The Supreme Court initiated suo moto proceedings against lawyer and activist Prashant Bhushan for contempt of Court on 27th July 2020. This comes concerning two tweets by Bhushan on 27th and 29th June 2020. In the first tweet, he mentions that the future historians will mark the role of the Supreme Court and more particularly the last four CJIs in the “destruction of democracy in India,” and in the following tweet, he shared a picture of CJI Bobde astride a Harley Davidson superbike and commented that he was sitting on the bike without a helmet or mask at a time when Supreme Court is in “lockdown” and “denying citizens their fundamental rights to access justice.”
The bench comprising of Justices Arun Mishra, BR Gavai, and Krishna Murari delivered its judgment on 14th August 2020, holding Adv. Prashant Bhushan was guilty of criminal contempt of Court. The liability will be decided by the Court in the next hearing on 20th August 2020.
Law of Contempt of Courts in India
The main aim of establishing the Law of contempt is the efficient functioning of the Courts and to prevent any hindrance or interference with the administration of justice.
In India, the law relating to contempt of court can be described in the following three points:
- It can be a reasonable restriction to the freedom of speech and expression, according to Article 19(2) of the Constitution of India.
- The Contempt of Courts Act, 1976 governs the Law of contempt in our country. According to Section 2(a) of the Act, contempt can be civil or criminal. Civil contempt means wilful disobedience to any judgment, decree, direction, order, etc. Whereas Criminal contempt means the publication by words, spoken or written, or by signs, or by visible representation, or otherwise of any matter or the doing of any other act which:
- Scandalises or tends to scandalize, or lowers or tends to lower the authority of, any court; or
- Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
- Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
- Also, articles 129 and 251 of the Constitution of India empower the Supreme Court and the High Court respectively to punish people for its contempt.
Reply to the case by Bhushan
Adv. Prashant Bhushan filed a 142-page long affidavit in reply to the case of contempt initiated against him. Some of the points highlighted by Adv. Bhushan was as follows:
- The tweets by him dated 27 June 2020 and 29 June 2020 were “primarily the result of his anguish at the non-physical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal”.
- According to him, the facts about CJI sitting on the superbike without mask and helmet amidst the pandemic and in the presence of many people is true as also put forth by media. It was made to highlight the incongruity of the situation and cannot be regarded as contempt, otherwise it would stifle free speech.
- To the second tweet, he said that it was his bona fide opinion of the state of affairs of the country and that he truly believes that democracy has been destroyed in the past six years.
- He mentions that “Such expression of opinion however outspoken, disagreeable or however unpalatable [to] some, cannot constitute contempt of court”. Further, he says that “it is the essence of democracy that all institutions, including the judiciary, function for the citizens and the people of this country and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion to reform the institution.”
- He also submitted that Chief Justice is not the Supreme Court and comment on how the CJI conducts himself, is not on Supreme Court, and does not amount to “scandalizing or lowering the authority of the court”. Supreme Court cannot be equated with a Chief Justice, or even a succession of four CJIs.
- According to him, the power of contempt under Article 129 is to be utilized to aid in the administration of justice and not to shut out voices that seek accountability from the Court for its errors of omissions and commissions. To curb constructive criticism from persons of knowledge and standing is not a ‘reasonable restriction’.
- In the reply, he also included a list of incidents during the tenure of the last 4 CJI based on which he formed such an opinion.
- Adv. Bhushan relied on various judgments of the Court and the speeches of retired and sitting judges on dissent in democracy to justify his opinion.
- He even highlighted the fact that other democracies on the jurisprudence of which contempt laws in India were developed have amended the concept of ‘scandalizing the Courts’ as being unconstitutional, while the provisions still find a place in the laws of our country.
- Finally, he submitted that he was entitled and obligated to put forward his criticism, as every citizen must criticize public institutions and functionaries if they genuinely believe there is something wrong with them.
- Mr. Dave, who is arguing the case on behalf of Adv. Bhushan submitted that “Contempt is to be used sparingly and only for administration of justice. If a judge is defamed, he should seek relief in the ordinary laws of defamation”.
While holding the advocate-activist guilty for the contempt of Court, and observing that, “If an attack is made to shake the confidence that the public at large has in the institution of the judiciary, such an attack has to be dealt with firmly”, the Court delivered the following judgment:
- The court said that “the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded”.
- The bench also pointed out that when a statement is made against a judge as an individual, the contempt jurisdiction would not apply, but if it is made against a judge as a judge and harms the administration of justice, then the Court would not be an onlooker.
- The tweet about CJI riding the bike gave an impression to a layman that CJI is enjoying his ride while the Supreme Court is in “lockdown mode”. It cannot be said to be an attack on CJI as an individual, but an attack on him as the “Administrative Head of the judiciary of the country”.
- That the tweet about CJI astride a superbike undermined the faith in Judiciary. It was held that the tweet “has the tendency to shake the confidence of the public at large in the institution of the judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice”.
- Concerning the second tweet, the Court held that it cannot be said to be against a particular judge, but the entire Supreme Court.
- In the opinion of the Court, the tweets cannot be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest. While holding this, the Court also took into consideration the extent of publication of the tweet.
- Finally, the Court held that, “There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of the judiciary” and that “the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of the law”.
After the judgment, a lot of advocates, judges, etc have come out in solidarity with Adv. Bhushan. They have criticized the judgment as according to them, it would harm the freedom of speech and would discourage people from boldly expressing their genuine beliefs. Moreover, some argue that the case could have been heard after the physical functioning of the Court was resumed, as other more important matters need consideration at this point.
The next hearing is scheduled on 20th August 2020, during which the liability of Adv. Bhushan will be decided by the Court.