well as a three-year ban from practicing law in this court.
Under the Supreme Court’s directives, Adv. Prashant Bhushan submitted Rs. 1 in the Supreme Court Registry on September 14, 2020.
What is contempt of court?
The civil or criminal contempt that is punished under Section 12 of the same Act is defined as contempt of court in Section 2(a) of the Contempt of Court Act, 1971. Contempt of court, as a concept, seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who lower its authority. Making allegations against the judiciary or individual judges, attributing motives to judgments and judicial functioning, and any scurrilous attack on the conduct of judges are normally considered matters that scandalize the judiciary. The rationale for these provisions is that the court must be protected from tendentious attacks that lower its authority, defame its public image and make the public lose faith in its impartiality. However, it is commonly believed that the current law dealing with contempt of courts is unclear and unsatisfactory for the following reasons:
- It focuses on two crucial basic liberties guaranteed by the Indian Constitution, Articles 19 and 21, namely the freedom of speech and expression and the right to personal liberty.
- Even though both offenses share a similar character, the amount of punishment for contempt of court is significantly lower than the penalty for defamation (specified in section 500 of IPC 1860).
What is the statutory basis for contempt of court?
When the Constitution was adopted, contempt of court was made on the restrictions on freedom of speech and expression. Separately, Article 129[1] of the constitution conferred on the supreme court the power to punish contempt of itself. Article 215 conferred a corresponding power on the High courts. The Contempt of Court Act, 1971, gives statutory backing to the idea.
Contempt of Court against Prashant Bhushan
In response to a complaint made by Mahek Maheshwari, the Supreme Court took Suo moto cognizance of tweets made by activist and lawyer Prashant Bhushan on his Twitter account and found him in contempt of court for undermining the court’s authority through his tweets.
- Issues Raised
In this case, the major question was whether Contemnors violated the terms of section 2(c)(i) of the 1971 Contempt of Court Act by scandalizing or undermining the Supreme Court’s authority.
Arbitrariness in Supreme Court and High Court Contempt Powers – The Crime and Courts Act in England made Scandalizing the Court an offense that may result in jail time. The Law Commission’s suggestion led to its abolition in 2013, nonetheless. The Law Commission’s reason for abolishing the offense is that it violates the right to freedom of expression and shouldn’t be kept in place without compelling theoretical or practical arguments. Additionally, it was against the human rights premise.
The phrase “Scandalise,” which is used in section 2(c)(i) of the Contempt of Court Act in India, is likewise not defined, and the Supreme Court and High Courts have unrestricted contempt powers. This leads to arbitrary behavior and raises the likelihood that it will be misused. It is therefore past due for the Supreme Court to either eliminate this offense or define “scandalizing the court” and establish specific rules regarding its intent to stop judicial misuse of the word.
- Violation of Article 14: Under Section 19 of the 1971 Contempt of Court Act, the High Court’s rulings or decisions on its contempt may be appealed. Both intra-court appeal and inter-court appeal are covered under its provisions.
Intra-court appeal: If the High Court order was made by a single judge, there must be at least two other justices on the High Court bench to hear the appeal.
Inter-court appeal – If the order is issued by a High Court bench, the Supreme Court will hear the appeal. Procedural protection is not accessible to the accused contempt in the same way as it is to the alleged criminal, even though contempt proceedings are quasi-criminal in character and their trial is handled similarly to the trial for a criminal matter. It is simply unfair and discriminatory, and as a result, a violation of Article 14 of the Indian Constitution, since the person charged with criminal contempt of the Supreme Court has no right to appeal and no procedural protections are available to them during the trial as they are to an alleged criminal.
Freedom of Speech and Expression – Article 19(1)(a)[2], which grants citizens the right to freedom of speech and expression, is the supreme defender of all the principles upheld by the constitution, including the rule of law, the separation of powers, free and fair elections, and others. Contrarily, Article 19(2) of the constitution also lists eight justifications for limiting the right to free speech, among which is contempt of court. Since “reasonable limits” is the key phrase in Article 19(2), courts are only permitted to use their contempt powers to further the administration of justice and not to silence those who ask the court to account for mistakes or legal omissions.
Right to Appeal – Under Article 21 of the Indian Constitution, every person is guaranteed the substantive right to appeal, however in the current case, when the Supreme Court itself starts a contempt case against the contemnors, there is no way to challenge the court’s ruling. Even while such instances have a mechanism for review, the petition goes before the same bench, making the likelihood that it will be reviewed without bias lower.
