Prashant Bhushan, In re (Contempt Matter), (2021) 1 SCC 745, decided
on 14.08.2020
Anurag Deep, Associate Professor, ILI,
New Delhi
I.
Introduction
The law of contempt is a blend of liberty of individual and responsibility of individuals. It contains the competing idea of restraint of power of the Court and restraint of freedom of the citizen. The contemnor insists that the Courts must restrict their power to punish for contempt in a democracy while the Court insists that the citizen must limit their liberty to speak anything and everything against the Court because “abuse of liberty is not the path to freedom or justice”. (Dias -Jurisprudence). It will lead to anarchy. Krishna Iyer, J. in the case of In Re: S. Mulgaokar (1978) 3 SCC 339 has designed the contempt law as an "accommodation of two constitutional values-the right of free speech and the right to independent justice." Iyer, J. can be further interpreted. A1 has the fundamental right to freedom of expression by virtue of which he can severely criticise the court. Likewise A2 whose case is pending before a court has right to get 'independent justice', which is unbiased, delivered without any fear or compulsion. If the expression of A1 interferes in the course of justice or shrinks the confidence in judiciary, the right to justice to A2 cannot be said to be independent.
II.FACTS
The facts of Prashant
Bhushan contempt case is that the accused, a well-known advocate, posted the following tweets in June 2020 :
Tweet
1-“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!”
Tweet
2-“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.”
III. ISSUES
The Contempt of Court Act,
1971 provides certain grounds of insult or defamation of court. One is
“scandalising or lowering the authority of the court".
a) The issue
before the Court was whether these tweets were covered under the provision
"scandalising or lowering the authority of the court” or should the
judiciary “be willing to ignore, by a majestic liberalism” such tweets even though
they are in bad taste, inappropriate and couched in irresponsible words? Was
the tweet a legitimate exercise of freedom of speech and expression under
article 19 or was it in violation of reasonable restrictions provided under
article 19(2)? Did the tweet underline the genuine concern of a common citizen
or did it undermine the integrity of judges? The Court held that the tweets
amounted to contempt of court.
There were other
issues
(b) Maintainability-
the contempt petition was filed by Advocate Maheshwari but the Supreme Court treated it as suo motu. Is it permissible under the Contempt of
Court Act, 1971? It was a question on maintainability of petition. The Court
held that the powers of the Supreme Court to initiate contempt are not in any manner
limited by the provisions of the Act of 1971. This Court is vested with the
constitutional powers under article 129 and 142(2) to deal with the
contempt.
(c) Liability of social media-Can the social media platform “twitter” which is an intermediary, be proceeded against for the tweet and will the "safe harbour" clause under section 79 of Information technology Act, 2000 provides a defence? Safe harbour is a legal provision by which a party can get exemption from liability under certain circumstances. Like the take due diligence, due cognizance of the such disputed matters and take necessary steps. Twitter informed that it has "blocked the access to the said tweets and disabled the same" within a couple of days. The Court accepted the defence of twitter and discharged the notice issued to twitter.
IV. The
Judgement
On the issue of contempt, the Court referred Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457 where it was observed that
"fair criticism is based on the authentic and acceptable material permissible but when criticism tends to create apprehension in the minds of the people regarding integrity, ability and fairness of the Judge, it amounts to contempt. Such criticism is not protected under article 19(1)(a) of the Constitution.”
While examining the first tweet, (which claimed that the CJI kept the Court in
lock down) the Court held that “during the said period, the vacation Benches of
the Court were regularly functioning. the Court has heard 12748 matters. 686
writ petitions filed under Article 32.”
Therefore, it is factually incorrect to say that the Supreme Court was in
lockdown. “In this premise, making such wild allegations thereby giving an
impression, that the CJI is enjoying riding an expensive bike, while he keeps
the SC in lockdown mode and thereby denying citizens their fundamental right to
access justice, is undoubtedly false, malicious and scandalous. It has the
tendency to shake the confidence of the public at large in the institution of
judiciary and the institution of the CJI and undermining the dignity and
authority of the administration of justice.” Advocate Prashant Bhushan was
found guilty for the first tweet. He was also found guilty for the second tweet
which was not on fact but was an opinion. Second tweet is not the subject
matter of this comment because of space restriction.
V. COMMENTS
Whether the
tweet is an opinion or a fact? An opinion gets greater protection than a
statement based on fact. A fact can be true, false or misleading. The truth
provides scope for argumentation. A statement which is factually wrong places
the accused in an extremely defensive position. A statement is said to be
misleading if it provides some part of fact and conceals other parts. If the
concealment is deliberate it amounts to cheating and fraud. If it is not
deliberate, it amounts to misrepresentation. First tweet was factually wrong.
