Kedar Ganesh Dhargalkar
Adv. Balasaheb Apte College of Law, University of Mumbai
The recent judgement of the Apex Court in the Prashant Bhushan ‘Contempt of Court’ case, seems to have caused a stir amongst the legal fraternity, dividing it into two factions, with the parameters of ‘scandalizing the court’, being the bone of contention between both camps. On 14th August, 2020, the Supreme Court convicted Mr. Prashant Bhushan, a learned Senior Advocate, on the charge of Contempt of Court. Subsequently, there was a serious discussion and deliberation regarding the correctness of this decision.
This article seeks to argue that the court did no wrong and focuses on demonstrating the ulterior motives of the defendant which can be seen unfolding with the aim to influence the psyche of judges by highlighting the dangers of negative public opinion in case of a judgment that goes directly or indirectly in favour of the government.
Analysing the Contemptuous Tweets and Identifying the Bigger Class-problem:
It is submitted that Mr. Bhushan and the supporter of his cause, represent a bigger class-problem in the society. A problem that emanates primarily from the blatant use of the court as a tool to challenge, impede and thwart, each and every action of the government. In such cases, if the court gives a judicious judgement in favour of the government, then instead of giving a healthy critique on the merits of the case or of the administration, those characters drag the dignity of courts into the political arena by ascribing them with political favouritism or party partisanship. Such attacks are a calculated for creating narratives that, everything that the government does is incorrect and is to be struck down or stopped by the court.
In the instant case, regarding the contemptuous tweets, the court has observed 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.’
While highlighting this malicious ‘scheme’, the court took into consideration the most probable impression, which those tweets would have, on the mind of a common man. In the case of the first tweet, the court noted that, the allegation made about the Chief justice, was during the vacation period of the court. Not only is the learned judge allowed to do what he has been alleged with, but the attempt of drawing a parallel between the act of the Chief Justice and the alleged denial of rights by the Supreme Court is not a bonafide-criticism and is highly contemptuous. The court further noted that, the vacation benches were running smoothly in that period and were dispensing their duties, thereby the accused has ‘made such a scandalous and malicious statement having himself availed the right of an access to justice during the said period…’. This has dragged the administration of justice into doubt and thus is contemptuous.
Regarding the second tweet, the court opined that, ‘The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had a more particular role’. As malafide is attached to the role of concerned chief justices as ‘the masters of the roster’, the said tweet attaches malafide to the judicial motives of not just the four chief justices but also their brethren, who have allegedly contributed to the fall of democracy, by being part of those constitutional benches. Thereby the second tweet shatters the public faith in the fairness of administration of justice.
Breaking down the ‘Fair Criticism’ Argument:
The constitutional patriots supporting Mr. Bhushan, champion his right to free speech and criticize this judgement on the ground that, his tweets are a fair criticism of the institution and thereby Mr. Bhushan’s right to post that content, is protected by the shield of Article 19(1)(a) of the Constitution, which gives the fundamental right to free speech and expression. The bench has addressed this issue by differentiating between constructive criticism and hostile criticism, which had been recognized previously, in the case of Dr. D.C. Saxena v. Hon’ble the Chief Justice of India[i], wherein the court had held that, “…critics are instruments of reform but not those actuated by malice but those who are inspired by public weal….. constructive public criticism even if it slightly oversteps its limits thus has fruitful play in preserving democratic health of public institutions…. hostile criticism of judges as judges or judiciary would amount to scandalizing the Court….imputing partiality, corruption, bias, improper motives to a judge is scandalisation of the court.” Before concluding upon the aspect of ‘scandalizing’, the learned judges further buttressed their hypothesis by referring to the Arundhati Roy judgement[ii], wherein the court had acknowledged the consideration of ‘good faith’ and ‘surrounding circumstances’ in a contempt case, by stating that, “fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt, if it is made in good faith and in public interest. For ascertaining the 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 regarding which the comments are made and the intended purpose sought to be achieved.” It is discernable, thus, that the bench has indulged in a reasonable interpretation upon the contempt involved and has considered the ‘extent of publication’ for consideration of ‘surrounding circumstances’ and it has also left a room for free breath of constructive criticism of the judges and their judgements, one that isn’t a calculated attack to malign the image of the judiciary and the one that is made in good faith.
Considering the micro-messaging nature of the platform, Mr. Bhushan had pleaded that the provisions of contempt, cannot be extended and applied to a couple of comments, as they are a ‘trifling or a venial offence’[iii]. The court has cleared its stance on this issue by analyzing the extent of Section 2(c) of the Contempt of Courts Act, 1971, which defines ‘criminal contempt’ and while re-recognizing its wide amplitude, the court held that, “a tendency to scandalise the Court or tendency to lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt.”[iv] The court also diligently referred to the E.M. Sankaran Namboodripad v. T. Narayanan Nambiar judgement[v], for elucidating in detail, what exactly would ‘scandalizing the court’ entail. The minor issue of suo-motu issuance of contempt notice, without the Attorney General’s permission, was dealt with the court, by explaining that Section 15 of the Contempt of Courts Act, is not the source of power of the court to issue a notice for contempt and it can exercise its inherent powers to issue a notice for contempt. The other issue of transfer of petition from administrative side to judicial side by the registry was acknowledged by the former, and thus the impugned transfer cannot be a ground for raising doubt over the maintainability of the petition in front of a certain bench.
