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Prashant Bhushan’s Contempt Case: Are the Indian Constitutional Courts prone to dissenting remarks made in Social Media against it?

[This is a post by Minnah Elizabeth Abraham, Contributing Editor]

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.” – Lord Denning

The controversial case of contempt of court law against lawyer-activist Prashant Bhushan reveals much of the stifling unaddressed claims of the judicial systems as opposed to the rightful exercise of the freedom of speech and expression within the judiciary. The case draws a pricking line between exercise of the fundamental right of speech and expression with freedom of judiciary to maintain its credibility in the larger public interest.

Trotting down the facts, the whole issue was provoked when Prashant Bhushan tweeted firstly, on the Chief Justice of India, quoting

“CJI rides a 50 lakhs 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, the controversy ensued when he yet again tweeted

“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.”

Although the Freedom of Speech and Expression in enshrined in Article 19(1)(a) of the Indian Constitution, it is sadly bounded with restrictions under clause 2 of the same Article. In the above controversy, the statements as remarked by Mr Prashant  Bhushan have been claimed to downgrade the Supreme Court of India and judiciary system, attracting the very Contempt of Courts Act, 1971 (“The Act”) calling for his actions as criminal contempt, defined in the 1971 Act, for scandalising remarks against the authority and administration of law. The petitioner’s side (Mr Prashant Bhushan) claims the Act to be unsurprisingly incompatible with the basic structure of Constitution, all the more, perforating the guaranteed freedom of speech expression. However, this is not so, as stated on the other side,

“We are, prima facie, of the view 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 the supreme court in general and the office of the Chief Justice of India in particular, in the eyes of the public at large.”

The legislature does not provide with a concrete definition of contempt – howsoever Section 2(a) of Contempt of Court Act, 1971 defines contempt of court as civil contempt or criminal contempt: “Civil contempt refers to wilful disobedience to any decree, judgement, direction, writ, order or other proceedings of a court or wilful breach of an undertaking given to a court.“

According to Section 2(c) of 1971 Act – Criminal contempt – whether by word, spoken or written or by signs or by visible representation or otherwise – of any matter or doing of any other act whatsoever which –

  1. Scandalizes or tends to scandalize or lowers  the authority of any court or
  2. Interferes/Prejudice or tends to interfere with the due course  of any judicial proceeding
  3. Interferes or tends to interfere with or obstruct or tends to obstruct the administration of justice in any other manner

The impugned section renders power to the judicial authorities to routinely misuse the power to punish those of contempt of court for their misdeeds rather than carry forward their duties to uphold the laws of Justice. As noted, there are a high number of contempt cases – civil (96,993) and criminal (583) pending in various HC and SC. As clearly noted, the said section is ambiguous as it does not draw any distinction between criticisms or remarks made in consonance with freedom of speech with that of scandalization against the Court of Law. By going deeper into the case, it only points out, how both the issues are contrasting starkly against each other, for which there is a need to modify the laws of contempt of court without breaching the fundamental rights. The Court of Law, like every institution of an order, should fall back in welcoming public criticisms to deliver and serve in the interest of the general public.

To stir up further controversy, the 2009 pending case of Sterlite company, where Mr Prashant Bhushan accused the headed judge of having held shares in the said company was deferred to be heard in the next hearing scheduled on August 4th, 2020 joined with the recent controversy.

The cynicism in all of this brought forth, where the views of the same bench were pointed concerned hearing a matter of disqualification proceedings initiated against Sachin Pilot and other involved MLAs of Rajasthan, observing “Voice of dissent in a democracy cannot be shut down”. This same constituted bench responded completely in contrast to the voice of dissent raised against the very Court and used the provisions of Contempt of Court Act, 1971 to shut down the ensuing alleged claims against it, with due disregard for the Constitutional Rights.

As stated rightly by Mr Shekhar Gupta, Editor-in-Chief of The Print, “Politicians run on political capital. Professions run on professional capital…so the Supreme Court’s capital is its own stature. It’s for the court to decide how fragile that stature is.”

