Supreme Court guilty of contempt against Democracy: The right to free and fair criticism against judiciary should not be restrained by the whip of Contempt of Court.
After this whole Contempt of Court episode of famous Supreme Court advocate Prashant Bhushan regarding two of his viral tweets in June and his conviction by the Supreme court for criminal ‘Contempt of Court’ a day just before Independence Day, a question in the form of debate naturally arises as to “Whether the Judiciary itself encroaches upon Right to Freedom of speech and Expression, a Fundamental Right under constitution which it itself is sworn to protect under Art 32 and 226, or not?”. The personal opinion of different person might be different, but the time has come when this question must be looked with the insight of Constitutionalism and the issue must now be tested over the flame of criticism.
Recently, the Supreme Court suo motu registered a contempt of Court case against Senior Supreme Court lawyer Prashant Bhushan. The whole controversy has arisen after two tweets published by Prasant Bhusan on micro blogging site twitter, where he is alleged to have commented on CJI SA Bobade and has also commented on the functioning of Supreme court during last 4 CJIs. The order was passed by a bench comprising Justice Arun Mishra, Justice B.R. Gavai and Justice Krishna Murari. The Court in its decision has regarded the tweets as Prima facie contempt against the court. Court has also remarked the tweet related to CJI, wherein he can be seen as riding an expensive bike, that it is a comment on CJI in his official capacity and not in his personal capacity.
The office of CJI is indeed an office of dignity, but at the same time is not that fragile to be straggled by a light comment showing genuine concern over its functioning. After 7 decades of establishment of Indian Democracy, “are we still not able to face the criticism?” is a question to be ponder upon. Criticism is an integral part of democracy. And as a democratic institution, are our courts so fragile before such comment that it had to take the recourse of ultimate punitive measures like Contempt proceeding? Note that, in a similar case of Contempt against renowned writer Arundhati Roy, in 2002, in his famous observation Justice Bharucha has said that the shoulders of the court were broad enough to shrug off certain comments.
When it comes to Contempt proceedings, Famous British Judge Lord Templeman is often quoted in many countries. In a case where a newspaper named ‘Daily Mirror’ published articles in which it called British judges as “old fools”, many wondered why the court did not initiate contempt proceedings. Noted constitutional expert Fali S Nariman was in England at that time. He asked Lord Templeman the same question, Lord Templeman handled the situation wisely and open mindedly, as he should have been and as Indian judiciary should also have, He said that he is indeed old but whether he is a fool or not is a matter of perception and that in England Judges do not take notice of personal insults.
On one hand where the image and repute of the courts is of utmost importance for protecting the sanctity and independence of the justice delivery system, on the contrary, the rights and freedoms of individuals are no less important in a democratic setup. Also, at the same time, Section 13 of the Contempt of Courts Act, 1971 clearly limits and lays down a circumference within which the courts should act. It states, “Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.” Whether such a comment by Mr. Bhusan substantially interferes or tends to interferes with the due course of justice, is open for discussion to everyone in the legal fraternity but in the view of author, such criticism is nothing but a comment of fair criticism over the functioning and should have been taken in that way by the court, as was done earlier in many cases by hon’ble judges.
The SC has also brought up a contempt case registered against Bhushan more than a decade ago in 2009 for hearing in August. The Lawyer was accused for his statements made to a magazine, wherein he has alleged corruption among former chief justices.
The reactions of Newspapers on this controversy were mostly critical. In different words they showed their concern against this judgement. An editorial of famous Newspaper Indian Express noted that “Noting that trust and faith cannot be imposed through coercion or through an “antiquated law”.” the Indian Express asserted that the “Contempt of Courts Act, 1971, does not belong in a country celebrating its 74th Independence Day”. The court’s power of contempt in the constitution needs to be reconciled with the “constitutional values of free and fair criticism”. “And that balancing, that harmonisation, has to be done by the court, keeping in mind the nature of the new public square where hyperbole, exaggeration, even the cheap shot, may need protection for the truth to emerge,” said the Indian Express editorial. Another famous newspaper Hindustan Times published an editorial, titled “The SC must introspect”. While in the editorial of Times of India, published on Saturday, they felt that the judgment “could constrain the space for bona fide criticism of the judiciary”. The TNIE editorial noted that SC was not “an institution whose image can be lowered by a few tweets or comments by any individual, irrespective of their standing”.
In support of Advocate Prashant Bhushan, about 131 people, including Layers, Authors, retired judges, ex civil servants, has signed a solidarity statement stating that this is an attempt to stifle criticism of the judiciary. As mentioned in that statement “Mr Bhushan has been a relentless crusader for the rights of the weakest sections of our society and has spent his career in pro bono legal service to those who do not have ready access to justice.” Some of famous faces among signatories are Justice GS Singhvi, Justice Ruma Pal, Justice Aftab Alam, Justice Ashok K Ganguly, Justice Jasti Chelameswar, Justice Gopala Gowda, Justice Aftab Alam, Justice Anjana Prakash and Justice Vikramjit Sen.
