Tanishka Goswami

The Apex Court’s verdict challenges the notion of free speech in Indian democracy. This piece traces the idea of ‘contempt of the court’  through Indian Jurisprudence.

On August 14, 2020, a Supreme Court bench of Justices Arun Mishra, BR Gavai and Krishna Murari convicted Senior Advocate Prashant Bhushan of contempt of court based on two of his tweets about the current Chief Justice of India (‘CJI’) SA Bobde, and about the role the past four CJIs played in the country’s current situation. After a 108-page judgment on conviction, the Court imposed a fine of Rs. 1 on Bhushan on August 31, 2020. Another case of contempt against Bhushan regarding his 2009 interview to magazine Tehelka has been deferred to September 10, 2020. Articles 129 and 215 of the Constitution of India empowers the Supreme Court and High Courts to punish for its contempt. Additionally, tracing its origin from English law, the Contempt of Courts Act, 1971 (‘The Act’) defines and regulates powers and procedures of courts to deal with civil and criminal contempt. In a democracy, the purpose served by these provisions is to enable the administration of justice, and thereby protect the Court’s dignity. In fact, as per section 5 of the Act, fair criticism of judicial acts does not constitute contempt in the eyes of law.

How does Bhushan’s open criticism of the apex Court’s functioning then constitute a ‘malicious, scurrilous, calculated attack’ on an important pillar of the Indian democracy? In this light, the author maps the judicial developments regarding contempt of court in India. The author then proceeds to analyze the apex Court’s verdict In re: Prashant Bhushan & Anr., and argues that the same defeats the very idea of free speech upheld time and again by the judiciary. Lastly, the author examines the multifarious implications of the verdict. As a caveat to the readers, this article is not concerned with creating a case in favor of Bhushan, but more so with free speech.

Legal History and Judicial Approach to Contempt of Court

In Brahma Prakash Sharma v State of Uttar Pradesh (1953), the apex Court laid down two factors that had to be carefully considered while ruling on contempt: one, that reflection on the character of a judge in exercise of fair and reasonable criticism would not constitute interference with administration of justice; and two, that care should be taken in distinguishing between libel and contempt. While deciding Bhushan’s case, the SC cited Brahma Prakash to note that his statements, though do not cause actual interference with administration of justice, they have the capacity to do so. This shall be examined in the subsequent sections of the article.

Additionally, in EM Sankaran Namboodripad v. T. Narayanan Nambiar (1970), the SC noted that conduct that brings the court into disrepute, and affronts its authority constitutes contempt. The court stated clearly that contempt is constituted when the derogatory attack is on ‘justice’; when a particular judge is defamed, then the same would not scandalize the judiciary as a whole. Similar to this, a five-judge bench of the Apex Court in Baradakanta Mishra v Registrar of Orissa High Court (1974), held that the power to punish for contempt shall arise only when the harm caused to administration of justice is not beneath notice. Villificatory criticism of a judge in his official capacity of judicial administration; and not personal capacity, constitutes contempt. The Court noted the importance of the fundamental right to free speech under Article 19 of the Constitution in holding that the power to punish for contempt shall only be exercised with scrupulous care.

Popularly known as the Mulgaokar principles, the SC laid down certain indicators in Mulgaokar, in re (1978), that may be kept in mind while ruling for contempt. The case pertained to an article written by AG Noorani in the Indian Express about certain judicial decisions during the Emergency period. Krishna Iyer, J., noted:

“The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges, where the attack is calculated to obstruct or destroy the judicial process. The court is willing to ignore, by a majestic liberalism, trifling and venial offenses – the dogs may bark, the caravan will pass. The court will not be prompted to act as a result of an easy irritability.”

The Court noted that constitutional values of free and fair criticism shall be carefully considered before exercising the power to punish for contempt. Only when the confidence in the judiciary is calculatedly attacked by malicious attacks beyond condonable limits, that contempt can be held. On a consideration of these judgments, two pertinent questions arise: one, whether Bhushan’s statements meet the standard of contempt laid down by the Court in its past rulings – in fact, is there a set standard for holding contempt? Two, whether the SC has deviated from its previous approach towards contempt this time.

Bhushan on Trial: What the Supreme Court held

Based on 280 characters of criticism, the Court found Prashant Bhushan guilty of contempt. The Bench referred to the American case of Rex v Almon (1765), to hold that the authority of the Court extends to the ‘deference and respect that is paid to Judges for their acts’. It also noted that this authority is exercised not to vindicate the honor of the judge who was personally attacked, but to uphold the majesty of law. Mentioning its verdict in Arundhati Roy, in re (2002), the Bench also sought to bring out a difference between hostile criticism, and fair and bona fide criticism – noting that the latter stems from good faith and public interest.

The first tweet wherein Bhushan states that the CJI rides a Rs. 50 lakh motorcycle belonging to a BJP Leader, while keeping the SC in a lockdown mode and denying citizens the fundamental right of access to justice, was termed patently false. The Court noted that such allegation is scandalous, and misleads a layperson in light of the fact that hearings were taking place before vacation benches as well as through video conferencing. With respect to the second tweet through which Bhushan comments on the deteriorating state of Indian democracy and the role that the previous four CJIs played in this ‘destruction’, the Court observed that it undermined the dignity of the institution. The Court refused to display ‘magnanimity’ against this ‘uncharitable’ criticism for the same is part of a scheme and design to scandalize fearless and impartial courts of justice. It, however, repeatedly asked Bhushan to apologize for ‘hurting’ the Court’s feelings. The following segment analyzes the implications of the SC’s verdict.

