This article is written by Shristi Roongta, from Amity Law School, Kolkata. This article discusses the contempt case of Mr.Prashant Bhushan and the orders of the Court.

Introduction

On 14th August 2020, the Supreme Court of India sentenced Advocate, Mr. Prashant Bhushan for criminal contempt for two of his tweets. The contempt case of Prashant Bhushan was in the limelight due to the observations of the Supreme Court. The Court imposed a fine of Re. 1 and failure to do so would have led him to the imprisonment of three months or bar from practising law for three years.

What is contempt of court?

According to section 2 (a) of the Contempt of Court Act, 1971 contempt can be either civil contempt or criminal contempt and which is punishable. Civil contempt means wilful disobedience to any judgment, order, decree, direction, writ or other processes of a court or wilful breach of an undertaking given to a court. Criminal contempt is the publication whether in words, spoken or written, or by signs or by visible representations or otherwise of any matter or the doing of any other act whatsoever which scandalizes or tends to scandalize the authority of any court or interferes or tends to interfere with the due course of judiciary or interferes or obstructs the administration of justice in any manner. 

Under section 12, the punishment for this is simple imprisonment for a term which may extend to six months or with a fine which may extend to two thousand rupees or with both. But the accused may be discharged or the remittance of punishment may be done if the accused seeks an apology from the court. 

Brief facts of the case

• Advocate Prashant Bhushan, on June 29, 2020 tweeted on his Twitter account about the Chief Justice of India, SA Bobde along with a picture of him sitting on a bike. He 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.”
• Just two days before this tweet i.e on June 27, 2020 he had tweeted about the former CJIs. He said that “When historians in the 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.”
• Mahek Maheswari represented by Advocate Anuj Saxena filed a petition against Prashant Bhushan and Twitter India on July 2. She requested the court to initiate contempt of court proceedings against Bhushan for his tweets, alleging that it ‘inspired a feeling of no-confidence’ in the independence of the judiciary and also amounted to ‘scandalizing the court.’
• The Supreme Court took suo moto cognizance and initiated contempt proceedings.
• During the proceedings, Prashant Bhushan clarified that the initial tweet was made  to precise his anguish on the incongruity between CJI’s reckless attitude in riding a motorcycle without wearing a mask while at an equivalent time restraining the Supreme Court from functioning physically and hearing cases during the lockdown period due to Covid-19 pandemic. He also submitted that the proceedings of contempt was to stifle free speech and violative of Article 19(1)(a) of the Constitution of India. For his second tweet, he argued that it had been a bonafide expression of his opinion of the Court’s and past four CJI’s role in impairing democratic ideals within the last six years which cannot constitute contempt as a protected freedom under the Constitution of India.
• As per the well-settled conventions of the Supreme Court of India, the CJI is considered as a ‘Master of the Roaster’, who has the privilege to assign cases to the judges within the past, the exercise of this authority has increasingly been called into question. Alongside its use by the CJI’s to permit the spread of authoritarianism, majoritarianism and stifling of dissent within the country. Prashant Bhushan claimed that raising such questions that concern the way in which CJIs conduct themselves in individual capacities does not amount to scandalising the Court itself. Therefore, the tweets cannot be said to interfere with the course of justice or the right administration of law by the Court. ‘To criticize the judge fairly, albeit fiercely is no crime but a necessary right, twice blessed in a democracy’.  

Issues 

The main issue was whether Prashant Bhushan’s tweets on 27 and 29 June 2020 amounted to criminal contempt of court or not.

Judgment 

The Supreme Court observed on 22 July that the proceedings are on the basis of two tweets published on 27 and 29 June 2020. The bench was of prima facie view that the statements made against the Court, undermined the authority of the Institutions of the Court, mainly the Chief Justice in the eyes of the public. When Bhushan filed a writ petition, the court held him guilty of criminal contempt of court and thereafter he filed an application to defer the sentencing hearing on 19 August, the court 20 August issued a brief order seeking Bhushan to apologize unconditionally before August 24. But he filed a supplementary statement on August 24.

The Supreme Court on August 31 fined him Re.1 which he was required to pay before September 15, 2020. On failure to do so, Bhushan would be punished for the imprisonment of three months and debarred from practising law for 3 years. 

Given the widespread debate that ensued following the Supreme Court’s judgment within the sentencing order dated August 31, 2020, the court adjudicated some of the arguments. It declared that scandalising the Supreme Court was an abuse of freedom of speech. While fair criticism was a permissible defence, it had been subject to reasonable restrictions under Article 19(2) on account of public interest. The Court also noted that the criticism of the judiciary is not protected under Article 19(1)(a) of the Constitution of India and amounted to contempt. In cases, where there was a conflict between and maintenance of respect for judicial independence, one could not prevail over the other. 

