 is entitled to make a fair criticism of a judge, judiciary and its functioning. However, the right under Article 19(1) is subject to restriction under clause (2) of Article 19.){kind=link}
In a well reasoned and elaborate 108 page judgment dated 14.8.2020, the Hon’ble Supreme Court convicted Mr. Prashant Bhushan for criminal contempt of Supreme Court, which I analysed in detail in my first article on this topic. In that judgment the Court analysed the entire law of contempt in the light of freedom of speech and held 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.
Read Also: Law of Contempt Versus Independence of Judiciary Case Analysis: Prashant Bhushan
It is well settled that a citizen while exercising right under Article 19(1) is entitled to make a fair criticism of a judge, judiciary and its functioning. However, the right under Article 19(1) is subject to restriction under clause (2) of Article 19. If a citizen while exercising his right under Article 19(1) exceeds the limits and makes a statement, which tends to scandalize the judges and institution of administration of justice, such an action would come in the ambit of contempt of court. If a citizen makes a statement which tends to undermine the dignity and authority of the Court, the same would come in the ambit of ‘criminal contempt’. When such a statement tends to shake the public confidence in the judicial institutions, the same would also come within the ambit of ‘criminal contempt.
In the judgment dated 14.8.2020 the Court found both the tweets of Mr. Prashant Bhushan factually false, malicious and scandalous and amounting to criminal contempt. Regarding first tweet, the Court said that making such wild allegation thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous. It 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. The Court did not accept the contention of Mr. Prashant Bhushan, that the said statement was a bona fide criticism made by him on account of his anguish of non functioning of the courts physically. The Court gave data of cases dealt by the Hon’ble Supreme Court in this period.
Regarding baseless allegations in the second tweet about destruction of democracy by 4 Chief Justices without any material the Hon’ble Supreme Court said:
“67. It is common knowledge, that the emergency era has been considered as the blackest era in the history of Indian democracy. 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 more particular role in the said destruction.
68. There cannot be any manner of doubt, that the said tweet is directed against the Supreme Court, tending to give an impression, that the Supreme Court has a particular role in the destruction of democracy in the last six years and the last four CJIs had a more particular role in the same. It is clear, that the criticism is against the entire Supreme Court and the last four CJIs. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it.”
Indian judiciary is considered by the citizens in the country with the highest esteem. The judiciary is considered as a last hope when a citizen fails to get justice anywhere. The Supreme Court is the epitome of the Indian judiciary. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court. Even the contemnor himself admitted in this judgment that the Supreme Court of India is known as the most powerful court in the democratic world, and often an exemplar for courts across the Globe At this stage it necessary to have a look into some tweets of Mr. Prashant Bhushan.
After judgment dated 14.8.2020, the Court gave an opportunity to Mr. Prashant Bhushan to tender apology if he so desires, but instead he filed an affidavit dated 20.8.2020 in support of his stand making further allegations in detail against retired and sitting judges of the Hon’ble Supreme Court and not only given that affidavit in media but also started giving interviews in media to support his stand in the matter which is subjudice before the Hon’ble Supreme Court against all norms, ethics and the law laid down by the Hon’ble Supreme Court in various judgments. Mr. Prashant Bhushan was behaving as if he wanted judgment from media and public and not from Court and he went to the extent to self glorify by comparing himself with Mahatma Gandhi.
The statements made by Mr. Prashant Bhushan in his affidavit were so scandalous that his own counsel Mr. Dushyant Dave while arguing for him on 5.8.2020, refused to read those averments by saying that the same would further malign the reputation of this Court. Another counsel of the contemnor Mr. Rajeev Dhavan also stated that wide publication of supplementary statement dated 24.8.2020 in media and to give interview in media was not fair on the part of the contemnor.
