This article is written by Aparna Jauhari, from Sant Vivekanand College of Law and Higher Studies.

What is contempt of court

Section 2(a) of the Contempt of Court Act, 1971 defines contempt of Court as the civil or the criminal contempt which is punishable under section 12 of the same Act. It is a concept that seeks to protect judicial institutions from motivated attacks and unwarranted criticism, and as a legal mechanism to punish those who want to lower its authority. However, it is generally felt that the existing law relating to contempt of courts is somewhat uncertain, and not satisfactory because:

1. It hits upon two important fundamental rights of the citizens, namely, the Right to Freedom of Speech and Expression and the Right to Personal liberty defined in Article 19 & Article 21 of Indian Constitution respectively.
2. The quantum of punishment for the offence of contempt of court is very less as compared to the punishment for defamation (defined in section 500 of IPC 1860), even though both offences are similar in nature.

Contempt powers of Supreme Court and High Courts under Article 129 of Indian Constitution confer power on the Supreme Court and Article 215 confers power on the High Courts to punish the contempt of itself. These powers are broadly defined and thus, leaves a large room for the court to interpret the statute and to apply its power of discretion. Since no guidelines exist to use these powers, they are sometimes misused resulting in curtailment of citizens fundamental right of freedom of speech and expression. Thus, citizens lose their freedom to fairly criticize the judiciary as they criticize other organs of the government.

Contempt of Court against Prashant Bhushan 

The Supreme Court, upon the complaint filed by the Mahek Maheshwari, took Suo motu cognizance of the tweets posted by activist and advocate Prashant Bhushan on his twitter handle and held him guilty of contempt of court for lowering the authority of the court, through his tweets.

Facts of the case

1. On 27th June, 2020 Advocate Prashant Bhushan tweeted, on his twitter handle that “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.”
2. On 29th June, 2020 he posted the photo of the CJI Justice S.A Bobde riding a Harley Davidson motorcycle, on his twitter handle and tweeted, “ 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!”
3. On 21st July, 2020 Adv. Mahek Maheshwari filed a contempt petition in the Supreme Court against Prashant Bhushan (Contemnor No.1) alleging his tweets as “cheap publicity stunt” with an attempt to “spread hatred in the form of anti-India campaign” and against Twitter (Contemnor No.2) for not putting down the alleged tweets.
4. On 22nd July, 2020 Supreme Court upon observing that contempt petition filed by Adv. Maheshwari lacks prior sanction of the Attorney General of India, took Suo motu cognizance of the tweets posted by the Adv. Prashant Bhushan. Thereafter, a bench comprising Hon’ble Justices Arun Mishra, B. R Gavai and Krishna Murari prima facie observed that the statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Supreme Court. Thus, the bench issued notice to the Contemnors to file their reply on 5th August, 2020 and also issued notice to the Attorney General to assist the court.

Reply of contemnors

Prashant Bhushan (Contemnor No.1)

Regarding his tweet dated 27.06.2020 he states that tweet was posted to express his bonafide intention that:

1. Democracy has been substantially destroyed in India during the last 6 years.
2. The Supreme Court has failed to play his role as the guardian of the constitution and thus contributed to the destruction of democracy in India.
3. Last four CJI’s, in particular, have contributed to the destruction of democracy. Such outspoken expression of opinion cannot constitute contempt of court because in a democracy every citizen has the right to freely and fairly discuss the state of affairs of an institution. Further, to assume that “The CJI is the SC, and the SC is the CJI” is itself a statement that undermines the institution of the Supreme Court of India. The Supreme Court cannot be equated with CJI or even a succession of 4 CJI’s.

Regarding his tweet dated 29.06.2020, he states that the tweet was made to underline his anguish at the non-physical functioning of the Supreme Court for the last more than 3 months, as a result of which fundamental rights of the citizens such as those in detention and others having serious and urgent grievances were not taken up for redressal. Secondly, his intention behind posting the photo of the CJI riding the bike was to highlight the incongruity of the situation where CJI keeps the court virtually, in lockdown due to COVID-19 fear and on the other hand he was seen in a public place with several people around him without a mask. Thus, he concluded that his expression of anguish to highlight this incongruity doesn’t amount to contempt of court. If it were so regarded, then it would be violative of his fundamental right of freedom of speech and expression as it will be an unreasonable restriction.

Twitter Inc. (Contemnor No.2) 

Affidavit-in-reply filed by Contemnor No. 2 stated that:

1. It is a global website that provides a micro-blogging platform to its user for expression of thoughts and to communicate among themselves.
2. It is just an “intermediary” defined under section 2(w) of Information Technology Act,2000 and thus it is not the author or originator of the tweets in question.
3. It has no editorial control on the tweets and merely acts as a display board.
4. After the order dated 22.07.2020 of this court, it has not only blocked the access to the tweets in question but also disabled them.

