By: Shebin Saji
The Supreme Court of India in its recent judgement of re: Prashant Bhushan and anr., SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020 has sparked the debate on the use of contempt of courts act, 1971 to supress criticism. The court has expressed its displeasure on the two tweets that the contemnor made and held him guilty for scandalising and interfering in the administration of justice. The judgement aims to draw a line between bona fide criticism and those scandalous comments that lowers the majesty of the court and might shake up the confidence of the general public. It held the tweets to be patently false and no magnanimity and compassion was shown to the contemnor who is now awaiting punishment under the act.
The freedom of speech and expression is one of the supreme fundamental right given to the citizens of India. It allows the citizens to speak freely, have bonafide opinions and to criticise strongly. One can even say that Article 19 (1) (a) of the Constitution helps in the healthy functioning of our democracy. However, this fundamental right is not absolute and a ‘lakshman rekha’ is drawn by Article 19 (2) of the Constitution and even the Contempt of Courts Act, 1971 (Act no. 70 of 1971). In re: Prashant Bhushan and anr., SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020, this line is seemed to have been drawn by the Hon’ble Supreme Court of India.
Prashant Bhushan hereinafter referred to as the Contemnor, a tweet was brought to the notice of the Apex Court by Mahek Maheshwari. For the kind perusal of the readers the alleged tweet of the contemnor is produced below: “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!” Since Mr Maheshwari failed to get the consent of the Attorney General (AG) the registry placed the petition on the administrative side and after examination, it was placed before the judicial side. The Court came to know about another tweet made on 27th June 2020 by the contemnor which is hereinbelow produced: “When historians in future look back at the last 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 the role of the last 4 CJIs.” The Supreme Court was of the prima facie view that it a fit case of contempt and initiated a suo motu contempt proceeding which in conclusion held the contemnor guilty of criminal contempt of Court.
Contempt of court has two types, first a civil contempt and second a criminal contempt. The contemnor was held guilty under criminal contempt which is defined under Section 2 (c) in Act no. 70 of 1971. Criminal contempt is attracted when by means of publication of any matter or by doing any act which scandalises or tends to scandalise or lowers the authority of the court; or prejudices or interferes or tends to interferes with any judicial proceeding; or by interfering or obstructing or tends to interferes or tends to obstruct with the administration of justice in any manner. One must also know that while initiating a suo motu contempt proceedings, the Supreme Court derives its inherent power from Article 129 of the Constitution and is free to make procedures accordingly provided that it is just, fair and according to the principles of natural justice. Thus, it is not bound by the procedure in Section 15 of the Act in such proceedings. There is a catena of cases dealing with the conflict between Article 19 (1) (a) and Contempt of Courts Act. It is interesting to go through the jurisprudential evolvement in few of such cases. In Brahma Prakash Sharma v. State of U.P., (1953 SCR 1169), the 5 judges constitution bench held that the confidence on the Courts cannot be created by stifling of criticism. It further says that defamatory attack on the judges can amount to libel but may not necessarily lead to contempt. The 5 judges’ bench in Gobind Ram v. State of Maharashtra, 1972 (1) SCC 740, said that those publication which interferes with due course of justice or the proper administration of law shall be amounting to contempt. Justice Krishna Iyer in Shri Baradakanta Mishra v. Registrar of Orissa & anr., (1974) 1 SCC 374, said that “The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate”- Douglas J., Craig v. Harney, 331 US 367, 376 (1947)”, that “Judges as persons, or courts as institutions, are entitled to no greater criticism than other persons or institutions” When contempt proceedings were initiated in Narmada Bachao Andolan v. Union of India, (1999) 8 SCC 308, the Court although disapproving with the comments made by the contemnors said that its shoulders are broad enough to shrug off their comments. A much talked about judgement in contempt law is the case of P.N. Dua v. P. Shiv Shankar, (1988) 3 SCC 167, where Sabyasachi Mukherjee J., “It is a criticism which the judges and lawyers make about themselves. We must turn the searchlight inward. At the same time, we cannot be obvious to the attempts made to decry or denigrate the judicial process, if it is seriously done”. Even in this case, no contempt proceedings were made out. Lastly in Re: S. Mulgoankar, (1978) 3 SCC 339, it was said that the judiciary should always have a magnanimous attitude in contempt proceedings even when the criticism is unfair but made out bonafide for its improvement.
