‘Not Fair Criticism’: SC Holds Bhushan Guilty of Contempt of Court

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The Supreme Court on Friday, 14 August held that Prashant Bhushan is guilty of contempt of court in its suo motu contempt case against the activist lawyer.

An apex court bench of Justices Arun Mishra, BR Gavai and Krishna Murari has made the finding regarding Bhushan’s tweets in about current Chief Justice of India SA Bobde and the Supreme Court itself.

"“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing.In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”" - Supreme Court judgment

The judges have not decided the punishment for the offence, and will hear Bhushan on the matter of sentencing on 20 August, after which they will pronounce their decision on the same. The maximum punishment under the Contempt of Courts Act 1971 is six months’ imprisonment.

However, this Act is not binding on the Supreme Court, which has significant discretion when it comes to contempt against itself, meaning the punishment could include imprisonment and/or a fine and even other consequences as well, such as stripping of professional status.

Twitter, which had been issued notice in the case, has been let off since it had no control over the tweets, and suspended them after the court raised its concerns.

Also Read: SC Allows Bhushan, Shourie to Withdraw Plea Against Contempt Law

WHAT IS THE CASE ABOUT?

The contempt case in question was initiated suo motu by the Supreme Court against Bhushan on 21 July. Justices Arun Mishra, BR Gavai and Krishna Murari took up the case and conducted a brief hearing on 22 July, adjourning the case till 5 August so that Bhushan could prepare his reply.

The contempt case relates to the following tweets by Bhushan on his Twitter handle:

  1. On 27 June, he wrote: “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

  2. On 29 June, he shared an image of CJI Bobde sitting on a Harley Davidson superbike, commenting that the CJI was sitting on a bike belonging to a BJP leader without a mask or helmet, at a time when the Supreme Court was “denying citizens their fundamental right to access Justice” because it was in lockdown mode.

During the first hearing in the case, the judges said:

"“We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.”"

As regards Bhushan’s tweet about CJI Bobde and the photograph of him on the bike, the court has held that this is “undoubtedly false, malicious and scandalous”, as the court was on vacation at the time, and in any case, despite the coronavirus lockdown, the court had been holding video conferencing hearings for cases, including cases in which Bhushan was a lawyer, as well as a litigant.

The tweet therefore “has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice,” according to the judgment.

As regards the other tweet, the court has held that it “has the effect of destabilising the very foundation of this important pillar of Indian democracy.” By claiming that the court has played a role in the destruction of democracy, the judges held that this tweet “undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.”

The court also held that the fact that the tweet could reach millions of people had to be taken into account when deciding if it was made in good faith.

Warning of the consequences of people losing confidence in the Supreme Court – the epitome of the Indian judiciary – and of judges getting an impression that they will not be protected from malicious attacks, the court held that such attempts to attack the highest judiciary of the country “should be dealt with firmly.”

"“No doubt, that it may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. However, when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand firmly.”"

According to the judgment, if such an attack is not dealt with appropriately, it can affect “the national honour and prestige in the comity of nations.”

Also Read: In Reply to Contempt Case, Bhushan Offers Detailed Critique of SC

HOW HAD BHUSHAN DEFENDED HIMSELF?

Bhushan filed a detailed affidavit in the apex court defending his tweets. In it, he explained the context behind his tweets, and why the comments made by him were his bona fide opinion. On that basis, he argued, he was entitled and in fact obligated to put forward his criticism, as it is the duty of every citizen to criticise public institutions and functionaries if they genuinely believe there is something wrong with them.

"“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.”" - Prashant Bhushan’s affidavit to the Supreme Court

While Article 19(2) of the Constitution recognises contempt as a ground for restriction of freedom of speech, he noted that this has to be a ‘reasonable restriction’. Preventing citizens from forming and expressing a bonafide opinion about a constitutional institution and discussing this in the public domain to build public opinion for reform, is not a reasonable restriction, he argued.

He also cited case law from the Supreme Court itself which said the power of contempt was to be used sparingly, not to stifle criticism. He then showed how the aspect of contempt of court in this case against him – scandalising the court or lowering its authority – had been abolished in many countries including the United Kingdom, whose contempt law formed the basis of the same in India.

The affidavit concluded with a detailed list of controversies at the apex court during the tenures of the last four CJIs – JS Khehar, Dipak Misra, Ranjan Gogoi and SA Bobde.

During the second hearing in the case on 5 August, Bhushan’s lawyer Dushyant Dave gave a spirited defence, setting out these points and making several powerful criticisms of the court, including some of the controversies in recent years, including the sexual harassment allegations against former CJI Ranjan Gogoi and his nomination to the Rajya Sabha post-retirement.

Also Read: In Bhushan Contempt Hearing, the Unsaid is Finally Said to SC

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