Shri K.K. Venugopal, learned Attorney General for India, who himself filed a contempt petition against Mr. Prashant Bhushan in 2019, being highest law officer of country, very assertively requested Court not to impose any sentence on Mr. Prashant Bhushan. However when controverted with various statements made by the contemnor in the affidavit in reply, the learned Attorney General fairly conceded that such statements were not warranted. He suggested that such statements be either withdrawn by the contemnor or should be taken off from the pleadings. He suggested several times to Mr. Prashant Bhushan to withdraw those statements, but Mr. Prashant Bhushan flatly refused. When confronted with the situation that the contemnor was pressing the statement made in the affidavit and was raising a plea of truth as a defence. Attorney General had to fairly state that unless the contemnor withdraws the said statements, in view of the provisions of Section 13(b) of the Act, the statements cannot be taken off. Learned Attorney General was fair enough to state that insistence on the part of the contemnor to press into service various objectionable statements made in the pleading was not warranted and also not justifiable. He further stated that such statements, which were also concerning various sitting and retired judges of this Court, including the past and present Chief Justices, were totally unjustifiable, specifically so when the retired or sitting judges were not in a position to defend themselves. He further submitted that no verdict could be passed without hearing such Judges, and as such, the process would be endless. He submitted that such a defence cannot be looked into. From the tenor of the submission made by the learned Attorney General, it was apparent that the learned Attorney General was at pains due to the statements made by the contemnor in the affidavit.
The Court held that for considering the truth as valid defence there is a twin requirement. First such a defence is in public interest and second the request for invoking the said defence is bona fide. In the judgment dated 31.8.2020, the Court held that:
“27. One of the reasons why we hold so is that though the tweet is of two lines, the affidavit in reply refers to series of allegations made by the contemnor with regard to the functioning of a large number of retired as well as sitting Judges including the Chief Justices as to their role on the judicial as well as on administrative side. If the averments are considered for taking truth as a defence, it would amount nothing else but the aggravation of the contempt.
28. We are of the view that, in the circumstances, the defence taken cannot be said to be either in the public interest or bona fide one. On the contrary, it is more derogatory to the reputation of this Court and would amount to further scandalizing and bringing administration of justice in disrepute, in which the common citizen of this country has faith and approaches this Court as a last resort for getting justice.
29. He averred that this Court had surrendered to the majoritarian executive and that when majoritarian executive was acting in tyranny, the Supreme Court has not been able to stand to correct the executive.
30. The averment in the affidavit also referred to formation of the Benches by the Chief Justice. There is reference to various cases dealt with by 9 Judges and 5 Judges of this Court and has casted aspersions on the entire justice delivery system and on a large number of Judges.
31. He has further averred with respect to the withdrawal of the case which was filed questioning the decision of rejection of impeachment motion moved against the then Chief Justice. He has also referred to various matters pending adjudication before this Court and also adversely commented on the functioning of this Court. He has raised eyebrows on the Ayodhya verdict and blamed this Court.
32. After going through the various averments made in the affidavit in reply for supporting truth as defence, we are of the considered view that the defence taken is neither in the public interest nor bona fide one, but the contemnor has indulged in making reckless allegations against the institution of administration of justice. As referred by the learned Attorney General the averments are based on political consideration, and therefore in our view cannot be considered to support the case of the contemnor of truth as a defence.
33. The allegations made are scandalous and are capable of shaking the very edifice of the judicial administration and also shaking the faith of common man in the administration of justice.”
After referring various case laws the Hon’ble Court further held that purging oneself of contempt can be only by regretting or apologising in the case of a completed action of criminal contempt. In case of sentence of fine, the contemnor can pay the fine and continue to persist with contemptuous conduct again and again. Something more is required to purge the criminal contempt. Even a statement of apology is not enough to purge the contempt. The Court has to be satisfied as to the genuineness of the apology to make an order that contemnor has purged himself of the contempt. Before contempt is purged, the advocate could suffer the consequences of Rule 11 of the Rules which postulates that in case the advocate has been found guilty of contempt of court, his authority to act or plead in any court stands snapped.
One of the main contention of the contemnor was that he is a person of very good repute, he is an activist and has successfully fought several public interest litigations and his contribution towards society is very high. In respect of this it is necessary to mention that several controversies revolve around Mr. Prashant Bhushan which invited attention of media, a few of those are:
(i) Filing suspect PILs: There are allegations against Mr. Prashant Bhushan that he shoots off anonymous complaints listing charges against individuals/ organizations and then uses these to file PILs. Once he was pulled up by the then Chief Justice of India Hon’ble Mr. Justice T S Thakur also for running a PIL center.
(ii) In Jain Hawala Case journalist Vineet Narain levelled allegations against Mr. Prashant Bhushan to derail the matter.
(iii) In Himachal land scandal-1 Mr. Prashant Bhushan was alleged to secure property by filing false affidavit to secure domicile of Himachal.
