In the saddest way, the Supreme Court, by upholding a contempt charge against Senior advocate Prashant Bhushan for a tweet critiquing the judiciary, actually ended up confirming the substance of the tweet!
A three-judge bench, comprising Justice Arun Mishra, B R Gavai and Krishna Murari, held that Bhushan was guilty of contempt. Twitter India, the other contemnor, was discharged as the court agreed it was an intermediary and had suspended both the tweets. The quantum of punishment to be awarded to Bhushan will be announced on Aug 20. Criminal contempt attracts a punishment of simple imprisonment of upto six months and/or a fine of upto Rs 2000.
The 102 page judgement meanders along to establish the right of the Supreme Court to take up contempt cases, the justification for a suo moto cognizance of two 140 character Tweets and the importance of protection against scandalizing the court. Finally, its gets to its reasoning – that ‘national honour’ was at stake!
The judges maintained that attempts to ‘shake the very foundation of constitutional democracy has to be dealt with an iron hand’ and said that the ‘tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy’ and shake public confidence in the institution of the judiciary.
“We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law,” the court said.
The court had taken suo moto cognaizance of two tweets, posted on separate days and not connected with one another. The first Tweet was posted on June 29, 2020, and said :
“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!”
The second Tweet had been posted on June 27, 2020, and said:
“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.”
Adv Dushyant Dave, arguing on behalf of Prashant Bhushan said 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.
Dave also submitted, that ‘to assume or suggest that the CJI is the Supreme Court and the Supreme Court is the CJI is to undermine the institution of the Supreme Court of India.’
The order said:
“Shri Dave submits, that what should weigh with the Court is that, whether the reflection on the conduct or character of a judge is within the limits of fair and reasonable criticism and whether it is mere libel or defamation of the Judge.
It is submitted, that if it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt. He would submit, that in the present case, at the most, it can be said that the allegations in the tweets are only against the present CJI and the past three CJIs and that too, in their individual capacity and as such, in no way they can be said to be calculated to interfere with the due course of justice or the proper administration of the law by Court and therefore, it is not proper to continue with the present contempt proceedings.
He submits, that in such a situation, the question is not to be determined solely with reference to the language or contents of the statement made. All the surrounding facts and circumstances under which the statement was made and the degree of publicity which was given to it would be relevant circumstances.
He submits, that insofar as the first tweet is concerned, the said was an expression of anguish by the alleged contemnor No.1 on account of non-functioning of the physical courts for the last more than three months and thereby, denying the right to justice to the litigants.
Insofar as the second tweet is concerned, in the submission of Shri Dave, that the said was an expression of his opinion that on account of the action or inaction of the Four CJIs that contributed to the destruction of democracy in the country, without a formal emergency.”
Furthermore, quoting from the observations made by Justice Krishna Iyer in Re: S. Mulgaokar, Dave argued that ‘the court should be willing to ignore, by a majestic liberalism, trifling and venial offences. It is submitted, that the Court will not be prompted to act as a result of an easy irritability. Rather, it shall take a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.
He submits, that this Court had held, that to criticize the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. He submits, that where freedom of expression, fairly exercised, subserves public interest in reasonable measure, public justice cannot gag it or manacle it.’
However, the Supreme Court, drawing from a Constitutional bench judgement in Brahma Prakash Sharma and Others v. The State of Uttar Pradesh, said that ‘a publication which attacks on individual judges or the court as a whole with or without reference to particular case, casting unwarranted and defamatory aspersions upon the character or ability of the judges, would come within the term of scandalizing the Court. It is held, that such a conduct tends to create distrust in the popular mind and impair the confidence of the people in the courts, which are of prime importance to the litigants in the protection of their rights and liberties.
It has been held, that it is not necessary to prove affirmatively, that there has been an actual interference with the administration of justice by reason of such defamatory statement and it is enough if it is likely, or tends in any way, to interfere with the proper administration of justice.’
Scandalising the court
The order also went into the tricky issue of what constituted scandalising the court, an archaic term that comes from the colonial era law of Contempt (UK had dropped this from its own statutes in 2012). The Supreme Court said that:
‘…hostile criticism of judges as judges or judiciary would amount to scandalizing the Court. It has been held, that any personal attack upon a judge in connection with the office he holds is dealt with under law of libel or slander. Yet defamatory publication concerning the judge as a judge brings the court or judges into contempt, a serious impediment to justice and an inroad on the majesty of justice.
This Court further observed, that any caricature of a judge calculated to lower the dignity of the court would destroy, undermine or tend to undermine public confidence in the administration of justice or the majesty of justice. It has been held, that imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court and would be contempt of the court. It has been held, that the gravamen of the offence is that of lowering his dignity or authority or an affront to the majesty of justice.
This Court held, that Section 2(c) of the Act defines ‘criminal contempt’ in wider articulation. It has been held, that a tendency to scandalise the Court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt.’
SC in Lockdown mode
The court rejected the substance of the first tweet saying that the date on which the CJI is alleged to have taken a ride on a motorbike is during the period when the Supreme Court was on a summer vacation. Besides, the Court started functioning through video conferencing. From 23.3.2020 till 4.8.2020, various benches of the Court have been sitting regularly and discharging their duties through video conferencing. The total number of sittings that the various benches had from23.3.2020 till 4.8.2020 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India.
The judges said : ‘It can thus be clearly seen, that the statement, that the CJI has kept the SC in lockdown mode denying citizens their fundamental rights to access justice is patently false.’
The order said :
In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.
Finally, the judges took recourse to ‘national honour’ :
‘when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand firmly. If such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them.’
Download the order Prashant Bhushan SC contempt order