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Deconstructing The Case Of Prashant Bhushan

Prashant Bhushan, a respected senior advocate and activist was charged with 'Contempt of Court', after a series of tweets he posted.

Prashant Bhushan speaks with the media outside the Supreme Court. (Source: Reuters)

The Supreme Court of India is considered the highest court of law in the country and is viewed with dignity and respect. The independent judiciary makes it the third and most important part of our democracy. It upholds the sanctity of the constitution in true letter and spirit and is considered its custodian. The notion of scandalizing of courts comes in existence with the Contempt of Court Act of 1971. Scandalizing of Court means the authority and dignity of the courts being undermined in the public domain. The apex court considers that allowing such scandalizing of courts leads to the weakening of public trust in the judiciary.

Prashant Bhushan, a senior advocate and an activist works for the public welfare. He was closely associated with the Jan Lok Pal Andolan. He is vocal in voicing his opinions boldly and is often under the fire for his controversial tweets and remarks. On 14th August, 2020, a three-judge bench led by Judge Arun Mishra of the Supreme Court which held Bhushan guilty of contempt of court.

Firstly, it is imperative that we have knowledge of what ‘Contempt of Court’ actually means. Anything that obstructs the limits of judicial proceedings results in the hampering and interfering with the due course of justice. This usually constitutes for Contempt of Court. In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil contempt or criminal contempt, it is generally felt that the existing law relating to contempt of courts is somewhat uncertain, undefined and unsatisfactory.

The Contempt of Court Act, 1971 has two sections which will need further explanation. Section 2(b) of the act talks about Civil Contempt which means that any ‘wilful’ disobedience or breach against a judgement passed by the court. Section 2(c) is about the Criminal Contempt which means that any publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) that scandalizes the authority which lowers or brings disrepute to it. Secondly, the interference or prejudice with the due course of judicial proceedings leads to criminal contempt. Lastly, the interference or obstruction with the administration of justice or law in any manner falls under this.

Article 129 of the Indian Constitution empowers the Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself and Article 215 of the Indian Constitution empowers every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Power to punish for contempt of court under Articles 129 and 215 is not subject to Article 19(1)(a) of the Constitution.

Why is Prashant Bhushan charged with contempt of court?

Bhushan had posted two tweets, one against the Supreme Court on June 27 and another against the Chief Justice of India, Sharad Arvind Bobde on June 29. He was served notice by the Supreme Court on July 22. The first tweet, reproduced in the court order, said: “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.” The second referred to the CJI Bobde. “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP (Bharatiya Jananta Party) leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”

While Bhushan expressed some regret towards his second tweet, the court said that it was an attack on the CJI not in his individual capacity but as the head of the highest court of law in the country. Bhushan apologised for the part of the tweet about CJI Bobde not wearing a helmet. He said that he regretted mentioning it as the bike was stationary so wearing a helmet was not required which he did not notice at first. The Bench took exception to the “lockdown” remark and said that from March 23 to August 4, its various Benches had 879 sittings and heard 12,748 matters.

As for his second tweet dated 27.6.2020, it is his submission, that the said tweet that such an expression of opinion, however outspoken, disagreeable or however unpalatable to some, cannot constitute contempt of court. It is his contention, that it is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this 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. However, the court refused to accept the tweet merely as a bonafide opinion of the concerned. The bench said that the tweet shook the public confidence in the judiciary and the CJI as the majesty of law. It undermines the integrity and authority of the apex court. Para 71 of the judgement clearly mentions the court’s rejection to Bhushan’s argument.

Along with this present case of contempt of court, another case dating back to 2009 will be decided by the same three-judge bench led by Judge Arun Mishra deciding whether Bhushan’s comments from earlier regarding corruption in the judiciary would amount to contempt of court. The case against Bhushan concerns a 2009 interview to the Tehelka magazine in which he said that half of the last sixteen or seventeen chief justices of India were corrupt. The hearing will take place on 17th August, 2020.

Prashant Bhushan, along with N Ram and Shourie, had filed a plea challenging the constitutional validity of Section 2(c)(i) of the Contempt of Courts Act, 1971, saying it was violative of freedom of speech and right to equality which they withdrew on Thursday allowed by the three-judge bench headed by Judge Arun Mishra.

The key argument of the court was the scandalising of court. The Bench cited Baradakanta Mishra (1974) in which the court had held that scandalising of the court is a species of contempt, and a common form is vilification of the judge. On Friday, the Bench held that fair criticism of judges, if made in good faith in public interest, is not contempt. So what qualifies as good faith? The Bench said that for ascertaining good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field, and the intended purpose. In 2001, a case involving Bhushan in which charges were dropped later, the bench said that criticism towards judges does not amount to fair criticism.

In conclusion, the judgement against Prashant Bhushan has been moved. Debates have risen whether this judgement undermines the freedom of speech and expression of an individual as he had argued that it is his bonafide opinion. The authority of the Supreme Court has been questioned by a tweet. An institution which is respected and is formed on the bedrock of the rule of law has been threatened.

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