The recent suo motu criminal contempt proceedings initiated by the Supreme Court of India against social activist and lawyer Prashant Bhushan in regard to two of his tweets has proven to be a legal quagmire for the judiciary. It has raised questions on the true intent of contempt of court proceedings and the independent nature of the judiciary. Contempt of court is a common-law concept that arose in England during times when kings delivered judgments themselves. This concept, although relevant for monarchical times, is asynchronous to a democratic structure like India, whose entire identity is based on the freedom of speech and the independence of the judiciary from the executive.

Contempt of court is a unique circumstance that undermines the freedom of speech of an individual in order to safeguard the court from any scandalization and defamation so as to enable it to carry out its functions in a fair and fearless manner. It has specifically been recognized as a limitation on the freedom of speech under Article 19(2) of the Indian Constitution. Furthermore, the Contempt of Courts Act, 1976 has provided statutory recognition to this concept. According to the Act, contempt of court can either be civil or criminal. While civil contempt is reasonable in the sense that it ensures that the orders of the court are complied with, criminal contempt is where the judiciary has been vested with vast powers that are often misused for frivolous purposes. There are three elements to criminal contempt – (a) words, whether written or spoken, signs and actions that “scandalize” or “tend to scandalize” or “lower” or “tend to lower” the authority of the court, (b) prejudices or interferes with any judicial proceeding and (c) interferes with or obstructs the administration of justice. The first element of criminal contempt is open-ended and is left to the ultimate discretion of the court. The special nature of contempt proceedings is that it is not the state against the individual, but the very court against the person. The judges themselves are the petitioners, judges, and executioners, and begin with the presumption of guilt of the accused. From the very outset, it hints that this discretionary power vested with the court is arbitrary and results in an unfair trial of the accused, who is at the beck and call of the court. It makes a mockery of the principles of natural justice under the pretext of protecting and demanding respect for the court of law.

The same provision was used to initiate criminal contempt proceedings against Prashant Bhushan on July 22nd, 2020 for two of his tweets – one in which he claimed that the Supreme Court played a major role in the “destruction of democracy”; and in another tweet, he commented on a picture of the Chief Justice of India astride a Harley-Davidson bike without a helmet and face-mask “while the Supreme Court is in lockdown mode”. These tweets in the opinion of the Supreme Court tended to “lower the authority of the Court”. Prashant Bhushan, in his extensive reply to the suo motu proceedings on August 5th, has categorically contended that his tweets constitute free speech and every form of criticism “however outspoken, disagreeable or however unpalatable, cannot constitute contempt of court”. Furthermore, he remarked that “it is the essence if a democracy that all institutions, including the judiciary, function for the citizens and the people of the country and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution.”

Currently, the law of contempt has become obsolete in most foreign countries as they have recognized its archaic nature which is not synchronous with democratic systems. The US has almost no contempt law, while both the UK and Canada have adopted very liberal approaches to contempt proceedings. In Canada, they limit contempt proceedings only when there is a real and substantial danger to the administration of justice. In the aftermath of the 1987 Spycatcher judgment by the House of Lords in the UK, Lord Sidney Templeman was represented in a cartoon with the caption “You old fools” by the Daily Mirror. However, he refused to initiate contempt proceedings, citing that not every personal opinion warrants action if it was made without malice. He famously remarked that he was old and whether he was a fool is a matter of perception and he personally did not believe so. Similarly, in 2016, after the Brexit judgment, no contempt proceedings were initiated against the Daily Mail for titling their article as “Enemies of the People”.

Unfortunately, on the eve of the 74th Independence Day of the world’s largest democracy, the Supreme Court of India held Prashant Bhushan guilty for criminal contempt citing that his tweets reach millions of people and “undermine the dignity and authority of the institution of the Supreme Court of India and the Chief Justice of India”. The Supreme Court, in its 108-page judgment, avoided examining the averments made in Prashanth Bhushan’s detailed reply and arbitrarily held that if this action were not taken in such cases it would “affect the national honor and prestige in the comity of nations”. The court remarked that a “fearless and impartial court” is the ultimate feature of democracy and such comments are a direct attack on the foundations of democracy. The irony in all of this is that the very court that spent decades upholding the constitutional right of freedom of expression has, in a matter of 3 weeks, suppressed all forms of criticism against it by stating that such criticism is an attack on the very institution of democracy. The detailed judgment comes at a time when the country is grappling with a pandemic, coupled with the pendency of various other issues such as the habeas corpus petitions from the people of Jammu and Kashmir and the constitutionality of the Citizenship Amendment Act (CAA) and the National Register of Citizens (NRC), thereby indicating the court’s ulterior motive to nullify any kind of criticism against it.

The case of Prashant Bhushan highlights a disturbing trend wherein judges are making liberal use of their suo motu powers to punish those that hurt their personal egos under the garb of upholding the authority and respect of the court. By criminalizing any form of criticism against the judges’ actions, it would only worsen the situation further as this forced silence would not demand the kind of respect and authority that the court is seeking. Contempt proceedings harm the institution as a whole and, if frivolously used by courts to reconcile their hurt egos, ultimately nullify any kind of criticism against the court even if it is warranted.

Constructive criticism is the life and blood of a democracy. However, the top judges have failed to be broad-minded in initiating contempt proceedings and have made use of their wide discretion to take action against comments that have hurt their personal sentiments which may not necessarily affect the public opinion of the court altogether. In doing so, it has only gone on to trample upon the civil liberties guaranteed under the Constitution and has inflicted a huge blow to India’s already tottering democratic foundations. It is imperative for the judges to distinguish between statements that result in personal injury and those that tarnish the image of the court before initiating contempt proceedings. Furthermore, it is necessary for the courts to become broad-shouldered and adopt a liberal approach to criticisms to avoid the risk of becoming akin to an authoritarian regime, where it is above all criticism. Only time will be the judge to determine the implications of this case on the future of Indian democracy at a time when allegations of authoritarianism are growing in popularity.

Aditya Shankar is a final year law student pursuing a degree in BA. LL.B (Hons.) at School of Law, CHRIST (Deemed to be University) in Bangalore, India.

Suggested citation: Aditya Shankar, Analyzing the Law of Criminal Contempt through the Case of Prashant Bhushan, JURIST – Student Commentary, August 18, 2020, https://www.jurist.org/commentary/2020/08/aditya-shankar-prashant-bhushan-criminal-contempt-case/.

This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at commentary@jurist.org