A CASE COMMENTARY ON PRASHANT BHUSHAN & ANR.

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By Abhishek S. , a passout from Amity Law School, Noida

A Case Comment on IN RE: PRASHANT BHUSHAN AND ANR.[1]

Introduction

This judgement of the Supreme Court was delivered on 14th August, 2020 by a three-judge bench which comprised of Justice Arun Mishra, Justice B.R. Gavai, Justice Krishna Murari. In this case comment the researcher shall deal with Contempt of Court of criminal nature. The Judiciary is open to fair criticism. Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution of India guarantees every India citizen, freedom of speech as a fundamental right notwithstanding the reasonable restrictions given under Article 19(2). In C.K. Daphtary v. O.P. Gupta[2] (1971), the Supreme Court held that the existing law of criminal contempt is to be considered as a reasonable restriction. But that doesn’t stop a citizen of India to express his displeasure towards the judiciary.

Facts

A petition was filed in the Supreme Court by Mahek Maheshwari bringing to notice of the court, a tweet made by Mr. Prashant Bhushan, alleged to be contemnor No. 1 praying therein to initiate Contempt of Court proceedings against him. The petition was initially placed on the administrative side of the court with the view of seeking direction as to whether the petition should be listed for hearing or not. This was due to the fact that the petitioner had not obtained the consent of Attorney General for India for filing the said petition. The Supreme Court on the Administrative side directed the said petition to be listed in Judicial side to pass appropriate orders.

The said tweet was as follows:

“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!”

The Supreme court while passing an order took the view that the tweet in question and also another tweet which was published in the Times of India on 27th June, 2020 both made by Mr. Prashant Bhushan had brought the administration of justice in disrepute and were capable of undermining the dignity and the authority of the Supreme Court and the office of the Chief Justice of India in the eyes of the public at large.

The tweet published in the Times of India on 27th June 2020 was as follows:

“When historians in future look back at the last 6 years to see how 3 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.”

Twitter Inc. was alleged to be contemnor No. 2.

The Supreme Court took suo motu cognizance of both the tweets and suo motu registered the proceedings.

Issues

  1. Whether a suo motu contempt proceeding can be initiated on the basis of a petition filed by a person without the consent of the Attorney General for India or not.
  2. Whether the statements made in the tweets are entitled to protection under Article 19(1) of the Constitution of India as a fair criticism of the system made in good faith in the interest of public at large or not.

Background

Section 3 (c) of Contempt of Courts Act 1971 states,

“(c) Criminal Contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which

  1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
  2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
  3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”

Article 129 of the Constitution of India states,

“129. Supreme Court to be a court of record The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself”

Decision

Addressing the above mentioned first issue the Supreme Court in its decision relied on Re: Vijay Kurle & Ors[3]  and stated that the Supreme Court draws its power to proceed for an action of contempt from Article 129 of the Constitution of India and the Supreme Court’s power to initiate contempt is not limited by the provisions of the Contempt of Courts Act, 1971. As far as suo motu petitions by the Supreme Court are concerned, the court can initiate the proceedings on the basis of information received by it. The procedure as prescribed in the judgment of P.N. Duda vs. P. Shiv Shanker & Others[4] has to be followed which according to the Supreme Court, was followed in this case. The Supreme Court further added that there is no requirement of taking consent of anybody including the Attorney General for India in case of suo motu petitions as the Court is exercising its inherent powers to issue notice for contempt. As soon as the court takes cognizance, the matter is between the Court and the contemnor. The procedure followed ought to be just and fair and in accordance with principles of natural justice.

The Supreme Court examined the legal position of the matter and relied on Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh[5] to analyse the term of scandalising the court. The court was concluded that any publication which attacks on individual judges or the court as a whole with or without any reference to particular case and in turn defames the character or ability of the judges, would come within the purview of the term of scandalizing the court. Any such conduct tends to create distrust in the minds of the public at large and could impair the confidence of the people in the courts, which are very important to the protection of the rights and liberties of the litigants.

The Supreme court relied on Baradakanta Mishra vs The Registrar of Orissa High Court & another [6] and stated that when a judge vested with disciplinary control makes decisions, functions in the same manner as if he is hearing and disposing cases even though the procedure and the place where he sits may be different. In both the scenarios, the powers exercised by the judge is in due course of judicial administration. The court relied on In re Hira Lal Dixit and two others[7]  to stress the point that it is crucial to refer to the time and place of publishing of statements to check if it tends to hinder the due administration of justice and was a contempt of court.

