For ensuring smooth conduct of any democratic society it is necessary to give the right to freely express their views and opinions to members of the society- John Milton. This also applies to the judicial system of any country for the betterment of its administration. However, the Contempt of Courts Act, 1971 gives the judiciary power to punish any criticism no matter how beneficial it could be for the improvement of its working. This article aims to analyze the Suo moto criminal contempt case against Adv. Prashant Bhushan for the tweets posted by him in respect of the judiciary.

Introduction

The Supreme Court, on August 14th, 2020 held Adv. Prashant Bhushan guilty of contempt of court for his two derogatory tweets on Chief Justice of India (CJI) Sharad A. Bobde and the Supreme Court.

Background

On July 21st, 2020, the Supreme Court registered a Suo moto contempt of court case under Section 2(c)(i) of the Contempt of Courts Act, 1971 (the Act), against Adv. Prashant Bhushan. The case was registered as a result of a complaint by Mahek Maheshwari stating that the tweets made by Adv. Bhushan provoked a feeling of no confidence among the public in the independence of the judiciary and disrespected the dignity of the court. Therefore, it amounted to ‘scandalizing of court’ under Section 2(c)(i) of the Act.

Additionally, Adv. Bhushan is also facing another contempt case from 2009 which pertains to the allegations with respect to Adv. Bhushan’s interview in 2009 with Tehelka Magazine, where he allegedly said that half of the last 16 CJIs were corrupt.

Tweets By Adv. Bhushan

Contempt of Court

On June 27th, 2020, he tweeted in respect of four previous CJIs (CJI Khehar, CJI Misra, CJI Gogoi, and CJI Bobde). The tweet addressed the role of the Supreme Court and earlier CJIs in the destruction of democracy. In the tweet of June 29th, 2020, he commented on the current CJI Bobde, seated on a Harley Davidson motorcycle worth rupees 50 lakh, without a mask and a helmet. He further said that CJI Bobde had kept the Supreme Court in lockdown mode and restricted the citizens of their fundamental right to access justice. This particular tweet dated June 29th, 2020 attracted the complaint to initiate criminal contempt proceedings against Adv. Bhushan.

What Is Contempt of Court?

Lord Diplock in Attorney General vs. Times Newspaper Ltd., defined contempt as conduct in relation to particular court proceedings which tends to undermine that system of court or to restrain citizens from availing themselves of it for the settlement of their disputes. Simply put, contempt of court is a concept that seeks to protect the judiciary from provoked attacks and unwarranted criticism, by acting as a legal medium to punish those who disrespect the judiciary. Before 1971, contempt of court cases were dealt under Contempt of Courts Act, 1952, but that was not clearly defined as to what constituted contempt. So, in 1971, The Contempt of Courts Act, 1971 came into force, that distinguishes contempt of court into criminal contempt and civil contempt. 

The Supreme Court in the landmark judgement in State of Haryana v. Ch. Bhajanlal, recognized the following speech and written statements to constitute as contempt

  • Spoken words or written statements by scandalizing the court, or by abusing parties to actions, or by prejudicing mankind in favor of or against a party before the cause is heard;
  • Spoken words or written statements misrepresenting the proceedings of the court by prejudicing the public for or against a party or involving reflections on parties to a proceeding;
  • Spoken words tending to influence the result of a pending trial, whether civil or criminal is a grave contempt;
  • Comments on pending proceedings, if originating from the parties or their lawyers, are normally a more serious contempt than those coming from independent sources.

Kinds of Contempt Under Contempt of Courts Act, 1971-

According to Section 2(a) of the Act, contempt of court means civil contempt or criminal contempt. Civil contempt is fairly straightforward. Section 2(b) states that civil contempt is committed when someone willfully disobeys any judgement, decree, order, writ or other processes of a court, or willfully breaches an undertaking given to the court. However, criminal contempt is comparatively complex. According to Section 2(c), it consists of three forms: (i) written or spoken words, any signs and actions that “scandalize” or “tend to scandalize” or “lower” or “tends to lower” the authority of any court of law (ii) detriments or interferes with any proceeding of the judiciary, or (iii) interferes with or obstructs the smooth administration of justice.

