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Prashant Bhushan Contempt Case

INTRODUCTION


This is an analysis of a recent case on contempt of court.

Article 129 of the Indian Constitution says that – “The SC of India shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself.”[1]

The Court of Record can be understood as “a court whereof the acts and judicial proceedings are enrolled for a perpetual memorial and testimony, and which has power to fine and imprison for contempt of its authority”.

  • Articles 129 and 215 of the Constitution of India Incorporate the provision which empowers the Supreme Court (SC) and High Court respectively to punish people for their respective contempt.

  • The Indian Constitution also empowers the SC to punish for its contempt.[2]

However, a fixed definition of the contempt of court per se has nowhere been defined by the Indian Constitution.

According to the Contempt of Courts act 1971, contempt is the offence of showing disrespect to the dignity or authority of a court.

The activities of the contempt are divided into two categories, i.e. civil and criminal.

CIVIL CONTEMPT – is the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.

CRIMINAL CONTEMPT – means the publication of any matter or doing an act which -

i. Scandalizes or lowers the authority of a court

ii. Prejudices or interferes with the due course of a judicial proceeding

iii. Interferes or obstructs the administration of justice in any other manner


BACKGROUND


On June 27, Mr. Bhushan tweeted about an undeclared emergency in the country and the role of the Supreme Court and last four chief justices of India. After 2 days, he tweeted about Chief Justice S A Bobde trying a Harley Davidson super-bike in his hometown Nagpur during the coronavirus outbreak.

Following this, on June 22nd, the SC initiated contempt proceedings against him after taking note of a complaint filed by a lawyer in this regard; notice was issued to him.

SC held Bhushan guilty of criminal contempt for his both tweets 'against the judiciary' on 14th August. On 24th August, he filed a response refusing to apologize to the SC while hearing the argument of point of quantum sentence. Next day, Attorney General K K Venugopal urged SC to let Bhushan free.

Finally, on August 31st, the SC imposed fine of Re 1 on Adv Prashant Bhushan, which was to be paid by September 15; default to it lead to 3-month-jail term along with debarment from practice in the apex court for 3 years.

The Court’s Reaction

The Supreme Court on 14th August held Advocate Prashant Bhushan guilty of criminal contempt of court for two tweets which it said were on “distorted facts”, constituted a “scurrilous/ malicious… attack” on the “entire Supreme Court”, and had the effect of “destabilizing the very foundation” of the judiciary.

The Bench underlined the importance of protecting the faith of citizens in the Supreme Court, and of responding “firmly” to unjustified attacks.

International Commission of Jurists’ Views:

  • For the ICJ, the conviction appears to be inconsistent with international standards on freedom of expression and the role of lawyers.

  • The Universal Declaration of Human Rights: The judgement goes against the general protection of free speech and expression in the Universal Declaration of Human Rights

  • The Declaration was proclaimed by the United Nations General Assembly in 1948. For the first time, fundamental human rights were made universally applicable and protected.

  • It states that ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’

  • The International Covenant on Civil & Political Rights: The judgement is inconsistent with the freedom of expression law guaranteed by the International Covenant on Civil and Political Rights.

  • The ICCPR is a key international human rights treaty, providing a range of protections for civil and political rights.

  • The Covenant compels governments to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.

  • The Covenant was adopted by the UN General Assembly in 1966 and came into force in 1976. 173 countries including India have ratified the Covenant.

  • The United Nations’ Basic Principles on the Role of Lawyers: The judgement goes against the principles enshrined under the UN Basic Principles on the Role of Lawyers.

  • Principle 23 states that Lawyers “shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights”.

  • These Principles were adopted by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Cuba in 1990.

  • The Bar Association of India highlights that “the exercise of contempt jurisdiction by the Court in this manner has potential for more self-harm than the avowed purpose of safeguarding the prestige of the institution”.

PANDIT TAHAKUR DAS BHARGAVA IN THE CONSTITUENT ASSEMBLY SAID THAT [3] –

“Powers to reprimand contempt concerned only actions such as the disobedience of an order or direction of a court, which were already punishable infractions. Speech in criticism of the courts, he argued, ought not to be considered as contumacious, for it would simply open up the possibility of gross judicial abuse of such powers.”

Baradakanta v Registrar, Orissa High court [4]

In the above case it was held that -“The ignition of contempt action should be substantial and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.”