Is the Court Scandalizing Itself Through this Verdict?

First, the evergreen debate over the fundamental freedom of speech not being absolute for everyone comes to fore. The Supreme Court had noted in CK Daphtary v. OP Gupta (1971), that the law of contempt constitutes a reasonable restriction on the freedom of speech and expression, as permissible under Article 19(2) of the Constitution. In para 56, the present Bench also observed that a ‘scurrilous’ attack on a judge in respect of his/her past judgments or conduct has an adverse effect on justice, thereby constituting contempt. When we look at Bhushan’s tweets, the only apparent inference that can be made is that a citizen is speaking in anguish about the judiciary’s approach towards certain happenings in the country.

Even when he notes the action, or inaction of the past four CJIs in ‘destruction of democracy’ in the country, no interference in administration of justice is visible. The idea that the judiciary’s integrity is derived from, and maintained by public perception towards it acts as a serious impediment to dissent. The SC noted in para 57, that fair criticism in ‘good faith’ is more than welcome by the institution – ascertainment of the same shall be made on the basis of surrounding circumstances including the knowledge of the person in the field regarding which s/he makes comments. Selectively enough, it failed to note Bhushan’s role as an officer of the court for 30 years in making a determination of ‘good faith’ in the instant case.

Second, the pertinent question on whether or not there even exists a standard to hold contempt has been triggered by this verdict. In Narmada Bachao Andolan v. Union of India (1999), the apex Court noted that distorting and misrepresenting the Court’s directions by ‘vicious stultification and vulgar debunking’, impermissible under the freedom of expression. However, despite noting that Arundhati Roy and Medha Patkar’s statements on the Court’s handling of legal and humanitarian issues surrounding the construction of the Sardar Sarovar Dam had a tendency to scandalize administration of justice, the Bench refrained from taking action for contempt. SP Bharucha, J. stated that ‘the Court’s shoulders are broad enough to shrug the comments’, and the focus would lie on resettlement of the oustees. Subsequently, however, in its 2002 judgment in Arundhati, in re, the apex Court held Arundhati Roy guilty of contempt, sentencing her to imprisonment for one day, and a fine of Rs. 2000. These differing determinations have been clouded by contrasting approaches taken by judges. The cost of this chaos has been borne by free speech in the country.

Third, this verdict shows how inviolable constitutional values have been conveniently moulded by the Apex Court. In 2017, CS Karnan became the first serving judge to have been convicted for contempt – he served the strictest sentence under section 12 of the Act – imprisonment for 6 months along with a fine of Rs. 2000. Karnan had addressed a series of letters to top executive officials, including the Prime Minister, wherein he not only alleged caste discrimination within the process of judicial appointments, but also custodial rape by a particular judge and rampant corruption. He also convicted and sentenced sitting judges of the SC to 5 years imprisonment for various charges. In the suo motu contempt proceedings, the apex Court found Karnan’s allegations to be malicious and defamatory, and without any supporting material. He was found to be guilty of criminal contempt of the gravest nature.

While Bhushan’s case is distinguishable from Karnan’s in terms of the nature of his conduct, the manner in which free speech has been moulded is unconstitutional. As noted by Gautam Bhatia previously, prior restraint in Karnan’s case prohibited speech and expression before it even took place. As noted in Brij Bhushan v. State of Delhi (1950), imposition of pre-censorship restricts freedom of speech guaranteed by the Constitution. Through its verdict in Bhushan’s case, the SC has equated the CJI with the judiciary as a whole, thereby deeming criticism of CJI(s) equivalent to interference with administration of justice.

Lastly, this verdict sets a problematic precedent; one that is open to misuse in the future, and one that will continue to pose a threat to freedom of expression. To give an example, the verdict brings into its radar, outspoken critics of the Supreme Court such as Justice (Retd.) Madan Lokur, Arun Shourie, Justice (Retd.) AP Shah, Dushyant Dave, who have sometimes been sharper in their condemnation of the judiciary’s functioning. The fact that the precedential value of this judgment shall extend to other Supreme Court and High Court judgments is not affected by the fact that the penalty imposed was simply of Rs. 1. Through its verdict, the SC has upheld itself as sacrosanct, while producing a chilling effect on freedom of speech and expression in the country.

Concluding Remarks

It is surprising how the judiciary continues to employ the weapon of contempt to silence free speech, even when Britain, the country from where we have adopted the present law, abolished ‘criminal contempt’ back in 2012. A series of judgments of the Supreme Court have shown that the grounds for holding contempt under the Act of 1971 are vague. Earlier in August, 2020, N. Ram, Arun Shourie, and Prashant Bhushan moved the court on the constitutional validity of the Act – even after weeks, the petition is yet to be listed. The author, hence, concludes that criminal contempt that punishes fair criticism of the judiciary has no place in a democracy that cherishes free speech as one of its core values.

The Author is a student at National Law University Delhi.