The Supreme Court analyzed the tweets keeping in mind a layman’s understanding at the instant of reading them. The first tweet was divided into two parts and the part which said  “…at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!” was seen as factually incorrect as the contemnor No.1 himself knows that in the wake of COVID-19 pandemic, even though the physical hearings of the court were suspended various benches of the court sat regularly and the contemnor 1 had himself appeared in many matters. Therefore, the court found the above-mentioned statement to be false, malicious and scandalous and the same were understood to affect the confidence in the judiciary in the minds of public at large. The Supreme Court was of the opinion that the second tweet tended to give an impression that the Supreme Court had played a particular role in the destruction of democracy during the course of last six years and the last four CJIs too played a role in the same. The statements clearly criticized the entire Supreme Court and the last four Chief Justice of India. The huge extent of publication was also one of the factors that were required to be taken into consideration while considering the question of good faith as publication by the method of a tweet could reach millions of people. The Supreme Court relied on National Lawyers Campaign for Judical Transparency and Reforms and others vs. Union of India and others[8]  and Re: Vijay Kurle & Ors[9] wherein the Court suo motu took action against the advocates who had made scandalous allegations against individual judges. The Supreme Court concluded that in this case the alleged contemnor No. 1- Mr. Prashant Bhushan, attempted to scandalise the entire institution of the Supreme Court and thereby was guilty of having committed criminal contempt of the Supreme Court of India.

The court accepted the explanation given by contemnor No. 2 wherein it stated that it is only an intermediary and that it has no control on what the users post on the platform.

Post Judgement Developments

After the conviction the Supreme Court granted time to contemnor Mr. Prashant Bhushan to issue an unconditional apology. Instead of apologising, he filed a statement on 24.08.2020 and its concluding statement read as, “If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.” The Supreme Court in the presence of the Attorney General of India vide its judgement on 31.08.2020 decided the quantum of punishment for the matter. The contemnor was asked to pay a fine of Re. 1/- (Rupee one) and deposit the same with the Registry of the Supreme Court by 15.09.2020. On failing to pay the fine the contemnor was liable to undergo a simple imprisonment for a period of three months and in addition to it, he would be debarred from practising in the Supreme Court for a period of three years. Mr. Prashant Bhushan agreed to pay the fine of Re 1/- but sounded his decision of filing a review petition.

Conclusion and Comments

It can be argued that the line between criticism and contempt is rather thin than invisible. When a court is tasked with evaluating whether a remark is criticism or contempt, it shall proceed with caution to check on which side of the line the alleged contemnor has his larger part of his foot. The Supreme Court has kept its door open for criticism, yet it may be noted that the space allowed to fair criticism looks like an island in an ocean. As the term ‘scandalising the court’ is not defined in the Contempt of Courts Act, 1971, it can be broadly referred to as statements or publications, which may tend to undermine the public confidence in the judiciary. When a statement or publication is said to be capable of interfering with the confidence the public has in the judiciary, serious consideration should be given to checking the truthfulness of such statements or publication. A common man’s mind is not a clean slate upon which any person can write whatever he feels like. A common man believes only what he considers to be true. Here in this case, the alleged contemnor had made many statements in his pleadings and had prayed for defence of truth for the statements he had made in public interest which may be considered to be bona fide under Section 13 of Contempt of Courts Act, 1971. Before deciding the quantum of punishment, the Supreme Court evaluated the statements only to conclude that the alleged contemnor has made a series of allegations on a large number of retired as well as sitting judges including the Chief Justices as to their role on judicial as well as administrative side. The Court believed that considering such statements for the defence of truth would only derogate to the reputation of the court and scandalise and bring administration of justice in disrepute and concluded that those statements were neither in public’s interest nor were bona fide and the defence of truth was denied. Every member of the general public has his right to know the truth from the apex court. One may feel that fear has prevailed instead of giving a chance to prove what a person believes to true and that too coming from a person who has been associated with courts for over 35 years. The Kerala High Court, tasked with evaluating if Justice Krishna Iyyer was guilty of contempt of court while delivering a speech, concluded:

There is an ocean of difference between well informed and ill-informed criticism. Those who have spent years and perhaps a lifetime as part of an institution or to study an institution may have occasion to make a thorough objective assessment of that institution. What they say in regard to a matter concerning that institution should be viewed differently from a similar statement by an uninformed person.”

The Supreme Court while evaluating the speech given by P. Shiv Shankar, a former High court Judge, opened its doors for fair criticism by quoting, “We must turn the search light inward”.

It is true that the allegation on the sitting judges of the Apex Courts tends to affect the common man’s faith in judiciary but existence of a fair mechanism is lacking in the current system to check the validity of such allegations and further investigation on such matter if they’re found to be true.

The quantum of punishment of Re 1/- may not be a hefty sum to pay but being held guilty for contempt of court surely does some damage to the reputation of a vastly experienced advocate. This case will be seen as an instance where the Supreme Court flexed its muscles to remind that the Supreme Court can suo motu take cognizance of any statements it considers to be contempt of court and that the fundamental right of Freedom of speech and expression enshrined in Article 19 of the Constitution of India is not absolute.


[1] SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020

[2] 1971 AIR 1132

[3] 2020 SCC Online SC 407 (Suo Motu Contempt Petition (Criminal) No.2 of 2019 

[4] (1988) 3 SCC 167 

[5] 1953 SCR 1169 

[6] (1974) 1 SCC 374

[7] (1955) 1 SCR 677 

[8] 2019 SCC Online SC 411 

[9] supra

References

www.thehindu.com

indianexpress.com

www.indialegallive.com

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