A SUO MOTO POWER – Dr. D.C. Saxena vs Hon’ble The Chief Justice of India [5]

Court held that for that for the exercise of its contempt power the court need not to be approached by any person it can also exercise its power on its own.


ANALYSIS


Expressing “dismay” over the conviction of Prashant Bhushan by the SC in a contempt of court case, over 1500 lawyers from across the country, including senior members of the Bar, urged the top court Monday to “take corrective steps to prevent miscarriage of justice [6] ”.

Suggestions -

  • The test for contempt needs to be evaluated (as the term is undefined yet)

  • In contemporary times, it is more important that courts are seen to be concerned about accountability rather than threats of contempt action, and processes are transparent.

  • On criminal contempt, India can learn from Britain which abolished the offence of scandalizing the judiciary as a form of contempt of court in 2013.

  • The Law Commission of India held that there is a need to retain the provision regarding the contempt of courts. However, it also recommended the definition of contempt in the Contempt of Court Act should be restricted to civil contempt, i.e., willful disobedience of judgments of the court.

The pending matters that were decided not to be dealt during the lock down due to the current crisis of pandemic and were postponed.

- Challenges to article 370

- Electoral bonds

- Citizen amendment act and

- Habeas corpus petitions

- FR of the people of Kashmir

But the above mentioned case seemed to have much substantial value that it was immediately been dealt amid the current situation.


CONCLUSION


The penalty may or may not be mild, but its effect is quite grave. In imposing a nominal fine of one rupee on advocate Prashant Bhushan [7] as punishment for the criminal contempt of court, or asking him to serve a three-month simple prison term and be debarred for three years from legal practice, the Supreme Court has bared its own dark, intolerant side. The irony lies that, this was in response to tweets that contained criticism of the current CJI and some of his predecessors, diminishes the Court’s stature much more than the upstanding lawyer’s tweets that contained insinuations and opinions that the judiciary found unpalatable.


During the hearing on sentencing, it appeared that the Bench was looking for a way out by seeking an apology so that the whole issue could be resolved [8]. However, Mr. Bhushan was in refused to oblige, placing his bona fides and conscience above the need to give a face-saving option to the Court to close the case. He also made it clear that he did not intent to defame, it was just his views that he kept on the table, exercising his right to freedom of speech and expression. The tweets were to be considered as bona fide expression of criticism aimed at improving the institution’s stature [9].


The 82-page sentencing verdict , much found Mr. Bhushan guilty, seems to be an avenge to restore reputation of individual judges that the Court is seeking to protect, but the standing of the institution in the eyes of the public, whose faith and trust are necessary for its sustenance. The sentences said by Mr. Bhushan were misunderstood as insult rather than the criticism. If the judiciary’s majesty, dignity and trustworthiness were indeed the values at stake, it would have been far more advisable for the Court not to have taken up this matter on its own motion.

However, this is fairly obvious that someone cannot be found guilty of contempt without giving him an opportunity to explain his view that the CJIs of the last six years had contributed to the “destruction of democracy”. This proceeding was fated to shine a light on the Court’s conduct rather than on the actions of the contemnor. In the ultimate analysis, it is not a verdict that expels Mr. Bhushan of any contempt. Rather, it comes across as an unfair, but inevitable punishment for his refusal to apologize or express regret for his opinions on the conduct of the judiciary in recent time.


REFERENCES


[1] The Constitution of India, 1950, Art. 129.

[2] The Constitution of India, 1950, Art. 142.


[3] https://www.thehindu.com/opinion/lead/The-basics-for-free-speech/article14026849.ece


[4] Baradakanta Mishra vs The Registrar Of Orissa High Court, 1974 AIR 710, 1974 SCR (2) 282 [5] Dr. D.C. Saxena vs Hon'Ble The Chief Justice Of India, 19 July, 1997

[6] https://indianexpress.com/article/india/1500-lawyers-to-sc-stop-miscarriage-of-justice-in-bhushan-case-6559043


[7] https://www.thehindu.com/news/national/pay-re-1-fine-by-september-15-or-face-simple-imprisonment-for-3-months-supreme-court-to-prashant-bhushan/article32484970.ece


[8] https://www.thehindu.com/news/national/is-it-a-sin-to-apologise-supreme-court-asks-prashant-bhushan/article32438173.ece

[9] https://www.thehindu.com/news/national/pained-because-i-have-been-grossly-misunderstood-says-prashant-bhushan/article32401525.ece

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