In its debates, the Constituent Assembly has also reflected its deep anxiety over vesting in the court contempt powers that could limit free speech. The debate though was surprisingly not during discussion of contempt as under Art 129 but during the discussion of restrictions under Art 19 (then Art 13 in the draft constitution). Many showed their concern over the assumption that judges will always use the powers with utmost caution. After this, During the last 71 years of Constitution, the laws related to contempt of court law has been dealt in a range of interpretations by the Supreme Court. Despite this, the underlying concern remains the same i.e. the contempt law provides sweeping discretionary powers to the judges to rule on what they perceive as contempt against themselves. This practice should be tested on the flame of reasonableness as well as Natural Law principles. The Suo moto cognizance by the courts in the contempt against themselves is a sheer non-adherence of the principle of Natural Justice, i.e. nemo judex in sua causa, which means no one can be a judge in his own case. In the contempt cases, the Judges decides, whether someone has spoken or done evil against themselves or not. The practice of “Caesar's wife must be above suspicion” should always prevail.
Although the basic idea behind contempt of court was to punish those not abiding the orders of the court. It was initially a whip in the hands of Judiciary to enforce its decisions on individuals. In India though, it was shaped under two heads viz. Civil Contempt and Criminal contempt. The difference lies in the passive and active conduct of the accused. 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; whereas, 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;.
In the present form as it exists, criticism of judges by questioning their functioning is also seen to be considered contempt. And in the cases of contempt, the courts, especially the Supreme Court and the High Courts, have sweeping discretionary powers. The reason behind such discretionary power is that these courts derive their powers and authority from Constitution. Although there is a Contempt of Courts Act to deal with Contempt case’s proceedings but SC do not feel very bound to it because of its contempt powers are provided by the constitution under Art 129.
Art 129 reads as; The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
The argument in favour of the contempt Laws believes it as a requirement by Courts to ensure that their orders are implemented. They argue it as important to sustain the independent nature of the judiciary itself. If the courts are unable to enforce their orders, then the rule of law itself will not prevail. Author believes, such argument itself lack ground on its face. Such a device might be a need of nurturing democracy, but in the case of strong established Democracy like India, we do not need one.
In the 7 decades old established democracy of India, such criticism should be dealt with open heart. It is nothing but criticism which builds a democracy strong. The laws of Contempt must be revised and the tools must be inserted in it to prevent its misuse by the hands of the sacrosanct Judiciary. To prevail rule of law, the arbitrariness, even by the judiciary must be criticised and condemned. Humans as a product of nature are prone to err and even your Lordships are not free from human emotions like anger, envy, prejudice etc. Contempt is whip if left uncontrolled in the hands of any institution, it can, one day, wound the face of democracy very badly. And on that day, it would be nearly illogical to look back at the past and think if what could have been done then.
References: Prachi Bhardwaj, Prashant Bhushan’s tweets not “fair criticism” of judiciary; SC finds him guilty of criminal contempt [Detailed Report], SccOnline, (Mar. 16, 2020, 07:00PM), https://www.scconline.com/blog/?p=233967.  Re Prashant Bhushan, SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020.  Re Arundhati Roy, Contempt Petition (crl.) 10 of 2001.  Rakesh Bhatnagar, When a judge is called a fool, DNA, Feb 11, 2007, at https://www.dnaindia.com/india/report-when-a-judge-is-called-a-fool-1079329.  Guilty, I.E., Aug 15, 2020, at https://indianexpress.com/article/opinion/editorials/prashant-bhushan-supreme-court-contempt-case-verdict-6555145/.  The SC must introspect, H.T., Aug 14, 2020 at https://www.hindustantimes.com/editorials/the-sc-must-introspect/story-jFEDAiL10bmFSNRGK6talO.html.  Apex Court’s image cannot be lowered by a few tweets, T.N.I.E., Aug 15, 2020, at https://www.newindianexpress.com/opinions/editorials/2020/aug/15/apex-courts-image-cannot-be-lowered-by-a-few-tweets-2183638.html.  8 More Former SC Judges Show Solidarity With Prashant Bhushan, T.Q., Jul 31, 2020, at https://www.thequint.com/news/india/sc-stifling-flak-ex-judges-slam-contempt-case-against-prashant-bhushan.  Constituent assembly of India debates (proceedings) - volume x, Monday, the 17th October, 1949, (Aug 15, 2020, 10:00PM) http://220.127.116.11/loksabha/writereaddata/cadebatefiles/C17101949.html.  Sec 2 a, The Contempt of Courts Act, 1971.  Sec 2b, The Contempt of Courts Act, 1971.  Sec 2c, The Contempt of Courts Act, 1971.  INDIA CONST. art. 129.  Sruthisagar Yamunan, Concerns about contempt laws came up in the Constituent Assembly – and were never fully addressed, Scroll.in, (Aug 15, 2020, 09:00PM), https://scroll.in/article/968596/concerns-about-contempt-laws-came-up-in-the-constituent-assembly-and-were-never-fully-addressed.
Image Source: Reuters file
An Editorial By: Anupam Kumar