The aggrieved party should be given at least one opportunity to appeal the conviction because the right to appeal is an absolute right under the terms of the International Covenant on Civil and Political Rights (ICCPR), a citizen’s fundamental right under Article 21, and the foundation of the principle of natural justice. Contemnor No. 1 filed a writ petition with the Supreme Court on September 12, 2020, asking for directions to declare that when the Supreme Court is hearing and ruling on a case in the first instance and is not serving in an appellate capacity, the person found guilty by the Supreme Court has a right to an intra-Court appeal that will be heard by a larger and different bench. Nemo potest esse simul actor et judex, which translates as “No one can be a suitor and a judge at the same moment,” was used by the speaker to bolster his argument. Under this, he indicated that an intra-court appeal against the orders and judgments of the High Court is required, as is allowed by section 19 of the Contempt of Court Act, 1971.
- Contention of plaintiff
The Supreme court said:The three judges bench said it could show leniency only if Bhushan expressed regret and reconsidered his statement declining to apologize. It gave Bhushan time to submit an unconditional apology failing which it would proceed against him.
- Contention of Defendant
Arguments by Prashant Bhushan:Bhushan submitted a supplementary statement before the court persisting with his stance and refusing to offer an apology. He submitted his views represented his bonafide (good faith) beliefs and, therefore offering an apology for expressing them would be insincere. He said, “ His tweets were not intended to malign the apex court or the CJI but only arrest any drift away from its longstanding role as a guardian of the constitution.
One of Bhushan’s main arguments was that criticizing the court is protected by free speech and will not amount to contempt.
- Defects of law
Supreme court verdict:
In the contempt of court case against Prashant Bhushan for his two tweets, the Supreme Court sentenced him to pay a fine of Rupees one, which is to be deposited with the supreme court registry within September 15.
In case of default to deposit, Prashant Bhushan will have to undergo imprisonment for three months and will be debarred from practice for three years.
Request by Attorney General Of India
Prashant Bhushan’s lawyer Rajeev Dhawan and Attorney General Of India KK. Venugopal, the top law officer of the Union Government who appeared in his capacity, urged the court to not punish the activist lawyer and let him off with a reprimand. Rajeev Dhawan said the effect of punishment will make Bhushan a martyr and urged the court not to do so.
Judges’ unclear position in the contempt of court case
The Indian legal system’s position on issues involving contempt of court is not entirely clear. On the one hand, certain comments are viewed as showing disdain, while on the other, comparable comments are ignored. Justice H.R. Khanna’s famous dissent in the ADM Jabalpur case (1976), which lost him his position as Chief Justice, according to retired Justice Beg, did not advance the law but rather increased his reputation. Justice Beg was not found to be in contempt of the Allahabad High Court for his statements[3]. Arundhati Roy, the winner of the Booker Prize, had previously attacked the Supreme Court for the way it had handled the evictees from the Narmada dam project. As a result, the top court used the contempt statute to punish her, and she was given a day in prison and fined.[4] Punjala Shiv Shankar[5], a former law minister of India, claimed that “antisocial groups, such as Federal Exchange Regulation Act (FERA) offenders, bride burners, and a whole horde of reactionaries, have found their nirvana in the Supreme Court.” The Supreme Court cleared him of the contempt charges, ruling that his remarks did not interfere with the administration of justice. However, the Supreme Court determined that the tweets hindered the administration of justice in the aforementioned Prashant Bhushan case and found him guilty.
The primary purpose of the contempt power in a democracy is to maintain the effectiveness of the court, not to uphold the honor of any one judge. The foundation of the system is the public’s trust and confidence in the judiciary’s ability to deliver brave and impartial justice. The Constitutional Bench of the Hon’ble Supreme Court also held that the “Law of contempt is not intended for the protection of judges who may be sensitive to the winds of popular opinion” in the case of contempt against former Madras High Judge C.S. KarnanJudges are believed to be hardy individuals who can endure challenging circumstances. The judiciary, one of the three pillars of government, is an essential institution that protects and advances the rights and interests of the general public. Contempt of court law is necessary for a democratic society to safeguard the legal profession’s interests and ethical standards. In other terms, the law protects the “Protector of all laws.” But there is an urgent need for clarification and revision of the laws regarding contempt of court. The democratic society that the writers of the Constitution intended will not be realized unless the Supreme Court interprets the clauses of that legislation in a way that is clear and follows international norms.
References
- Suo Motu Contempt Petition (Crl.) no. 1 of 2020 against Adv. Prashant Bhushan & Anr.
- Reply filed by Adv. Prashant Bhushan to the contempt notice issued by the Supreme Court of India.
Name- Snigdha Dhar
2nd year, batch (of 2020/26)
National Law University and Judicial Academy, Assam.
[1] INDIA CONST. art. 129.
[2] INDIA CONST. art. 19 (1)(a).
[3] Gautam Raman,Various Examples What is criticism and what is contempt?(August 18, 2020),
[4] In Re: Arundhati Roy v. Unknown, AIR 2002 SC 1375 (India)
[5] P.N. Duda v. V. P. Shiv Shankar & Others, AIR 1988 SC 1208 (India).