The factual inaccuracy was deliberate. It caused harm to the reputation of the
Supreme Court. The followers of tweet or readers of tweet have the right to
know the correct fact. It was pandemic time. Common persons were in lock down.
There was no occasion to know whether the Court was functioning or not. A
practicing lawyer of the Supreme Court was the best person to act as a carrier
of correct information. In this situation, he owed a responsibility towards his
followers and readers. There was an implied relationship of trust between a
lawyer of his distinction and his readers. A false information amounts to
breach of trust. Part IVA (h) calls upon every citizen “to develop the
scientific temper” for which flow of correct fact is a precondition. His tweet
was also in breach of fundamental duty. The contemnor knew this fact very well
not only because he was a practicing advocate in the Supreme Court but also
because he himself got relief in article 32 case on an urgent basis. He
approached the Supreme Court in the case of Prashant Bhushan v. Jaydev
Rajnikant Joshi on April 30, 2020 during lockdown. His case was listed for
the very next day, ie May 1, 2020 and he got interim relief from the Court.
This establishes that the contemnor has also committed intellectual dishonesty,
cheating and fraud to those who believe in him. It was not only morally inappropriate and unlawful under civil law but also harmful enough to attract criminal sanction.
VI.
CONCLUSION
FREE SPEECH
AND CONTEMPT OF COURT-THREE CATEGORIES
The freedom of speech and
expression against the Court has three classifications.
(a)Those which are criticisms of the court, its functioning and the judgements. They do not risk the
independence of the judiciary. Indeed, criticism of the institutions of State
including judiciary is oxygen for democracy. Disagreement and dissent with the
judiciary is an essential mode of checks and balances in rule of law. The
freedom of expression constitutes an integral part of democracy based on
fearless dialogue, seamless discussion, sharp disagreement and strong dissent.
(See, Manoj K Sinha and Anurag Deep, Law of Sedition in India and Freedom of
Expression, 2018, ILI) Sometimes the dissents are inappropriate, uncalled
for but they can be within legal limits of reasonable restrictions. To
criticise a “judge fairly, albeit fiercely, is no crime but a necessary right,
twice blessed in a democracy.”
(b) Those expressions which
are manifestly inappropriate because the language, time, place and the
contemnor has a particular context. They amount to indirect threat to the
independence of the judiciary. But the Courts exercise restraint and record
warnings. When such expressions are not only misleading but false, they have
potential to break the trust with the judicial system. They are an attempt to
indirectly intimidate the judges. Prashant Bhushan case comes under
this. He is a representing in many cases which is pending in the Supreme Court.
The tweets have a tendency to intimidate judges who were/are unfavourable to
him.
(c) Those expressions which
are a direct threat to the independence of the judiciary. They intimidate the
judges directly. They destroy the rule of law and demonstrate no respect for
democratic institutions as well as constitutional values. It is the domain
of the Court. Justice Karnan case is an illustration of this. The
independence of the judiciary is under threat due to such irresponsible conduct
of a person belonging to an intellect class.
In the case of In Re: S. Mulgaokar, [(1978) 3 SCC 339] Krishna Iyer, J. after warning that contempt jurisdiction ought to be rarely used, rightly observed that in contempt cases
(i) the Court should consider totality of factors,
(ii) the Court must reach a conclusion that the attack on judge or judiciary is scurrilous, offensive, intimidatory or malicious
(iii) it has crossed beyond condonable limits,
(iv) then the Court must “strike a blow on” the contemnor.
Despite this judicial dictum the Court (led by Arun Mishra, J.) has not sent the convicted contemnor to jail and fined him ₹ 1 only. The Court has demonstrated its large heart and generosity.
Free speech
in India is different from the UK because there is no constitutional protection
and limitation. It is not like the USA where free speech is couched in terms of
“absolutism” and there are no express restrictions in the Constitution of the USA except
those developed through a few doctrines like the doctrine of police power. The doctrine of free
speech in India rests on “rights with restrictions” model. In the last decade there has been a growing trend to take protection of free speech after
indulging in vilification of courts. The conviction of Prashant Bhushan should
convey to all such people to “take heed for they will act at their own peril.”
Liberty of free speech should not slip into a license to browbeat an
institution. The judgement on Prashant Bhushan contempt case rejects
superficially attractive arguments of free speech and rightly relies on
substantially enduring rationale based on P5 (principles, provisions,
precedents, policy and professional opinion). It is high time the judicial
institution be preserved and protected from such internal attacks from the
Bar.
[The author acknowledges the editing done by Ms Charvi Kumar, PhD scholar, ILI, New Delhi]
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