Precedent case

Prashant Bhushan had paid the fine of Re. 1 to the Supreme Court and he reserved separately the right to file review petitions against his conviction and judgment. In his review petition, he pointed out that the Supreme Court did not slightly indicate during the proceedings that he would be debarred from appearing before the Court. It was inconsistent with the precedent laid down in R.K. Anand v Registrar, Delhi High Court by three-Judge bench. It was held by the Apex Court that it must be clearly stated to the advocate before passing an order of debarring him from appearing in courts and must be told that his alleged conduct is of such a nature that if he is found guilty he will be debarred.

It was also held that this warning must be given during the initial notice of contempt or after the accused is held for criminal contempt guilt before dealing with the question of punishment.

It was submitted by Bhushan that the power and discretion of the judiciary to impose punishment for contempt of court should be strictly according to Section 12 of Contempt of Court Act. However, The Court did not take into account Section 30 of Criminal Procedure Code, 1973 which states and sets an upper limit for a proportion of a sentence in a punishment, in case of default in payment of fine it is imposed. And if the payment of the fine is not made then the imprisonment cannot exceed one-fourth of the term of imprisonment. According to the provision of the Contempt of Court Act, the maximum period of imprisonment is six months and one-fourth of this is 1.5 months imprisonment. But Bhushan was sentenced to three month’s imprisonment in case of default of payment of the fine.

Bhushan also contended that the constitutional protection against double jeopardy in Article 20(2) of the Constitution of India violated and the additional conviction whose facts were not put to the accused specifically led to the violation of the right to a fair trial guaranteed under Article 14 and 21 of the Constitution of India.

According to Prashant Bhushan, the Supreme Court has missed a point that under Article 19(1)(a) a reasonable person could have formed a bonafide opinion about the functioning of the Court, the statements made for the four senior-most judges of the Apex Court and other circumstances. 

Views on the orders of SC

The judgment of the Supreme Court, in this case, was controversial. Justice Mishra’s one of the last judgments before his retirement reveals that the judgments are based on weak foundations and have crucial gaps in reasoning. The weakness of the judgment is due to the omission of the Court’s responsibilities which is present in the role of a ‘pillar of democracy.’

Ignorance of Bhushan’s reply

The court held Bhushan guilty of criminal contempt of court on August 14. On August 5, during the hearing, Dushyant Dave appearing for Prashant Bhushan stated two main points. First, the tweets were made in good faith and were a fair criticism and for this Bhushan had also submitted a long affidavit explaining and citing cases and the provisions of the law which the Court failed to take into consideration. But the Apex court held Bhushan guilty almost ignoring the Affidavit filed in support of his tweets which he made in good faith and fair criticism. Instead, the tweets were held maliciously and scurrilous.

Monopoly over truth

In this case, the Court acted as if they had the monopoly over the truth. The court determines the fairness and truth of criticism by examining all the materials given by the parties. But in this case, the court determined and examined the tweets without considering their defence.

Freedom of Speech and Expression

Article 19(1)(a) guarantees all citizens the right to freedom of speech and expression. It is the ultimate guardian of all the values that are held by the Constitution. This right is restricted under Article 19(2) which provides eight grounds for restriction of freedom of speech and expression, one of them is contempt of court. It is considered a “reasonable restriction” and by using this the court can hold contempt but only to the ais of administration of justice and not shutting the voice who seeks an answer from the court in the errors and omissions made.

Right to Appeal

Article 21 of the Constitution provides every citizen the right to appeal and it is a substantive right but the court itself initiated the contempt proceedings and there was no provision for appeal in the judgment. Altogether there was a review provision but the petition lied before the same bench of the Apex Court.

Scandalising the Court

The Supreme Court is regarded as the most powerful court in the world. The Supreme Court of India not only interprets laws but also takes part in governance, issues directions in a wide range of cases. It is also the highest court of appeal and the guardian of fundamental rights and an organ of governance. The tweets were considered as “scandalizing the court” but the judgment in the present case with irregularities in procedural and strained reasoning appeared to damage the image of Apex Court more than Bhushan’s tweets.

Conclusion 

The power of the Court for contempt is for the administration and effective functioning of the Court and not to protect an individual judge’s self-esteem. After the judgment of the Court, Bhushan had a press conference wherein he mentioned that he would be filing review petitions against the judgments. It is concluded from the above situation that the judgments delivered were much faster as compared to others and the Court would dispose of cases at the same pace just like it did in the case of Prashant Bhushan. 

References 

• Critical analysis of Prashant Bhushan’s contempt of court case https://blog.ipleaders.in/critical-analysis-prashant-bhushans-contempt-court-case/
• Supreme court fines Prashant Bhushan Re. 1 in contempt of court case https://thewire.in/law/prashant-bhushan-supreme-court-contempt-re-1-fine

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