Criminal contempt as applied in the case of Adv. Bhushan’s tweets is defined as an expression of speech that scandalizes or lowers the authority of judiciary, or tends to do so and detriments or interferes with any judicial proceeding.

Punishment for Contempt

Contempt of Court

Section 12(1) of the Act provides that a contempt of court may be punished with (a) simple imprisonment for a term extending to six months, or (b) fine extending to two thousand rupees, or (c) both. This punishment can be imposed only if the court is satisfied that the contempt substantially interferes, or tends to substantially interfere with the due course of justice. However, if the accused makes an apology to the satisfaction of the court, he may be discharged or the punishment awarded to him may be remitted.

Section 12(3) states that a person held guilty of civil contempt can be detained in a civil prison for a term not exceeding six months, if the imposition of fine does not satisfy the court to meet the ends of justice.

Section 12(4)&(5) state that, when the contempt is committed by a company with the consent or in collusion, or due to neglect on the part of, any director, manager, secretary or any officer of the company, such persons shall also be deemed to be guilty of the contempt and may be liable for punishment, with the leave of the court, by the detaining such persons in civil prison. However, lack of knowledge or neglect on part of such persons with regard to contempt can be a valid defence against the punishment.

Further, Section 9 also states that any disobedience, breach, publication or other act which is punishable under this act for contempt of court may also be punishable under the provision of any other act.

Adv. Bhushan’s Reply in The Suo Moto Contempt Case

Contempt of Court

On August 3rd, 2020, Adv. Prashant Bhushan filed his reply to the notice in Suo moto contempt case. The highlights of his reply are as follows:

  • Constructive criticism (criticism in good faith), however straightforward and unappealing it is, cannot constitute contempt of court. 
  • The tweet of June 29th was to highlight his distress due to the virtual functioning of the Supreme Court for more than 3 months. As a result of which, the fundamental right of citizens facing serious and urgent complaints were not being taken up for redressal. If this is regarded as contempt, it would curb the freedom of speech and constitute an unreasonable restriction on Article 19(1)(a) of the Constitution.
  • The tweet of June 27th was his bonafide impression about the CJIs, and it is considered just his opinion that the Supreme Court allowed the destruction of democracy. Such an expression of opinion however direct cannot constitute contempt.
  • He also mentioned that the Chief Justice is not the court, and the court is not the Chief Justice. Therefore, raising issues of concern regarding the manner in which a CJI conducts himself during the court vacations or the manner in which earlier four CJIs have used or failed to use their powers does not amount to scandalizing or lowering the authority of the court.
  • Preventing any citizen from expressing his opinion in good faith for the interest of the public and from evaluating the judiciary’s performance is not a reasonable restriction on the fundamental right to free speech.
  • Many democratic countries (such as England and Wales) have abolished the offence of scandalizing the court, as it is inconsistent with the constitutional guarantee of free speech and fair trial since it gives the judge alone, a special immunity from criticism. It also gives power to the judges to punish their critics by being judges of their own cause, as against the principle of nemo judex in causa sua (no-one is a judge in his own cause). As regards this, Adv. Bhushan along with N. Ram (former MD of the Hindu) and Arun Shourie (former Union Minister) filed a Writ Petition in the Supreme Court challenging the constitutionality of Section 2(c)(i) of the Act, which defines the offence of ‘scandalizing the court and lowering its authority’. However, on August 13th, 2020 the Court allowed the petitioners to withdraw this writ petition.

The discrepancy in The Offence Of ‘Scandalizing the Court’-

Contempt of Court

The problem with ‘scandalizing the court’ under Section 2(c)(i) of the Act, is that it is largely subjective, and speculative in nature. We shall review some case laws relating to the Section for better interpretation.

