PRASHANT BHUSHAN’S CASE: THE LARGER QUESTION OVER CONTEMPT

PRASHANT BHUSHAN’S CASE: THE LARGER QUESTION OVER CONTEMPT

Author:- Pranavi Bysani from Alliance School of Law, Alliance University, Bangalore.

Introduction

Last week, a three-judge bench of Supreme Court of India headed by Justice Arun Mishra imposed a Re. 1 penalty on lawyer-activist Prashant Bhushan for contempt of court for his tweets that were against the judiciary.

On June 29, 2020, Lawyer – Activist Prashant Bhushan tweeted on a picture of Chief Justice of India reading, “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!”.

Before this on June 29, 2020, Bhushan also tweeted, “When historians in the future look back at the last six 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 the role of the last 4 CJIs”.

On July 21, 2020, the Supreme Court of India initiated a suo moto contempt proceedings against Bhushan for the above-mentioned tweets. The court said that Bhushan’s remarks undermine the confidence of the public in the judiciary and could harm the administration of justice. The Supreme Court also said that any criticism made for the public interest of the judges does not constitute contempt. The court also affirmed that vilification of a judge is a form of scandalizing the court.

However, what is Contempt of Court? Contempt of Court has not been defined in any of the legislation. A Contempt of Court refers to an offence disrespecting and disregarding the dignity or authority of the courts and judicial servants. According to Halsbury, a contempt is consisting of words spoken or written which obstruct or tend to obstruct the administration of justice. According to Section 2(a) of the Contempt of Courts Act, defines contempt of court as Civil Contempt or Criminal Contempt.

In India, Contempt of Court is of two kinds.

  1. Civil contempt:

Section 2(b) of the Contempt of Courts Act defines Civil Contempt as, “Any willful disobedience showed towards any judgement, decree, direction, order or any other process of a court or willful breach of an undertaking given to a court”.

  • Criminal Contempt:

Section 2(c)) of the Contempt of Courts Act defines Criminal Contempt as “Publication either in a written, oral or in the form of any expression of any matter or the doing of any act whatsoever which:

  1. Scandalizes the court or intends to scandalize the court
  2. Prejudices or interferes with the course of any judicial proceeding or intend to do so.
  3. Interfere or tend to interfere with the administration of justice in any other manner”.

An action that is done against the dignity and authority of the courts is seen as criminal contempt. Whereas, when a person fails to do something that has been instructed by the courts in a civil matter, the act not doing the instruction is said to be a civil contempt. The act was amended in 2006 and included ‘the defence of truth’ under Section 13. This section implies that the court must permit the justification by the truth as a valid defence based upon the interest of the public.

Under the Section 12 of the Contempt of Court Act, 1971, contempt can be punished with simple imprisonment for a term which may extend to a maximum of six months, or with fine which may extend up to two thousand rupees or with both.

The Supreme Court or High Courts have the authority to punish for the offence of contempt of court. Since 1991, the Supreme Court has the authority not only to punish itself for contempt but also the high courts, subordinate courts and tribunals functioning in the entire country. According to section 10 of the Contempt of Courts Act, 1971, the High Courts, on the other hand have been given extraordinary powers to punish contempt of subordinate courts.

To the above charges, Bhushan’s arguments pretty much focused on procedural lapses behind his tweets. He also added that the tweets were made in the interest of the public. He said that the photograph attached of the CJI violates the lockdown rules where, on the other hand, the Supreme Court was not operating because of the risks involved. Bhushan regretted saying that the CJI Bobde was riding a bike when the picture only shows that he was seated

In his defence for the tweet criticizing the role of the Supreme Court in the ‘destruction of democracy’, Bhushan listed various pending cases and their petitions including petitions against the abrogation of Jammu and Kashmir’s special status, Citizenship Amendment Act etc. Bhushan’s reply affidavit of 132 pages also mentions the corruption scandals involving some of the Supreme Court Judges, the court’s refusal to interfere in protecting the workers during the lockdown which resulted in migration.

