The recent conviction of Advocate Prashant Bhushan by the Apex Court in a contempt case has sparked a huge controversy among activists, academia, and members of the civil society. The judgment came after the Court took suo moto cognizance of two tweets posted by Mr. Bhushan. In this post, we will explore the events surrounding the judgment and the corresponding responses it evoked.
On 22 July 2020, the Supreme Court issued an order to Mr. Bhushan while taking cognizance of the following tweets by Mr. Bhushan,
- “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.”
- “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!”
In light of above tweets, a petition was also filed by Mahek Maheshwari stating that the tweets were malafide and offensive. Following these developments, a bench consisting of Justices Arun Mishra, B.R. Gavai, and Krishna Murari, prima facie, observed that the statements have brought disrepute to the administration of justice. They also said that these tweets undermine the dignity and authority of the Supreme Court and the office of Chief Justice of India in the eyes of the public at large. The Court also asked for a reply from Twitter. The order invoked many criticisms from activists, academicians, former Justices, Advocates, etc., which can be exemplified through the plea by Aruna Roy and 15 others, demanding that they should also be impleaded alongside Mr. Bhushan. However, the writ petition filed by Mr. Bhushan against the Secretary-General of Supreme Court seeking the recall of the said contempt notice and procedural irregularities as to contempt complaint as well as the aforementioned plea by Aruna Roy and others were subsequently rejected by the same Supreme Court bench and the Supreme Court Registry respectively. In a related development, N. Ram, Arun Shourie, and Mr. Bhushan filed a writ petition challenging the constitutionality of Section 2(c)(i) of the Contempt of Courts Act 1971, that includes scandalization of courts in the definition of Contempt of courts. However, later the petition was withdrawn with liberty to present it before an appropriate forum without liberty to move the Apex Court again.
Subsequently, Mr. Bhushan filed an affidavit as a response to the order, mentioning that the tweets were bonafide criticisms of the manner and functioning of the Court, and do not constitute contempt of Court. For the second tweet, the affidavit mentioned that it was made as a bonafide impression of the manner and functioning of the Court. Further, that the comment highlighted his anguish over non-physical functioning of the Court, as a result of which the fundament rights of citizens like those in detention, or destitutes and other facing serious grievances were not being addressed.
It also mentioned that holding and expressing a bonafide opinion on any public institution is not a reasonable restriction on the fundamental right to free speech. Parallelly, a contempt case against Mr. Bhushan initiated by Advocate Harish Salve in 2009 was also called upon for hearing after 11 years. The petition was related to comments made by Mr. Bhushan about corruption in the judiciary in an interview to Tehelka magazine. However, this was subsequently adjourned to 10 September, 2020 for hearing before another bench.
After hearings dated 5 August, the Supreme Court after hearing both the parties based on the affidavit reserved its orders on the present contempt case. Mr. Bhushan also filed an application under Section 17(5) of the Contempt of Courts Act, 1971 which allows the applicant to lead further evidence as may be necessary. Subsequently, however, the Apex Court, in its judgment dated 14th August, held Mr. Bhushan guilty of contempt of Court.
With regards to the role of Twitter, the judgement pronounced on 14 August, accepted the explanation that the platform was an intermediary and that it did not have any control on what users post on the platform. The judgement also acknowledged the bona fides of the platform company in suspension of both tweets after the cognizance was taken by the court.
2. The rationale of the Conviction
Section 2(c)(i) of the Contempt of Courts Act, 1971 defines ‘criminal contempt’ as the publication of any matter by words, signs, etc., that “scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court.” With regard to the first tweet, the Apex Court emphatically observed that it conveys that the judges who have presided in the Apex Court in the last six years have a role in the destruction of Indian democracy, and the last four CJIs had a particular role in that. Thus, it was observed, that it tends to shake the confidence of the public in the judiciary. The Court reiterated in ascertaining bonafide faith and public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge and his intended purpose. Hence, the Court observed that the contemnor has undoubtedly scandalized the institution of the Supreme Court. The Court relied on C. K. Daphtary & Ors. v. O. P. Gupta & Ors to say that a scurrilous attack on a judge in respect of a judgment or past conduct has an adverse effect on the due administration of justice. It also relied on Brahma Prakash Sharma And Ors. v. The State of Uttar Pradesh to say that a publication which attacks individual judges or the court as a whole with or without reference to particular case, casting unwarranted and defamatory aspersions upon the character or ability of the judges, would come within the term of scandalizing the Court.
The Supreme Court, while dealing with second tweet regarding CJI riding a motorcycle, relied on Baradakanta Mishra v. The Registrar of Orissa High Court, to say that scandalizing the Court, may be a consequence of vilification of the judge. But the question remains whether the vilification of the judge is as a judge, or as an individual. This is to say that, if vilification of judge was as an individual, then he or she is left to his own personal remedies, and the Court would have no power to punish the person who commented for contempt. The Court held that the latter part of the second tweet – “at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice” is a criticism of the CJI in his capacity of being the Chief Justice of India, that is, the administrative head of the judiciary. And thus, it was held that the statement is scandalous and malicious as it is false to the knowledge of Mr. Bhushan himself.
3. After the Judgement
The Court decided to hold hearing on the sentence on 20 August, however, Mr. Bhushan moved an application seeking a deferment of hearing for sentence on 20 August on the grounds that he intended to file a review plea for the judgement. On 20 August, the Supreme Court’s hearing on the question of sentence, saw a statement read by Mr. Bhushan defending the tweets over which he was convicted. Among other things, the statement reiterated his bonafide intentions in making those comments and that he would submit to any penalty that is lawfully inflicted on him. The Supreme Court in its order, however, refused to defer hearings as asked in the application by Mr. Bhushan that cited his intention to file a review plea and granted Mr. Bhushan two days to submit an unconditional apology, if he so desired. In his response, Mr. Bhushan filed a supplementary statement on August 24, through which he refused to present an apology while mentioning that it is a duty of every officer of this Court to speak up when one believes that there is a deviation in the sterling record of Supreme Court. On subsequent hearings on 25 August, Attorney General of India KK Venugopal urged the Apex Court to pardon Mr. Bhushan. Later, however, the Court reserved its order.
On 31 August 2020, the Apex Court in its judgment provided that the act of the contemnor was a serious one, as he had attempted to denigrate the reputation of the institution of administration of justice and no defense of truth as justification could condone its severity. Nevertheless, the Court deemed it fit to impose a fine of Re. 1, failing which the contemnor would undergo simple imprisonment for a period of three months and be debarred from practicing in the court for a period of three years.
The judgment has undoubtedly come as a surprise. It is also pertinent to mention that the events surrounding the final judgment as well as the responses they invoked from various members of the citizenry make it more relevant for us dwell on its implications and repercussions that will substantially impact the future of contempt law in the country.