The problem with initiating a criminal contempt proceeding is that courts have to forgo the principle of natural justice – nemo judex in causa sua i.e. no one is a judge in his own cause. The court takes up the matter in its own cause as it attempts to save itself or its members of the bench from the scandalous attacks and any interference which tends to affect the administration of justice. Since necessity is an exception to the rule of bias, one can only expect the Courts to be just and fair in its proceedings. Usually in order to initiate a contempt proceeding against anyone AG’s permission needs to be sought. The Supreme Court gave stamp to its suo motu proceedings and said no such approval will be required in these cases. However, one may wonder what will be the role of AG in such proceedings. Although the notice was issued to AG, he was not heard in the entire proceedings even after the insistence of the counsel of the contemnor. His assistance was limited while deciding the punishment of the contemnor. The court in its judgement promises to be just and fair but fails to hear AG. Heaven wouldn’t fall if he would have been heard as his valuable opinions might have altered the course of the judgement. Now analysing those tweets, the court divided Tweet no. 1 into two part and only in the second part of it held the contemnor guilty of scandalising the court as the tweet has an effect of giving an impression to the general public that the Apex Court has stopped functioning during COVID-19 and fundamental rights cannot be enforced by them. It has correctly held the tweet to be “patently false” by stating facts even during lockdown the total number of sittings that the various benches had from 23.3.2020 till 4.8.2020 through virtual hearings is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India. The second tweet was divided into three parts. The first part was held to be the contemnors’ personal opinion but the court took strong objections to the latter two parts as the criticism tends to give an impression that the Supreme Court had a part in destroying the democracy of India and particularly the last four CJIs. It not only held it to be scandalising but went ahead to tell how the reach of the tweet and the person by whom such tweet is made has a chilling effect in influencing the masses. The Hon’ble Court has said that the effect of the contemnor tweets has the tendency to affect the administration of justice but in its judgement, the court has given data as to the number of sittings and virtual hearings which shows that despite the ongoing pandemic and the tweets by the contemnor the courts were functioning quite well. Many people have been quite critical of the functioning of the courts and the previous chief justices. Everyone knows when the four senior-most justices of the Supreme Court addressed the media and criticised the way the then CJI was acting . No contempt was initiated against them even when their acts had the effect to scandalise and interfere in the administration of the court which shows how strong the Court is in accepting criticism. This matter could have been taken when the physical hearings would have resumed but the Court has finished the hearing of this case in such a fast manner. Perhaps, if only such an urgency could have been made on other cases like the Habeas Corpus petitions and controversial matters like citizenship amendment act or the partial abrogation of Article 370.
The contempt of courts act is required to uphold the dignity and integrity of the judges and the Courts from the malicious and scandalous publication of any citizen. The act must be used in rare and special circumstances and in those cases where it is absolutely necessary. While dealing with the contempt proceedings it is imperative to know the intent behind making such publications, here, the contemnor has expressly stated that his intent was not malicious rather bona fide nevertheless the Court aims to ensure deterrence to him. But when the contemnor thinks that his comments were in good faith and it is his duty to tell the court when it is wrong, any punishment given to him would be of no use. Thus, if the Supreme Court lets him off with a warning it will not only set an example of its tolerance, generosity, compassion and magnanimity but even show that one of the most powerful judiciaries in the world is not affected by such vile comments and is ready to face any criticism. To conclude, to tweet or not to tweet is one’s prerogative but there shouldn’t be an iota of doubt that no one or any comments by anyone can lower the majesty of our honourable courts.