Some concluding remarks

If contempt proceedings are going to be instituted against every tweets and remark against Courts of law, there would not be any room for informed public scrutiny, which holds the very purpose of arriving at right delivery of justice, covering all aspect of public concerning matters. Previously, the SC has been considered liberal with contempt proceedings and has set aside the punishment in the case of Chanchal Manohar Singh vs. High Court of Punjab & Haryana due to irregularities of both sides and other past actions have shown that the Courts of Law has subject to have positively drawn in criticisms in public debates and often have taken in consideration of the public remarks.

The case instituted against Mr Prashant Bhushan, especially when the main issue revolves around the freedom of speech and expression, the presiding bench heading the case has to carefully tread on the public’s faith on the judiciary and choose to uphold the dignity of the judiciary by thoroughly inspecting the essentials of the criminal contempt. The ongoing debate lingers on Bhushan case, covering every aspect of freedom of speech and expression and explore as to what extent does the freely expressed criticism turn to contempt. This imposes immense pressure on the Court of Law to distinguish between criticism and contempt on the part of the Bhushan’s action of freely expressed opinions against the Courts of Law and its adjudicating authorities and whether his tweets unquestionably resorts to scandalising the judicial administration.

[Note: This Article seeks to cover all the facts and bring in the legal standpoints as well as point out the need for Constitutional law to supersede the very Act that violates the guaranteed Freedom of Speech & Expression.]

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Constitutional Crisis in Rajasthan: Analysing the role of Whip

“Well, we cannot vote according to our conscience. There is the Party Whip. God save us from this party system.”

Mahboob Bahadur in the Constituent Assembly on 08.11.1948 while criticising the adoption of British Parliamentary Executive system. 

Introduction

Recently, there has been a Constitutional Crisis which has occurred in Rajasthan. Deputy CM Sachin Pilot and along with others have raised “genuine concerns” with Chief Minister Gehlot and his leadership. Subsequently, the Pilot camp went to Delhi and the Chief Whip of the Congress party called Legislative party meetings on 13.07.2020 and 14.07.2020 with “no agenda”. Both of them were not attended by the Pilot camp. Instead of that, the Chief Whip filed complaint under para 2(1)(a) of 10th Schedule of the Indian Constitution for defiance of the whip. Then, the Speaker of the House issues show-cause notice to Pilot Camp and sought explanations within 2 days. Now, the question arises, who is a whip and what are the roles of the whip? Whether whip applies for actions expected out of members outside the House as well?  

“Whip”: Origins, Contemporary Relevance and Roles

The office of Whip is a purely British Institution and there is a saying that “Parliament without a Whip’s office is like a city without sewerage.” The streamlined and coherent running of the Parliamentary machine hinges largely upon the Whips. In the Parliamentary form of Government, the Whips who are chosen from the Political Party in power and opposition formulate vital links in the internal Organisation of political parties inside the Parliament. They are principal office-bearers of the parties in Parliament – basically disciplinarians. According to Dr Radha Kumud Mookerji, the working of Buddhist Sangha shows that there existed the whip who was called “Ganapuraka”.

“To make a House and to keep a House” are said to be the other important functions of Government Whips. “To keep a House”, says Ivor Bulmer Thomas, “is to ensure that there is always sufficient attendance of members to form a quorum and more particularly to give support to their own chosen speakers.”

In India, The Parliament has passed on Act known as the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998. The Minister of Parliamentary Affairs is the “Chief Whip of Government”. He is tête-à-tête accountable to the Leader of the House. In respect of State Assemblies, “Chief Whip” is defined under Salary Allowances of the Chief Whip in the Legislative Assembly of the National Capital Territory of Delhi Act, 2003 as “Chief Whip in relation to the Legislative Assembly of NCT of Delhi means that MLA who is, for the time being, declared by the majority party to be the Chief Whip in that House of the party forming the Government and recognized as such by the Speaker of the Legislative Assembly.” His duties involve: [1.] advising the Government on Parliamentary business and, [2.] to maintain a close liaison with the Ministers concerning parliamentary business affecting their Departments. There are other multifarious functions of the Whip such as supplying the list of speakers on a particular bill, assist members in the general interest of the party, attend meetings of Business Advisory Committee, finalise government’s business, decide when the session will commence and many other roles.