While recognizing the serious damage to the national honour, prestige, or the majesty and dignity of the courts, in light of the malicious motives of the tweets, the court reiterated the view of Beg CJ., as he then was, in Re. S. Mulgaokar, wherein he had held that, “when the question is of injury to an institution, such as the highest Court of justice in the land, one cannot overlook its effects upon national honour and prestige”[vi]. The court also pointed out the purpose of exercising such a special jurisdiction of punishing for contempt, by citing the relevant paragraphs of Vinay Chandra Mishra Case[vii], where the court had held ‘impairing the sense of confidence or creating distrust in the faith, which the popular mind has in judiciary’ as the purpose for invoking the ‘contempt jurisdiction’ of the Apex Court. This highlights the largescale nationwide impact of the said tweets, which warranted the use of such jurisdiction.
The court has made a special reference to the P.N.Duda case[viii], where the bench had observed that:
“Judgments can be criticised; the motives of the judges need not be attributed, it brings the administration of justice into deep disrepute.”
This little known and undebated observation of the bench is in fact, the strongest pillar upon which rests the justification for the impugned contempt of court. It distinguishes between a fair comment upon the court’s judgements or upon the frailties of judges from a ‘gross and/or unfounded attack on the judges that is calculated to obstruct or destroy the judicial process’[ix]. The former can be categorized as ‘….a systemic correction through socially-oriented reform initiated through constructive criticism…’[x]and is protected by Article 19(1)(a), while the latter is ‘a scurrilous, offensive, intimidatory or malicious attack on the judges, that is beyond condonable limits’[xi]against which, the remedy of contempt lies at the disposal of the court. Such kind of contempt can be said to be of the highest order as it strikes squarely at the institutional integrity of Supreme Court and of the Chief Justice of India.
The said tweets, unquestionably drag the court’s motives into a political arena and tag their impartiality with a possibility of governmental favouritism or rather a ‘political allegiance’. This is not only a ‘vilificatory criticism of a Judge functioning as a Judge even in purely administrative or non-adjudicatory matters, that amounts to ‘criminal contempt’[xii], but primarily, it points to ‘a design to bring about results which must damage confidence in our judicial system and demoralize Judges of the highest court by making malicious attacks and anyone interested in maintaining high standards of fearless, impartial and unbending justice will feel perturbed.’[xiii]
Knocking down the Unwarranted Politicization:
Conclusively, the court’s judgement effectually rests upon broader questions of law which motivated it to analyse the exact impact of the societal elements, which people like the convict represent. The extract of his tweets unequivocally point out at the grievance which Mr. Bhushan has against the working of the ruling party. Being a designated senior counsel Mr. Bhushan was well-aware of the contemptuous nature of his tweets and still instead of taking a legal recourse against the same, the convict chose to post baseless allegations upon the court in the public domain. The intentional recourse of publicly expressing an unfounded opinion, is comparable to throwing mud on the judicial dignity, just to see what sticks in public opinion, thereby fulfilling his political motives and here lies the ‘mens rea’ of this crime which make it cognizable. The words of those tweets were explicitly targeted with an objective of politicizing the court’s institutional integrity and confusing the common public at large about the impartiality of its decisions.
The court showed utmost magnanimity by giving the convict time for issuing an apology. His refusal to do the same, dictates his direct intention of causing a distrust and dilemma in the popular mind, by putting unsubstantiated claims on the social media, which ensures a maximum readership of his demoralizing narrative. The broader scheme of threatening the judiciary with consequences of an outrageous public opinion in cases of not abiding to an anti-governmental narrative has been exposed. The court has duly recognized it and the contours of contempt are set accordingly to curb such tendencies in the society.
REFERENCES:
[i] Dr. D.C. Saxena v. Hon’ble The Chief Justice Of India (1996) 5 Scc 216
[ii] Arundhati Roy (2002) 3 Scc 343
[iii] Re. S. Mulgaonkar (1978) 3 Scc 339
[iv] Supra note 1
[v] E.M. Sankaran Namboodripad Vs. T. Narayanan Nambiar (1970) 2 Scc 325
[vi] Supra note 3
[vii] Vinay Chandra Mishra In.Re. (1995) 2 Scc 584
[viii] P.N.Duda V. P. Shiv Shanker (1988) 3 Scc 167
[ix] Supra note 3
[x] Krishna Iyer, J. In Baradakanta Mishra v. Registrar Of Orissa High Court & Another (1974) 1 Scc 374
[xi] Krishna Iyer J. Supra note 3
[xii] Supra note 10
[xiii] Supra note 3
The views are personal only.