(iv) In Himachal land scandal-2 Kumud Bhushan Educational Society, headed by Prashant Bhushan was alleged to buy tea-estate of 122 kanals (15.25 acres) land in Kangra district with condition to set up an educational institution within 2 years, whereas there was total ban on the sale of tea gardens in the state to non-agriculturists at that time and no school or college was established.
(v) In stamp duty evasion case in Allahabad a 20 crore worth house of father of Mr. Prashant Bhushan in the Civil Lines area of Allahabad was grossly undervalued to avoid stamp duty and a fine of Rs 1.3 crore was slapped on Bhushans.
(vi) In Noida Farm House Case allegations against Bhushans are to declare themselves as agriculturists to purchase 10,000 sq m farmland plots in Noida.
(vii) In Arundhati Roy case the Supreme Court suo moto issued contempt notice in 2002 against Prashant Bhushan, Medha Patkar and Arundhati Roy for blocking the road leading to the apex court and hurling abuse on the court and judges. However, the court accepted the apology of Prashant Bhushan and Medha Patkar through their counsels, Ram Jethmalani and Shanti Bhushan. Arundhati Roy was sent to jail as she refused to apologise.
(viii) In Burhan Wani controversy Mr. Prashant Bhushan stated that most people suspected that Wani was killed by the security forces in a fake encounter. This was the line being pushed by separatist groups in the valley.
Recently in the case of Tehseen Poonawalla v. Union of India & Another, (2018) 6 SCC 72, the Hon’ble Supreme Court noted that the misuse of public interest litigation and found that it was a serious matter of concern for the judicial process. It had further found that the Court is flooded with misdirected petitions purportedly filed in the public interest which, upon due scrutiny, are found to promote a personal, business or political agenda. It was further observed that such petitions pose a grave danger to the credibility of the judicial process. It was further observed that this has the propensity of endangering the credibility of other institutions and undermining public faith in democracy and the rule of law. The Court cautioned that the agency of the Court is being utilized to settle extra judicial scores. The court further held that:
“53. The tweet has been made by the lawyer who has the standing of 35 years and who is involved in several public interest litigations. However, merely because a lawyer is involved in the filing of the public interest litigation for the public good it does not arm him to harm the very system of which he is a part. Though expectation from an ordinary citizen may be different, the duties and expectations that are expected from a lawyer of long standing are on higher side. An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer. When the criticism turns into malicious and scandalous allegations thereby tending to undermine the confidence of the public and the institution as a whole, such a criticism cannot be ignored.”
On the sentence it was argued by Dr. Dhavan, learned senior counsel for the contemnor that in case the contemnor is sent to the imprisonment, he will attain martyrdom, and he also should not be debarred from the practice. He further stated that the Court could not pass an order debarring the contemnor from practicing unless a prior notice was issued to him and an opportunity of hearing was given in that regard. On this Court held that:
“We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance and ego, which has no place to exist in the system of administration of justice and in noble profession, and no remorse is shown for the harm done to the institution to which he belongs. At the same time, we cannot retaliate merely because the contemnor has made a statement that he is neither invoking the magnanimity or the mercy of this Court and he is ready to submit to the penalty that can be lawfully be inflicted upon him for what the Court has determined to be an offence. He has even invoked the Father of the Nation, Mahatma Gandhi’s statement, which was made by Mahatma Gandhi at the conclusion of the trial against him.
The act committed by the contemnor is a very serious one. He has attempted to denigrate the reputation of the institution of administration of justice of which he himself is a part. The contemnor not only gave wide publicity to the second statement submitted before the Court on 24.08.2020 prior to the same being tendered to the Court, but also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of this Court. If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe puishment, we are sentencing the contemnor with a nominal fine of Re.1/-(Rupee one).”
In both the judgments dated 14.8.20 and 31.8.2020, the Hon’ble Supreme Court held everything against Mr. Prashant Bhushan, who is facing certain other contempts also, even then by showing magnanimity the Court did not impose any penalty on him but left him with the fine of Re.1 only, on which people of the country started asking whether this fine of Re.1 for contempt of the most powerful court of the democratic world would remain as a precedent for all future contempts even by ordinary citizens or it is specific for a particular person only.
The Author is Advocate On Record, Supreme Court of India