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CASE ANALYSIS ON ‘IN RE. PRASHANT BHUSHAN AND ANR.’

BY Mr. Vignesh Baskaran

1.INTRODUCTION

The Supreme Court on 14th August 2020, have held that the tweets of the civil rights lawyer Prashant Bhushan amount to Criminal Contempt as it scandalises and lowers the authority of the Supreme Court[i]. The Supreme court have often been criticized for the delay in rendering justice, but this case is different as the SC have acted in a speedy manner to render justice. Whether the Supreme Court has really done justice? is another question. The Constitution as a Grundnorm provides for the establishment of the various organs of the government. Indeed, SC is the Protector of the Fundamental Rights of the Citizens and also final interpreter of the Constitution. In recent times the Apex Court has become highly intolerant towards the criticism; however, it is essence of the democratic Government to have a tolerant attitude towards the fair criticisms.

The case was relating to two tweets:

Firstly, “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!”

Secondly, “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.”

The petition was filed by Mahek Maheshwari bringing to the attention of the SC about the tweet made by Parashant Bhushan praying to initiate a criminal contempt proceedings against him.


2.OVERVIEW OF THE CONTEMPT OF COURTS ACT, 1971

Section 2 is the definition clause defining “contempt of court”, “civil contempt’, “criminal contempt’; “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court[ii]. “criminal contempt” means 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

(i)scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner[iii].

Sections 3 to 5 deal with innocent publication, fair and accurate reporting of judicial proceedings and fair criticism of judicial act, which do not amount to contempt. Sections 10 and 11 deal with the powers of the High Court to punish for contempt. Section 12 provides for the punishment. Section 13 provides that no court should impose a sentence under the Act for contempt unless it is satisfied that the contempt is of such a nature that it substantially interferes or tends to substantially interfere with the due course of justice. It also provides that truth can be permitted to be raised as a valid defence if the court is satisfied that the defence has been raised in the public interest and is a bona fide defence. Section 14 deals with the powers of the Supreme Court or the High Courts to deal with contempt in the face of the Court. Section 15 deals with cognizance of the criminal contempt other than contempt in the face of the Court. Section 17 lays down the procedure after cognizance.


3. CONTENTIONS BY PRASHANT BHUSHAN

(1) Article 129 of the Constitution provides for the power of the SC to punish for its own contempt. Article 142(2) of the Constitution however states that the exercise of such powers shall be subject to any law made by the parliament. Section 15 of the Contempt of Courts Act states that the cognizance of criminal contempt can be taken by its own motion or motion moved by Advocate General or any other person with the consent of the Advocate general. Also the Rules to Regulate the Contempt of the Supreme Court, 1975 framed by the SC based on the power under Section 23 of the Act states that the court may take action for criminal contempt on

(i) suo moto

(ii) on a petition made by the Attorney General or Solicitor General or

(iii) on a petition by any person with the consent in writing of the Attorney General or Solicitor General[iv].

However, in the instant case the petition was moved by Maheshwari but no consent was sought from the Attorney General or Solicitor General.

(2) In the case of Brahma Prakash Sharma and Ors., v. State of U.P[v]and Barandakanta Misra v. the Registrar of the Orissa HC and Anr.[vi], the court held that when proceedings in contempt are taken for vilification of the judge, the question which the court has to ask is whether the vilification is of the judge as a judge or it is the vilification of the judge as an individual. 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. It is submitted, that however, in the former case, the Court will proceed to exercise the jurisdiction with scrupulous care and in cases which are clear and beyond reasonable doubt. It was submitted, 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.

(3) He contended that the Tweets were made merely on the exercise of the Freedom of Speech and Expression under Article 19(1) (a) of the constitution which is an essence of the Constitution. He 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. And Insofar as the second tweet dated 27.6.2020 is concerned, it was his submission, that the said tweet has three distinct elements, each of which is his bona fide 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. It was submitted, that the first part of the tweet contains his considered opinion, that democracy has been substantially destroyed in India during the last six years. The second part is his opinion, that the Supreme Court has played a substantial role in allowing the destruction of the democracy and the third part is his opinion regarding the role of the last 4 Chief Justices in particular in allowing it. It is his submission, that such an expression of opinion, however outspoken, disagreeable or however unpalatable to some, cannot constitute contempt of court. It is his contention, 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. He also contended that CJI is not the SC and thus he cannot be punished for Contempt.