But after 52nd Amendment to the Constitution, which introduced the Schedule X [to curb political defections –“unethical political defections” constituted “a canker eating into vitals of democracy”], the role of the Whip became somewhat easier. Under the Schedule X, a legislator who voluntarily gives up the membership of the Part [and] legislators who violate their party’s whip stand to lose their place in Parliament or State Assemblies. Much of the rationale for such law – indicated by the Parliamentary Debates that went into its framing – seems to have been the prevention of horse-trading of MPs and MLAs. But the scope of Schedule X is broader than that since it does not just prohibit legislators from voting against their party during a no-confidence vote. Rather, it also seeks to forbid them from voting against the party line on any legislative matter where a whip is issued [as happened in the Rajasthan Assembly case – where the Pilot camp didn’t follow the issued Whip]. In the case of Rajendra Singh Rana v. Swami Prasad Maurya, it was held by the Hon’ble Supreme Court that:

“In the case of defiance of a whip, the party concerned is given an option of either condoning the defiance or seeking disqualification of the member concerned…. the decision to condone, if taken, must be in 15 days.”

India along with Guyana, Pakistan, Bangladesh and Zimbabwe is among a few states which bind the legislators to their political parties in this way.

The MP/MLAs occupy the specific perspective of their constituents [from where they are elected] and share a passionate link to their cause. And yet, their advocacy is rooted in a higher commitment to the common good that allows them the ability to distance themselves from their constituents’ partial perspectives. This allows them to subordinate the claims of their electors to the demands of ‘reason, justice and the good of the whole’ during deliberation in parliament. But herein, there is a conundrum between freedom of speech of a legislator and issuance of the whip—does issuance of whip violate the freedom of speech granted to every legislator in this country [as per Article 105 and Article 194]? Although this “freedom” is “subject to the provisions of the Constitution”, the question remains about the extent of application of Whip. That is, whether Whip applies for actions expected out of members outside the House as well.

Application of Whip outside the House: Suggestions

This is one of the seminal questions which arise from the Rajasthan Constitutional Crisis and has also been pointed out by the Rajasthan High Court in its order dated 24.07.2020 that are members expected to act accordingly to whips outside the House as well? In my opinion, the High Court is wrong in framing this question as political questions must be answered in political forums and not be confined to quibbling in courts.

In the Parliament or State Assembly, Members have to go by their party whips, and therefore a decision of a Parliament is always necessarily a decision of the majority party. There is no objection in the strengthening of the political parties so that the will of Majority prevails in a political party as when a legislator joins a party and succeed on that ticket, he renders himself subject to the discipline and control of the party. Issuance of the Whip is not governed by any law [neither the Rules framed under Tenth Schedule nor the Rules of Procedure and Conduct of Business] But should that rule must apply outside the House as well and bind the legislator on every occasion? On such an occasion if a Whip is issued outside the House, then it leaves no room for dissent and deliberation. It would be appropriate if it is provided in the rules of Parliament or Assembly that a Whip shall be issued only on occasions when the voting is likely to affect the existence or continuance of the government and not on all sundry occasions [be it outside the house or inside].

On this Shri Mahavir Tyagi said in the Constituent Assembly on 02.08.1949 that “I do not take its [Congress party’s] Whip as a mandatory Whip and I do not obey it unless I am myself convinced of it.” Although, he agreed that a legislator must follow the whip inside the House and differentiated that from voting in Constituent Assembly, but didn’t comment about a scenario where a legislator is expected to act according to Whip outside the house or not. The Law Commission of India 170th Report on Reform of the Electoral Laws (May 1999) recommended that,

“It is desirable that the whip is issued only when the voting in the House affects the continuance of the government and not on every occasion. Such a course would safeguard both the part discipline and the freedom of speech and expression of the members.” (Para 9.14)

Coming back to Rajasthan Crisis, if there is any difference of opinion, then it must be ventilated within the party itself and the Pilot camp may fight within the party to have his point of view adopted by the Party. The issuance of Whip, outside the house, on such trivial issues [when there is a disagreement between Chief Minister and Deputy Chief Minister] must not be sustained as it violates the freedom of speech of a legislator which is ensured under Article 194 and Article 19(1)(a) as well. The Courts must stay away from political thickets and must not set a precedent in this issue. They must be reminded about Portia’s warning in The Merchant of Venice: “Twill be recorded for a precedent. And many an error by the same example/Will rush into the state. It cannot be.”