CONTEMPT OF COURT VS CONTEMPT OF CONSCIENCE : PRASHANT BHUSHAN CASE.

BACKGROUND

The eminent personality MR. PRASHANT BHUSHAN, a public interest lawyer in the Supreme Court of India has been in the limelight these days as he was found guilty for contempt of court under Contempt of Court Act, 1971 by the Supreme Court of India. He was found guilty on 14th August 2020 by the bench of justices Arun Mishra, BR Gavai and Krishna Murari for his criticism on judiciary through social media platform namely Twitter, where the allegedly criticised the present Chief Justice of India Justice Sharad Arvind Bobde on 29th June 2020 that the CJI was posing on a Harley Davidson worth 50 lakhs without mask or helmet, on the other hand deprived the common people access to justice by keeping the court closed amidst Covid19 pandemic. He also expressed his views on role of Supreme Court (last four judges) in destroying democracy of India through Twitter on 27th June 2020.

Article 129 of Indian Constitution states that the Supreme Court shall be a court of record and shall have all the powers to punish for contempt of it. Subsequently, the Apex Court initiated criminal contempt proceedings under Section 2(c) of Contempt of Court Act, 1971 against Prashant Bhushan for his derogatory remarks against judiciary. On 20th August, the Apex Court heard the matter to decide quantum of punishment to be awarded to Mr Prashant Bhushan and the court gave him time to submit an unconditional apology by 24th August if he wished. Bhushan in a supplementary affidavit filed on 24th August refused to apologise and contended that an insincere apology would be contempt of his conscience and added that it was his bonafide impression about the working manner of Supreme Court in the past few years.

Prashant Bhushan stated- “I am pained, not because I may be punished, but because I have been grossly misunderstood. I am shocked that the court holds me guilty of malicious, scurrilous and calculated attackon the administration of justice. I can only reiterate that those two tweets represented my bonafide belief and public interest which should be permissible in the world’s largest democratic nation. I believe that open criticism must be allowed to protect the sanctity of Indian Constitution.”

He also rephrased the statement of father of our nation Mahatma Gandhi- “I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the court has determined to be an offence, and what appears to me to be the highest duty of a citizen.”

Attorney General K K Venugopal urged the court not to punish Prashant Bhushan as he had done a lot of good work in public interest and let him go after a warning. The court stated – fair criticism of judicial acts is not contempt provided it should not attribute motives to judges because they cannot go to the press to defend themselves and can only speak through judgements.

In the judgement of-

R. Muthukrishnan v. The Registrar General of the High Court of Judicature at Madras, AIR 2019 SC 849 Supreme Court held that fair criticism of any judgement and its analysis is permissible. Independence and fearlessness of lawyers in court cannot be sacrificed.

The bench cited Lord Denning in-

Regina v Commissioner of Police of the Metropolis, [1968] 2 QB 118 – “We do not fear criticism, nor do we resent it. It is the right of every man, in parliament or out of it, in the press or over the broadcast to make fair comment on matters of public interest.”

Justice Arun Mishra relied on observations of Justice Krishna Iyer in –

In Re: S. Mulgaokar vs Unknown (1978) 3 SCC 339, 1978 3 SCR 162- “It is submitted, that the Court will not be prompted to act as a result of an easy irritability. This Court had held that to criticize the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy”. It was argued in favour of harmonising the constitutional values of free criticism.

CONTEMPT OR FAIR CRITICISM?

Article 19 of Indian Constitution empowers the citizens freedom of speech and expression but such freedom is not absolute and reasonable restrictions can be imposed on them.

C. K. Daphtary & Ors vs O. P. Gupta & Ors 1971- Supreme Court held that contempt of court is a reasonable restriction to fundamental right of freedom of speech and expression.

Section 2(c) of Contempt of Court Act 1971 defined criminal contempt as the publication (whether by words, spoken or written or by signs, or by visible representations or otherwise) of any matter or doing of any other act whatsoever which – scandalises, diminishes the authority of any court, interferes in the justice system or obstruct institution of administration.

P.N. Duda vs V. P. Shiv Shankar & Others on 15 April, 1988- It was held that mere criticism of Supreme Court judgements is not contempt of court.

Brahma Prakash Sharma and ors vs state of Uttar Pradesh, 1954- It was held that fair criticism of judge is not contempt of court.

In the first tweet Prashant Bhushan raised a question on closure of courts physically and pictured CJI on Harley Davidson bike without mask and helmet and surrounded by people. It cannot be called as contempt as there is difference between the CJI and the court. Bhushan however apologized for the same. In the second tweet he stated the role of last four CJI in destruction of democracy. His statement was prima facie defamatory but whether it was criminal contempt? This is a question that whether the statement made in good faith and in public interest be termed as contempt.

DECREE OF PRASHANT BHUSHAN CONTEMPT CASE

On 31st august, the bench comprising of justices Arun Mishra, B R Gavai and Krishna Murari sentenced Senior Advocate Prashant Bhushan to pay a token money of Re 1 as fine by September 15, failure of which will amount to imprisonment of 3 months and debarment from practising law for three years. Supreme court stated that section 13 of Contempt of Court Act 1971 enables the truth as a valid defence in contempt proceeding only when it satisfies twin test that is the statement must be bonafide in nature and in public interest.

Prashant Bhushan in a press conference on 31st August evening stated to respectfully pay fine of Re 1 and also stated that he reserves the right to seek a review of conviction. He also reiterated that his tweets were not intended to disrespect supreme court as he holds greatest respect for it. Bhushan stated- “Supreme Court of India wins, every Indian wins. If court gets weakened, it weakens the republic and harms every citizen. Bhushan also called his contempt case as watershed moment for freedom of speech which seems to encourage many people to stand up against any injustice in society. He ended his statement with – long live democracy! Satyamev jayate (truth alone triumphs)!”

- Priyamvada Shukla,

LL.B (2nd year),

Faculty Of Law, Lucknow University