4.DECISION OF THE SUPREME COURT

The Supreme Court rejected the first contention and held that it is the inherent power of the Supreme Court to punish for its contempt and it does not need Consent of any person. And with respect to 2nd Contention the SC held that the Punishment for contempt is provided in order to restore the confidence of judiciary in a society governed by rule of law. It is necessary to prevent gross abuse of courts to render public justice. And with regard to the 3rd contention the court rejected the 3rd contention and stated that the criticism is not a fair criticism and it is not in the public interest. The tweets were held to constitute scandalising of the authority of the court and bringing disrepute to the judiciary. The court referred to Rex v. Almon[vii] and held that “authority of the Court is used to express both the right of declaring the law, which is properly called jurisdiction, and of enforcing obedience to it, in which sense it is equivalent to the word power: but by the word ‘authority’, I do not mean that coercive power of the Judges, but the deference and respect which is paid to them and their acts, from an opinion of their justice and integrity”. It further held that the tweets were not relating to CJI as an individual, it was criticising him as a Master of Roaster which thus criticizes his capacity as a judge in the Administration of Justice. The court found Mr. Prashant Bhushan guilty for Criminal Contempt for scandalising the authority of the court.

5. ANALYSIS OF THE DECISION

In Re Mulgoakar[viii] and in Barandakanta Misra v. the Registrar of the Orissa HC and Anr.[ix], it was held that in order to punish a person for criminal contempt for scandalising the authority of the Court there are two essentials to be satisfied (i) there must be Vilification of the Judge in the capacity of the judge and (ii) the degree of harm caused should be affecting the administration of Justice which is also laid down under Section 13 of the Act of 1971. In the Instant case Mr. Prashant Bhushan have made the tweets in an anguish against the CJI as an individual and not as an authority of law. The court have failed to properly differentiate between the CJI as an individual and as a Judge involving in the administration of justice.

In a democratic set up the institution are subjected to fair criticism which includes the Judiciary, this was even held by the Supreme Court in D.C. Saxena v. Hon’ble CJI[x], Supreme Court Bar Assn. v. Union of India and Anr.[xi] and In Re. Arunthati Roy[xii]. The SC in the Aruthathi Roy case recognized the Fair criticism as a defence under Section 5 of the Act of 1971. However, in the recent times, the judiciary have created an intolerant attitude towards the criticisms against it. In order to determine the fair criticism, the Court has to look into the surrounding circumstances which led to the criticism[xiii]. In the instant case the criticism was raised because the SC was closed for the Physical appearing and there was no proper management of cases in video conferencing. Thus, the surrounding circumstances have led to the anguish for the civil rights lawyer Prashant Bhushan to publish the tweet.

Another important question that arises now is whether there is need to continue Scandalising as a criminal contempt? The scandalising as a contempt was derived from England which itself have abolished the Scandalising as a contempt under Section 33 of Crimes and Courts Act, 2013 and U.S have also taken away the scandalising as a contempt as it intrudes the freedom of speech and press under 1st Amendment of the U.S Constitution. It is necessary to relook the provision under the Indian Contempt of Courts Act, 1971.


[i] In Re Prashant Bhushan and Anr, Suo Moto Contempt petition (Crl.) No.1 of 2020 (India).[ii] Section 2(b), Contempt of Courts Act, 1971. [iii] Section 2(c), Ibid. [iv] Rule 3, Rules to Regulate the Contempt of the Supreme Court, 1975. [v] Brahma Prakash Sharma and Ors., v. State of U.P, 1953 S.C.R. 1169 (India). [vi] Barandakanta Misra v. the Registrar of the Orissa HC and Anr., (1974) 1 S.C.C. 374 (India). [vii] Rex v. Almon, 1765 Wilmot’s Notes of Opinions, 243: 97 ER 94. [viii] Re Mulgoakar, A.I.R. 1978 S.C. 727(India). [ix] Supra (vi). [x] D.C. Saxena v. Hon’ble CJI, (1996) 5 S.C.C. 216 (India). [xi] Supreme Court Bar Assn. v. Union of India and Anr., (1998) 4 S.C.C 409 (India). [xii] In Re. Arunthati Roy, (2002) 3 S.C.C 343 (India). [xiii] Ibid.

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