Critical Analysis: In re: Prashant Bhushan & Anr. (2020)

Introduction

The Analysis of the Case of In Re Prashant Bhushan is made to determine the role of the Court in analysing the comments made by Prashant Bhushan in penalizing him for Contempt. Article 19(1) (a) of the Constitution of India[1] enumerates that all citizens have the right to freedom of speech and expression. This means the right to express one’s own convictions and opinions freely be it verbally or by writing, printing, pictures or any other mode. However, on many occasions, it is observed that freedom of speech and expression is limitless. People perceive it to be their right to be able to say and believe anything. Fortunately or unfortunately, that is not the case.

Much like the other fundamental rights enshrined under Part III of the Constitution of India, the right to freedom of speech and expression is subject to certain reasonable restrictions. Restrictions that may be put on the right to freedom of speech & expression are the interest of the sovereignty, integrity and security of India, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement of offence.[2]

Citizens of India are at liberty to exercise their fundamental right to freedom of speech and expression subject to the abovementioned restrictions. One of the restrictions which we are going to discuss is restriction on the name of Contempt of Court.[3]

Definition of Criminal Contempt

Section 2(c) of Contempt of Court of 1971 defines criminal contempt as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.[4]

Citation:- Suo Motu Contempt Petition (CRL.) NO.1 OF 2020.

Judges:- Justice Arun Mishra, Justice B. R Gavai, Justice Krishna Murari

Facts

The most recent contempt of court case in India is the Prashant Bhushan contempt case.¹ A petition was filed by Mahek Maheshwari bringing to the notice of the Court, a tweet made by Mr. Prashant Bhushan, Advocate, and praying therein to initiate contempt proceedings against the alleged contemnors for willfully and deliberately using hate/scandalous speech against this Court and entire judicial system.

The Registry placed the said petition on the Administrative side of the Court seeking direction as to whether it should be listed for hearing or not, as the consent of the learned Attorney General for India had not been obtained by the said Shri Maheshwari to file the said petition.

Tweets

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!”
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.”

Issues

1. Whether Petition filed against Prashant Bushan is maintainable or not?
2. Whether the said tweets are entitled to protection under Article 19(1) of the Constitution as a fair criticism of the system, made in good faith in the larger public interest or not.

Maintainability of Case

As the petition filed by Mehak Maheshwari is without the consent of the Attorney General of India. The maintainability of the petition was in question because Section 15 of the Contempt of Act states that in the case of criminal contempt, on a motion made by any person, the consent of the attorney general is mandatory. But under Section 15 of Contempt of Court Act and Article 129 of Constitution Supreme Court or High Court can take action Suo moto Cognizance.

The Court held that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large. The Court took suo motu cognizance of the aforesaid tweet.

Arguments

1. The petitioner contended that insofar as the first tweet is concerned, it was made primarily to underline his anguish at the non-physical functioning of the Supreme Court for the last more than three months, as a result of which fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal.
2. Petitioner also contended that if it is regarded as contempt, it would stifle free speech and would constitute an unreasonable restriction on the right of a citizen under Article l9 (1) (a) of the Constitution.
3. Insofar as the second tweet is concerned, he contended that the said tweet has three distinct elements, each of which is his bonafide opinion about the state of affairs in the country in the past six years and the role of the Supreme Court and in particular the role of the last 4 CJIs.
4. That democracy has been substantially destroyed in India during the last six years.
5. That the Supreme Court has played a substantial role in allowing the destruction of the democracy
6. The role of the last 4 Chief Justices in particular in allowing it.
7. That it is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution.
8. It is submitted that for a bona fide critique the actions of a CJI, or a succession of CJIs, cannot and does not scandalise the court, nor does it lower the authority of the Court.
9. Relying on the Constitution Bench judgment of this Court in the case of Baradakanta Mishra v. Registrar of Orissa High Court & Another[5] if the vilification of the judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt. In the present case, the vilification, if any, is against the CJI as an individual and not as a CJI of the Supreme Court and as such, the proceedings of the Court would not be tenable.

Judgment

The court observed that the first part of the first tweet (‘CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet’) was a personal criticism against the CJI as an individual, therefore it is not Contempt.

However, the second part of the first tweet (‘at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice’) was an ‘undisputed’ attack on CJI in his capacity as the administrative head of the judiciary.

The Supreme Court is in lockdown is factually incorrect even to the knowledge of the Prashant Bushan. On account of the COVID-19 pandemic, the physical functioning of the Court was required to be suspended. This was in order to avoid mass gathering in the Supreme Court and to prevent the outbreak of a pandemic. However, immediately after suspension of physical hearing, the Court started functioning through video conferencing. Therefore the statement is undoubtedly false, malicious and scandalous and is Contempt.

In the case of Arundhati Roy, in Re[6], this Court held, fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in the public interest.

To ascertain good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself.

On the second tweet, the Court made three observations.

1. Prashant Bhushan’s comment that the Supreme Court had played a substantial role in allowing the destruction of democracy and the role of past four CJIs in perpetuating it was a direct criticism of the institution of the Supreme Court and the institution of CJI.^[7]
2. Given the huge extent of the reach of the tweet and the character of the contemnor (who is a lawyer himself), the Court concluded that Prashant Bhushan behaved irresponsibly and thus, the tweets were not eligible for good faith protection.
3. it was also not a fair criticism of the functioning of the judiciary made in bona fide in the public interest, rendering it ineligible for protection under the Article 19(1) freedom of expression rule.

As observed by Justice Krishna Iyer in the case of Re: S. Mulgaokar[8], if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.

Conclusion

We may conclude by stating that the court did not analyse the legitimacy of the comments made by Prashant Bhushan. In the case of comments made by law minister Ravi Shankar, the court did not take cognizance of the matter, stating that it was his personal opinion and was not scandalizing the court.

The court in case was not hypersensitive and followed the guidelines given by Justice Krishna Iyer. I agree with the court’s decision on the part where it distinguished contempt, defamation and personal opinion.

This judgment lacks the idea as to when a comment amounts to contempt or constructive criticism, citizens freedom of speech and expression will be diluted.

The biggest lacunae in the Judgement is the lack of analysis of the second tweet. It has been upheld in numerous cases that contempt cannot be determined in the strict sense because strict rule application curbs the freedom of speech and expression of citizens of India.

The time has come to make changes to contempt legislations in India, being in an era where social media is playing a bigger role. Constructive criticism is as important as Judicial Independence. The court is the place where people seek justice, lack of accountability and interference make the system autonomous, which leads to obstruction of justice.

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[1] Constitution of India Act 1950

[2] Jajati Keshari Samantasinghar, CONTEMPT OF COURT AS DEFINED IN CONTEMPT OF COURTS ACT 1971, 3 JOURNAL OF ADVANCE RESEARCH IN SOCIAL SCIENCE AND HUMANITIES, 1-8 (2017).

[3] Elisha Hanson, Supreme Court on Freedom of the Press and Contempt by Publication, 27 Cornell Law Review, 165- 189 (1942).

[4] Contempt of Court Act 1971

[5] (1974) 1 SCC 374

[6] (2002) 3 SCC 343

[7] Para 100

[8] (1978) 3 SCC 339

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