P.N. Dua vs. V.P. Shiv Shankar & Others

In 1987, a lawyer P. N Dua filed an application before the SC, to initiate contempt proceedings against the then union minister of law V. P. Shiv Shankar. The allegations in the contempt case were in respect of the speech delivered by V.P Shiv Shankar at a meeting of the Bar Council of Hyderabad. He said that people from elite class that majorly comprised the Supreme Court had sympathies from the Zamindars and FERA (Foreign Exchange Regulation Act) violators, bride burners and a whole horde of reactionaries had found their heaven in the SC.

It is crucial to note that, even though such harsh comments were made by V. P. Shankar, the Supreme Court took an open-minded view and held that the statements did not amount to contempt. The reason given was that there was no imminent danger of interference with the administration of justice or disrespect to the authority of the court.

Arundhati Roy vs. Unknown

In 2002, the Supreme Court held writer-activist Arundhati Roy guilty of contempt, with one-day imprisonment. A contempt case was filed for a dharna that was held outside the SC, under the leadership of Roy, raising slogans attributing lack of integrity of the judges. However, what triggered the judges the most was the reply affidavit filed by Roy. It stated that the SC judges were too busy to hear a matter involving national security and corruption at highest places, but was willing to entertain a petition against people who questioned the policies of the government and criticized a judgement of the SC.

The statements made by Roy were more respectful as compared to the statements of V. P. Shiv Shankar, however, the Court refused to apply the precedent of P.N. Dua vs. V.P. Shiv Shankar & Others  in her case.The reason given wasthat he made a studied criticism of the Court while Roy had no special knowledge of law and courts.

Observation: Looking at these cases, we can deduce that there is no consistent pattern in determining what constitutes ‘scandalizing the court’ and what does not. Simply put, it depends majorly on the temperament and personal predictions of the judge. What could constitute contempt to judge X may not necessarily constitute contempt to judge Y.

Additionally, even going by the definition of criminal contempt, a broad net has been cast, as the act need not even actually scandalize or lower the authority of the court. Even an act which tends to scandalize or lower the dignity of the court can be held as contempt. So apart from giving a large room for subjectivity, the provision also gives a way for a lot of speculation.

Position of The UK on ‘Scandalizing the Court’

In December 2012, the UK Law Commission submitted in a report that the offence of ‘scandalizing the court’ had almost disappeared by the end of the 19th century. The report also recommended abolition of the offence as it was obsolete, and in principle an infringement of freedom of expression that should be retained without strong practical justification. Therefore, in 2013, the UK Parliament abolished the offence of ‘scandalizing the court’ by declaring it as vague and incompatible with freedom of speech and enacted the Crime and Courts Act, 2013

Conclusion

Contempt of Court

As can be seen from the case law precedents, the interpretation of the offence of ‘scandalizing the court’ is largely subjective in nature, leading to a situation where the right to reasonable criticism of an individual is at the mercy of the judges. Due to this, the UK has abolished the offence of scandalizing the court. However, in 1981, in the case of Vincent Panirulangar v. S V.R. Krishna Iyer, the Kerala High Court held that the statements in the speech delivered by Justice Krishna Iyer with respect to the judiciary fell under ‘objectionable criticism’ of the court, but not under ‘criminal contempt’ that scandalizes the court.

This distinction was made by stating that in democracy, no institution is beyond the reach of honest criticism and courts were no exception. Criticism within the permissible limits should not be taken to scandalize or lower the authority of the court. Therefore, now the action of the Supreme Court to hold Adv. Prashant Bhushan guilty of contempt for expressing his bona fide impression of the judiciary may fall under the ambit of violation of a citizen’s fundamental right to fair criticism. Justice D.Y. Chandrachud once said that dissent is the way to keep democracy safe. The apex court of the country must in fact vehemently protect the freedom of bonafide criticism, even against the judiciary.

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