The reply affidavit also states that Bhushan did not suggest that the CJI denied the citizens to exercise the fundamental rights to access justice but was looking for an alternative for the court to function. However, the court held Bhushan guilty on August 11th, and the judgement shows that the court ignored Bhushan’s reply and have not read it.

The court in the summarization of arguments that were made and imposed a fine of Re. 1 against Prashant Bhushan which had to be paid by September 15 or else he would be sent to jail for six months as well as not be allowed to practice law for 3 years. At the time of writing this article, Bhushan has paid the fine imposed on him.

This case sets an exciting precedent for cases with regards to contempt of court. While the fine imposed was a mere Re. 1, the fine was still imposed, and for the eyes of the Supreme Court, Prashant Bhushan was still guilty. Thus, a question arises on the extent to which the freedom of speech given under Article 19(1) (a) of The Constitution f India is available for the people in India.

The framers of the Constitution included Freedom of Speech and Expression under Article 19(1) (a) of the Constitution of India with the view of allowing the people in India to express their opinions with freedom. This means that any person in India is free to express their opinion without any hesitation. In order to maintain public order, Article 19(2) was introduced where it authorizes the government to impose reasonable restrictions upon freedom of speech and expression. So, the restrictions are kept in place in order to uphold the sovereignty, integrity and security of the state, maintain friendly relations with foreign states, decency and morality or contempt of court, defamation or incitement to an offence.

In this case, three thousand former judges, retired bureaucrats, journalists and lawyers have signed a statement condemning the decision of the Supreme Court convicting Bhushan and calling it a ‘disproportionate response’ which might limit the expression of valid criticism of the judiciary.

Therefore, it can be seen that the powers vested with the courts with respect to ‘contempt of court’ are being misused as threats. This defeats the purpose for which it was brought into the picture. This also causes certain amendments or changes that can be made to the act.  The courts should not be allowed to use contempt of court as a means to prevent criticisms. Evermore than now, it is important that the courts to be concerned about the views and opinions of the public.

The role and functioning of the Court  as the protector of fundamental rights must be subject to people’s freedom of speech which includes the right to criticize and the right to have information of the court’s functioning. Nevertheless, the fact that the punishment was only Re. 1 shall not distract from the fact that Bhushan was held guilty of criminal contempt for expressing the demonstrated view that the Supreme Court has failed to act as per its role described under the Constitution of India in recent years.

References:

The Constitution of India, 1950.

The Contempt of Courts Act, 1971.

Drishti IAS. 2020. Prashant Bhushan Judgement & The Law Of Contempt. [Online] Available at: https://www.drishtiias.com/daily-updates/daily-news-editorials/prashant-bhushan-judgementthelawofcontempt#:~:text=When%204%20judges%20in%202018,amount%20to%20%E2%80%9Cfair%20criticism%E2%80%9D.  [Accessed 7 September 2020].

The Quint. 2020. How Supreme Court ‘Harmed’ Its Image By Convicting Bhushan. [Online] Available at: https://www.thequint.com/voices/opinion/prashant-bhushan-contempt-case-supreme-court-conviction-freedom-of-speech-democracy  [Accessed 7 September 2020].

The Hindu. 2020. Prashant Bhushan Held Guilty Of Contempt For Tweets Against CJI. [Online] Available at: https://www.thehindu.com/news/national/prashant-bhushan-heldguiltyofcontemptfortweetsagainstcji/article32351999.ece#:~:text=A%20three%2Djudge%20Bench%20of,India%20(CJI)%20Sharad%20A.&text=The%20tweets%20had%20the%20effect%20of%20attempting%20to%20destabilise%20Indian%20democracy.  [Accessed 7 September 2020].

The Times of India. 2020. SC Imposes Re 1 Fine On Prashant Bhushan: What Is Contempt Of Court? | India News – Times Of India. [Online] Available at: https://timesofindia.indiatimes.com/india/whatiscontemptofcourt/articleshow/77844773.cms [Accessed 7 September 2020].

The Wire. 2020. Supreme Court Fines Prashant Bhushan Re 1 In Contempt Of Court Case. [Online] Available at: https://thewire.in/law/prashant-bhushan-supreme-court-contempt-re-1-fine  [Accessed 7 September 2020].

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