Judgment on Merits in Plain EnglishContempt Petition Against Prashant Bhushan
On July 22nd 2020, the Supreme Court issued Prashant Bhushan a contempt notice based on two tweets authored by Mr. Bhushan: the first regarding the CJI riding a Harley Davidson motorcycle, and the second regarding Mr. Bhushan’s assessment of the role of the Court in the ‘destruction of democracy’. Mr. Bhushan then filed a preliminary response to this notice in the form of a Reply Affidavit, which was heard by the Court on August 5th 2020. On August 14th 2020, a three-member bench of the Supreme Court, comprising of Justices Arun Mishra, B.R. Gavai, and Krishna Murari, delivered their judgment, finding Mr. Bhushan guilty of having committed criminal contempt of court.
The Court’s judgment addressed each of the arguments put forth by Senior Counsel Dushyant Dave on behalf of Mr. Bhushan, and the arguments in Mr. Bhushan’s Reply Affidavit. The Court used precedents as well as rulings of constitutional benches to support its rebuttals. The judgment concludes with a qualitative assessment of Mr. Bhushan’s two tweets, concerning some specific metrics laid out by the Court. Notably, where Mr. Dave relied on the case of Re: S Mulgaokar (1978) in his defence of Mr. Bhushan’s statements, the Court relied too on this judgment, to show that it must find Mr. Bhushan guilty of criminal contempt.
Procedural Concerns Addressed
The first argument put forth by Mr. Dave was a procedural one, where he asserted that the Court did not have the authority to convert Mr. Maheshwari’s petition into a suo moto petition without the consent of the Attorney General. In response, the Court referred to the judgment in Re Vijay Kurle (2020), where the bench held that s.15 of the Contempt of Courts Act, 1971 is not a substantive provision which conferred contempt jurisdiction on the Supreme Court. Section 15 was held to be merely a procedural provision, while the actual power was conferred by Art. 129 of the Constitution. Thus, the Court held that it is well within its powers to take suo moto cognisance of an issue based on the information it has received. The only rule it must abide by is that in P.N. Duda (1988), which the Court asserts has been followed in this matter. Consent of the Attorney General was unnecessary as the Court has inherent powers to punish for contempt.
What Constitutes Contempt?
Next, the Court addressed the definitional argument of whether or not Mr. Bhushan’s conduct amounts to criminal contempt as per the s.2(c)(i) of the Contempt of Courts Act, 1971—whether it ‘scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court’. To this, the Court referred to the case of Brahma Prakash Sharma (1953), where a Constitutional Bench held that attacking judges without reference to specific cases, and casting unwarranted or defamatory aspersions on their character or ability did in fact amount to ‘scandalising’ the court.
The Court also held that it was not necessary that the conduct amount to actual interference with the course of justice, as asserted by Mr. Bhushan in his Reply Affidavit. It will suffice for the conduct to tend to or be likely to in any way interfere with the administration of justice.
The Court then dismissed the argument that this notice of contempt conflated a Judge with the Court, as well as the Judge as an individual with the Judge as a member of the Judiciary. The Court referred to the judgment in Baradakanta Mishra (1973) where it was held that if an attack on a judge functioning in his/her official capacity substantially affects the administration of justice, it becomes an issue of ‘public mischief’ that would be punishable as contempt. The Court insisted that while the functions of an individual judge may be divisible, his ‘integrity and authority’ are not divisible in the context of the administration of justice.
Next, the Court addressed Mr. Bhushan’s argument that it must not respond with ‘easy irritability’ to criticism, and must use its powers to punish for contempt wisely. The Court agreed with this sentiment, but referred to the ruling of Justice Krishna Iyer in Re: S. Mulgaokar (1978), who held that while the power must not be exercised lightly if the Court finds conduct malicious beyond condonable limits, it must ‘strike a blow on him who challenges the supremacy of the rule of law’.
Finally, the court addressed the issue of free speech as enshrined by Article 19(1)(a) of the Constitution of India, 1950, which is subject to ‘reasonable restrictions’ as per Article 19(2). The Court held that if a statement was made in good faith but exceeded the limits of Article 19(2) in the public interest, the Court would not find the person in contempt.
Did Prashant Bhushan’s Tweets Scandalize the Authority of the Court?
Having addressed these contentions, and laying down an argumentative foundation for its findings, the Court turned then to the tweets themselves. These were then measured against the Court’s definition of a contemptuous statement. The first question the Court asked was whether they were levelled against the Judge in his official capacity. Second, the Court asked whether the tweets affected the majesty of law or the authority and dignity of the Court—the word ‘authority’ is defined here as approved in Baradakanta, not as a coercive power, but rather as fitting deference and respect. Third, it asked whether the statements had the potential to interfere with the administration of justice, by undermining public confidence in the judiciary. Finally, it asked whether the statements were a bonafide excess of the reasonable restrictions in Article 19(2), made in the interest of the public. Other issues that were highlighted included the extent to which these statements were unfounded and the intent with which they were made.
The first tweet was regarding the CJI riding a Harley Davidson motorcycle. Mr. Bhushan had contended that this tweet reflected his anguish at the non-physical functioning of the Supreme Court since the Covid-19 lockdown, which resulted in the fundamental right of access to justice being undermined. To this, the Court responded that Mr. Bhushan’s statements were blatantly false and inaccurate. The photograph in question had been captured during a period where the Court was on vacation, and the vacation benches were functioning regularly. The Court also pointed out that Mr. Bhushan himself was personally involved in some of the proceedings that took place through video conference, both as an advocate and as a litigant. As such, it was untrue and unfair to state that the CJI had kept the court in a state of lockdown and denied citizens access to justice. The Court held that this false and scandalous implication gave the public an impression that could shake its confidence in the judiciary.
As for the second tweet, the court addressed it in three parts: (i) the destruction of democracy in India, (ii) the role of the Supreme Court in allowing the destruction of democracy, and (iii) the role of the last 4 CJIs in allowing the destruction of democracy. As to the first part, the Court declined to comment, stating that it did not concern the institution of the Court itself or the administration of justice. On the second and third parts, the Court held that the comments were directed at the institutions of the Supreme Court and the Chief Justice of India. These statements were not, it asserted, directed at individuals, but rather at the institutions themselves, thus firmly bringing the tweet into the realm of criminal contempt. The reach of this tweet was emphasised when considering whether it was in ‘good faith’— as it was published on a public platform for millions to see.
Next, the Court considered the identity and responsibility of the alleged contemnor, an advocate who is part of the administration of justice and must thus behave like a responsible officer of the Court. It was held that Mr. Bhushan’s actions were incongruent with his role, which must be the protection of the majesty and authority of the Court. The Court dismissed Mr. Bhushan’s assertions as to the factual veracity of his claims and held that the truth of his statements as to the destruction of democracy was immaterial. What the Court was concerned with, in its assessment of whether his statements amounted to criminal contempt, was their potential to damage the institution of the administration of justice.
As such, the Court held that Mr. Bhushan’s tweets were not a fair criticism of the functioning of the judiciary, and had the potential to destabilise one of the pillars of Indian democracy. Lastly, the Court, emphasising the need to uphold the majesty and dignity of the law, found Mr. Bhushan guilty of criminal contempt.