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 4^th, 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.]