Court’s Judgement The court held that the tweets posted by Contemnor No.1 are based on distorted facts and thus amounts to committing criminal contempt. As far as Contemnor No.2 is concerned, we accept that it is only an intermediary and doesn’t have any control on what user posts. Moreover, it also acted bonafidely by blocking and disabling the tweets in question. Therefore, we discharge the notice issued to the alleged Contemnor No.2 and hold alleged Contemnor No.1 guilty of committing criminal contempt of this court. Thus, the court sentenced Contemnor No.1 with a fine of Re 1/- (which is to be deposited by 15.09.2020), failing which he shall undergo simple imprisonment for a period of 3 months and shall also be debarred from practising in this court for a period of 3 years.

Adv. Prashant Bhushan complied with the orders of Supreme Court by submitting Re 1/- in the Registry of Supreme Court on 14th September, 2020.

Critical analysis of the case 

The main issue, in this case, was whether Contemnors scandalises or lowers the authority of the Supreme Court as defined in section 2(c)(i) of the Contempt of Court Act, 1971.

• Arbitrariness in Contempt powers of Supreme Courts and High Courts – In England, the offence of Scandalising the court was applicable through the Crime and Courts Act. However, on the recommendation of the Law Commission, it was abolished in 2013. The justification given by the Law Commission behind abolition is that the said offence is an infringement of Freedom of Expression that should not be retained without strong principled or practical justification. Further, it was also a violation of the human rights principle.

In India also the term “Scandalise” used in section 2(c)(i) of the Contempt of Court Act is not defined and contempt powers of the Supreme Court and High Courts are unlimited. This causes arbitrariness and increases the probability of its misuse. Hence, its high time that the Supreme Court should either abolish this offence or define the term “Scandalizing the court” and issue certain guidelines regarding its aim to prevent its misuse by the courts.

• Violation of Article 14 – Section 19 of Contempt of Court Act, 1971 provides the right to appeal against the orders or decisions given by the High Court in the matters of its contempt. It provides provisions for both intra-court appeal and inter-court appeal.

1. Intra-court appeal – In case the order is passed by a single judge of the High Court, its appeal shall lie to a bench of not less than two judges of that High Court.
2. Inter-court appeal – In case the order is passed by a bench of the High Court, its appeal shall lie to the Supreme Court. Further, though contempt proceedings are quasi-criminal in nature and their trial is conducted in a similar manner as the trial for a criminal case is conducted, no procedural safeguard is available to the alleged contemnor as it is available to the alleged criminal. Since neither the right to appeal is available to the person charged with criminal contempt of Supreme Court nor any procedural safeguard is available to an alleged contemnor as it is available to an alleged criminal during the trial, it is simply unreasonable and discriminatory and hence it is the violation of Article 14 of Indian Constitution.

• Freedom of Speech & Expression – Article 19(1)(a) which guarantees freedom and speech and expression to its citizens is the ultimate guardian of all the values that the constitution holds sacred: Rule of Law, Separation of Powers, Free and Fair elections etc. On the other hand, the constitution also provides eight grounds for restricting freedom of speech and expression under Article 19(2), out of which contempt of court is one of them. Since “reasonable restrictions” is the operative word of Article 19(2), courts can utilize their powers of contempt only to aid the administration of justice and not to shut the voices of people that seek accountability from the court for its errors or legal omissions.
• Right to Appeal – Every citizen has a right to appeal, which is a substantive right enshrined under Article 21 of the Indian Constitution, but in the present situation, where the Supreme Court itself initiates a contempt proceeding against the contemnors, there is no provision to appeal against its judgement. Though there is a provision of review in such cases, the petition lies before the same bench and thus, there is less probability of it being considered without any prejudice.

Since Right to Appeal is an absolute right under the provisions of the International Covenant on Civil and Political Rights (ICCPR), the fundamental right of a citizen under Article 21 and it’s also the basis of the principle of natural justice, at least one opportunity should be provided to the aggrieved person to appeal against the conviction. Thus, on 12th September, 2020 Contemnor No.1 filed the writ petition before the Supreme Court and prayed for giving directions to declare that when Supreme Court is hearing and deciding the matter at the first instance and is not acting as an appellate court, then the person convicted by the Supreme Court, has a right to an intra-Court appeal to be heard by a larger and different bench. He supported his viewpoint by quoting the maxim “Nemo potestesse simul actor et judex” which means- No one can be a suitor and a judge at the same time. Thereby he meant that there is a need for an intra-court appeal as it is provided by section 19 of the Contempt of Court Act, 1971 against the orders and decisions of the High Court.

Conclusion

The contempt power in a democracy is only to enable the court to function effectively, and not to protect the self-esteem of an individual judge. The foundation of the judiciary is based on the trust and the confidence of the people in its ability to deliver fearless and impartial justice. The Constitutional bench of Hon’ble Supreme Court in the case of contempt against former Madras High Judge C.S.Karnan also said that “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.”

References

1. Suo Motu Contempt Petition (Crl.) no. 1 of 2020 against Adv. Prashant Bhushan & Anr.
2. Reply filed by Adv. Prashant Bhushan to the contempt notice issued by the Supreme Court of India.

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