Contempt of Court is a double-edged weapon, which if correctly used, protects the authority of the court; if misused it harms as well. The contempt case against Mr. Prashant Bhushan, a Senior Advocate at the Indian Supreme Court, is a recent example of such exorbitant use of contempt power. Bhushan was held guilty of contempt for scandalization over two tweets for which he was fined 1 rupee.
The case began with two of his tweets, wherein first, he criticized the Chief Justice of the Indian Supreme Court for preventing people from the Right to Justice by locking down the court; while second claimed the role of the Supreme Court and in particular the last six Chief Justices have a role in the destruction of Indian democracy. The court brought suo-moto contempt proceedings against Mr. Bhushan for his tweets.
Amid a pandemic where the court was functioning virtually in a limited capacity, the swift proceeding of the contempt case and revocation of the nine-year-old contempt case against Bhushan was odd for observers of the court. A number of lawyers wrote to the Chief Justice to bring back the suit. Former Justices of the Supreme Court also came out to support Bhushan’s words and asked him to acquit himself. The court on September 24th declared its judgment convicting Bhushan of contempt. The 108 paged decision of the Apex Court claimed his tweets were a threat to the foundation of Indian democracy, which needs to be dealt an iron hand. The judgment received a shower of comments and criticism, and a number of lawyers, ex-judges, civil servant politicians, and eminent citizens called the judgment regressive in an attempt to put a chilling effect upon free speech. The criticism of the judgment was basically based on three grounds.
The Suit of Contempt was filed by Advocate Mehak Maheshwari, and the suit didn’t follow statutory provisions under the Contempt of Court Act 1971 which requires the prior approval of the Attorney General. The court, however, agreed to ignore the procedural error and convert it into a suo-moto contempt case. Even prior to the hearing, Bhushan filed an application asking the Chief Justice to make the hearing of the case on the bench other than that of Arun Mishra. What Bhushan argued was that Justice Mishra had prior biases against him. His request was denied and the bench led by Justice Mishra convicted him of contempt.
Secondly, the judgment fails to satisfy the conviction with proper reasoning. Truth and fair criticism is a popular defense, recognized by Indian law as well under the Act. The bench held that Bhushan’s first tweet was factually incorrect to his knowledge that the court denied citizens access to justice, as the court during that period heard and disposed of 879 cases respectively, along with one in which the accused himself was a party. Regarding the second tweet, the court finds the criticism against the Supreme Court as an institution. Secondly, the court settled the good-faith question by evaluating the platform, Twitter, on which the publication was made; and, secondly the circumstance of the lawyer, according to which the court doesn’t expect a person having 30 years’ experience to demean the faith of the public on the court.
Thirdly, the court has not engaged with the affidavit presented in defense by Mr. Bhushan. The court just put its opinion without any logical grounds for the conviction. This poorly reasoned judgment has been observed as a threat to free speech and a calculated attempt to silence Bhushan, who has been vocal about irregularities and corruption in the judiciary.
Mr. Bhushan is a prominent public interest lawyer who has been continuously working to fight for judicial accountability. Before sentencing, the Apex Court asked him to ask for an apology for his statement. However, he willfully said, “I here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offense, and what appears to me to be the highest duty of a citizen”. In denial of numerous requests to apologize, Court finally sentenced him with 1 rupee punishment.
The punishment of 1 rupee is not a harsh cost of free speech, however, the way in which the voice of prominent lawyers is tried to be silenced by the court is worth worrying. Mr. Bhushan has claimed his tweets were a deliberate opinion formed by his close observation of the court. The tweets were not even of the potential to decline the public’s faith in the judiciary. His opinion has been discussed and resonated in the hearts and minds of several others. In the affidavit presented, he pointed to a list of instances: no hearing for Habeas Corpus Writs, and the denial of the internet in the states of Jammu and Kashmir for months; the emergence of seal cover doctrine in the Justice Loya Death Case, Rafael Deal Case; and the Assam NRC Case. Further, he mentioned, the manner of setting the bench and prioritizing cases for hearings like the Electoral Bond Case filed in 2017 was unsettled and largely benefited the ruling party; the hearing of Abrogation of 370 has not been started; while Ayodhya Land Dispute Case is being decided in 40 days. Similarly, there was also a mention of the manner in which then Chief Justice Gogoi had dealt with the Sexual Harassment Complaint made against him without signing the order, and the appointment of Justice Gogoi to the Rajya Sabha by the government shortly after his retirement; and, the inexplicable transfers of Justice Kureshi and Justice P. Nandrajog. He also referred to historic press conferences by sitting senior justices of the Supreme Court, public discussions on the role of the Supreme Court, and a list of controversial judgments by the last four chief justices in cases that led to the decline of the reputation of the Supreme Court.
Chief Justice Beg in S. Mulgaokar v. Unknown; held that the judiciary adopts a magnanimously charitable attitude, even when utterly uncharitable and unfair criticism of its operations is made out of bonafide concern for improvement. Judiciary being a public institution is definitely subject to social audits in a democratic society. Courts are not immune to comments or criticism. It helps the judges to perform their duty efficiently rather than impacting their authority. However, the court seems very intolerant toward the comments made against them. It found two tweets containing 240 letters, a threat that shook the foundation of Indian democracy. The tweets should have been ignored by the court. Mr. Bhushan’s conviction as an extremely urgent matter shows how oversensitive it has turned towards its dignity. While convicting him, the court held that his tweets undermined the dignity of the authority of the court and it should be dealt with an iron hand. However, the pursuit of the dignity of the court has turned unfortunate as it has created daunt to its own dignity.
Mohd Rameez Raza is a law-student at Integral University, India. Suraj Ray is a law student at Nepal Law Campus, Tribhuvan University, Nepal.
Suggested Citation: Mohd Rameez Raza and Suraj Ray, The Pursuit of Dignity: A Tale of the Indian Supreme Court’s Contempt, JURIST – Student Commentary, September 28, 2020, https://www.jurist.org/commentary/2020/09/raza-ray-bhushan-contempt/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.
