By Dhanuja T. from School of Excellence in Law, Chennai
The Supreme Court held the Senior Advocate and Activist Prashant Bhushan guilty of Contempt of Court on August 14, 2020. On July 22, the respective case was taken up suo moto by the Court based on the two tweets made by the Bhushan after a complaint filed by one Mehek Maheshwari without the consent of the Attorney General of India. The case was heard by a bench of Justices Arun Mishra, B.R.Gavai and Krishna Murari.
Contempt of Court:
Indian Constitution: Article 129 and 215 of the Indian Constitution provides the power to the Supreme Court and High Court respectively to punish people for Contempt of Court. Also Article 142 of the Indian Conception also provides the power to punish for its contempt.
The Contempt of Court Act, 1971: Section 10 of this Act defines the power of the High Court to punish contempt of its subordinate courts. The Supreme Court and High Courts also have the power to punish for contempt of Court, either with simple Imprisonment for a term up to six months or with fine up to 2,000 or with both. Section 2 of this Act defines two types of Contempt. They are
- Civil Contempt:
According to Section 2(b) of the Contempt of Courts Act of 1971, Civil Contempt is the wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.
- Criminal Contempt:
According to Section 2(c) of the Act, Criminal Contempt is the publication of any matter or the doing any other act whatsoever which,
- Scandalises or tends to scandalise 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.
The tweets in issue of contempt of Court were posted by Bhushan on June 27 and June 29.
- Tweet 1: “When historians in future look back at the 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 mark the role of the last 4 CJIs.”
- Tweet 2: “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 Supreme Court in lockdown mode denying citizens their fundamental right to access justice!” A photo of CJI Sharad A.Bobde riding Harley Davidson motorcycle is also attached with this tweet.
The learned Senior Counsel Shri Sajan Poovayya along with learned Counsels Mr Priyadharshini Banerjee and Mr Manu Kulkarni appeared on behalf of the Twitter. The Court adjourned to 05.08.2020 directing to file the reply and also invited Attorney General of India for suggestion. The Senior Counsel Dushyant Dave addressed the court in representation of Prashant Bhushan.
Prashant Bhushan filed an affidavit-in-reply containing 134 pages along with annexures containing 463 pages. He submitted that if his first tweet is considered to be the contempt of Court, then it would constitute an unreasonable restriction on the right to free speech to the citizen under Article 19(1)(a) of the Indian Constitution. And as far as second tweet, it is my bonafide opinion regarding the state of affairs in the country in past six years and the role of Supreme Court and in particular the role of the last 4 CJIs. He submitted that assuming CJI is Supreme Court and Supreme Court is CJI is equivalent to undermine the institution of the Supreme Court of India.
Twitter Inc. of California, USA in the affidavit-in-reply stated that it is a global website providing micro-blogging platform for self-expression of its users and to communicate. It is further stated that the tweets in question have been authored and published by the Advocate himself and the twitter platform did not have any editorial control on the tweets and merely it acts as a display board. Also after the order dated 22.07.2020 of this Court the same tweet were blocked access and disabled.
After the filing of reply and arguments, The Supreme Court held Prashant Bhushan guilty on 14.08.2020 in its judgment containing 108 pages and reserved the order for punishment for his conviction on 20.08.2020. Then Advocate Dushyant Dave and Rajeev Dhavan, counsels for Prashant Bhushan requested the Court to adjourn the hearing in light of the review petition intended to be filed. The Apex Court assured that they won’t punish him until his review petition against the conviction order is decided. Senior Advocate Dave argued that it does not amount to contempt of Court, it is just a criticism made against an individual. On August 20 while hearing, the court gave Bhushan 2 or 3 days’ time to reconsider his statement and tender an unconditional apology if he desires. On the other hand the Attorney General of India, K K Venugopal requested the Court to let him off without punishment. On August 25, after the refusal of Prashant Bhushan to tender an unconditional apology the Court reserved its verdict on quantum of his punishment on August 31. Finally the Justice Arun Mishra led bench of the Supreme Court on August 31 held that “the act committed by the contemnor is a very serious one and considering the request of Attorney General, we are sentencing the contemnor with a nominal fine of Rs.1/-. Also this fine should be deposited with the Registry of this Court by September 15, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practicing in this Court for 3 years”.
2019 Contempt case against Bhushan:
The Attorney General of India and the Government of India initiated contempt proceedings against Bhushan for his tweets on February 1, 2019 in relation to the hearings before the Supreme Court of India in the case involving appointment of CBI chief. However the Attorney General later sought to withdraw the case proceedings indicating that the comments had been a “genuine mistake” by Bhushan. The tweet is as follows, “I have just confirmed personally from the leader of opposition Mr Kharge that no discussion or decision in HPC meet was taken re-appointment of Nageswara Rao as interim Director of CBI. The government appears to have misled the court and perhaps submitted fabricated minutes of HPC meeting”.
11 year old Contempt Case:
In an interview given to Shoma Chaudry of Tehelka magazine, Bhushan alleged that at least half of the 16 former Chief Justices in the Supreme Court were corrupt. Harish Salve, Senior advocate and former Solicitor General of India filed a contempt case against him in 2010 and it was heard before the bench headed by then CJI SH Kapadia. Prashant Bhushan had also made serious allegations against CJI Kapadia in his interview stating he heard a case involving Sterlite Company while he held shares in the company. In this case Shanti Bhushan, the father of Prashant Bhushan impleaded himself as a party backing his son. Supreme Court asked Bhushan to apologise. In response to that Bhushan submitted an explanation stating why he felt those judges were corrupt. Also he added that getting documentary evidence in this regard is difficult for him because the judges are immune from investigation. Bhushan also recommended for the amendment of the Contempt of Courts Act clause, stating it effectively prevent the press from exposing the corruption in the judiciary. He also showed opposition to the rule which prevents people from registering a First Information Report against a judge without the permission of the Chief Justice of India.
Krishna Iyer, a former Supreme Court Judge said that either the Bhushan should be charged for the false charges or an independent authority should be set up to scrutinise their allegations. This case was lastly heard in 2012, after eight years the case resumed to be heard on August 4, 2020 by the same bench hearing the recent two tweet issue.
The Apex Court had made clear to Bhushan and Tejpal that it would hear the contempt case against them, if it does not accept received their “explanation or apology” in the matter. Since no explanation or apology from both have been received the Supreme Court on August 10, 2020 said further hearing was required in the 2009 criminal contempt case against Prashant Bhushan and the Journalist Tarun Tejpal to examine whether comments on corruption against the Judges per se amounted to contempt to court or not. The Bench adjourned the matter on August 17 for hearing. Senior Advocate Rajeev Dhavan represented the court on behalf of Prashant Bhushan and Senior advocate Kapil Sibal appeared for Tarun Tejpal.
On 24 August written submission was filed before the Supreme Court by the Senior Advocate Rajeev Dhavan as Bhushan’s comments were opinion made in good faith founded on true facts. On 25 August, the Apex Court framed revised questions of law and ordered the matter to be listed before the appropriate bench on September 10.
In this way Prashant Bhushan is not a new one for Contempt of Court. Here in all the Contempt cases there is a big clash between the Article 19 (Freedom to speech) and Article 129 and 215 of Indian Constitution (Power of the Supreme and High Court respectively to punish people for contempt). Only a brief guidelines is setup In Re: S.Mulgoakar case (198) 3 SCC 339. In view of receiving detailed guidelines from this Court, the matter was directed to a constitutional bench with a revised questions respect to the issues in Contempt of Court. So this time everyone can expect proper guidelines from the Court in this regard.