DJN Blogs

Abhinav Chauhan, Law Graduate from Faculty of Law, Delhi.
Date: 18.11.2020
PRASHANT BHUSAN'S CASE ANALYSIS
INTRODUCTION
Judiciary is the
most important pillar of any civilized society and indispensable organ of
administration in a modern set up. In a democracy governed by the rule of law,
just and fair trial, freedom of speech and expression are most valuable assets
available to every citizen. However, freedom of speech must be exercised within
reasonable limits as envisaged under the Constitution. It must neither hinder
nor put a stumbling block in the smooth, fair, impartial trial and
administration of justice, if someone does this than it will amount as contempt
of court and is punishable in law, since it may directly or indirectly affect
administration of justice and lower the reputation and prestige of judiciary in
the eyes of the public.
The Constitution
of India explicitly recognizes these facts in three of its provisions viz. Article
19(2), 129 and 215.
Article 19 –
Protection of certain rights regarding freedom of speech etc
(1) All citizens
shall have the right
(a) to freedom of
speech and expression;
(b) to assemble
peaceably and without arms;
(c) to form
associations or unions;
(d) to move freely
throughout the territory of India;
(e) to reside and
settle in any part of the territory of India; and
(f) omitted
(g) to practise
any profession, or to carry on any occupation, trade or business
(2) Nothing in sub
clause (a) of clause (1) shall affect the operation of any existing law, or
prevent the State from making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the said sub clause in
the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or
morality or in relation to contempt of court, defamation or incitement to an
offence
Article 129 – Supreme
Court to be a court of record The Supreme Court shall be a court of record and
shall have all the powers of such a court including the power to punish for
contempt of itself.
Article 215 – High
Courts to be courts of record Every High Court shall be a court of record and
shall have all the powers of such a court including the power to punish for
contempt of itself.
PRASHANT BHUSHAN CONTEMPT CASE
Advocate Prashant
Bhushan posted two tweets on twitter on 27th June, 2020 and 29th
June, 2020 respectively.
“CJI rides a 50
Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask
or helmet, at a time when he keeps the SC in Lockdown mode denying citizens
their fundamental right to access justice!”
“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.”
Supreme Court upon
observing that contempt petition filed by Adv. Maheshwari lacks prior sanction
of the Attorney General of India took Suo motu cognizance of the tweets posted
by the Adv. Prashant Bhushan. The bench issued notice to the Contemnors to file
their reply and also issued notice to the Attorney General to assist the court.
REPLIES
In his reply regarding
his tweet dated 29.06.2020, Prashant Bhushan stated that the tweet was made to
underline his anguish at the non-physical functioning of the Supreme Court for
the last more than 3 months, as a result of which fundamental rights of the
citizens such as those in detention and others having serious and urgent grievances
were not taken up for redressal. Secondly, his intention behind posting the
photo of the CJI riding the bike was to highlight the incongruity of the
situation where CJI keeps the court virtually, in lockdown due to COVID-19 fear
and on the other hand he was seen in a public place with several people around
him without a mask. Thus, he concluded that his expression of anguish to
highlight this incongruity doesn’t amount to contempt of court. If it were so
regarded, then it would be violative of his fundamental right of freedom of
speech and expression as it will be an unreasonable restriction.
Contemnor No. 2
Twitter has stated in reply that it is a global website that provides a
micro-blogging platform to its user for expression of thoughts and to
communicate among themselves. It is just an “intermediary” defined under
section 2(w) of Information Technology Act,2000 and thus it is not the author
or originator of the tweets in question. It has no editorial control on the
tweets and merely acts as a display board. After the order dated 22.07.2020 of
this court, it has not only blocked the access to the tweets in question but
also disabled them.
ANALYSIS
The Court observed
that the trust, faith and confidence of the citizens of the country in the
judicial system is sin qua non for existence of rule of law. An attempt to
shaken the very foundation of constitutional democracy has to be held with iron
hand. The tweet has the effect of destabilizing the very foundation of this
important pillar of the Indian democracy. There is no manner of doubt that the
tweet tends to shake the public confidence in the institution of judiciary. We
are concerned with the damage that is sought to be done to the institution of
administration of justice. In our considered view, the said 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.
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. A
possibility of the other judges getting an impression that they may not stand
protected from malicious attacks, when the Supreme Court has failed to protect
itself from malicious insinuations, cannot be ruled out. As such, in order to
protect the larger public interest, such attempts of attack on the highest
judiciary of the country should be dealt with firmly. No doubt, that the Court
is required to be magnanimous, when criticism is made of the judges or of the
institution of administration of justice. However, such magnanimity cannot be
stretched to such an extent, which may amount to weakness in dealing with a malicious,
scurrilous, calculated attack on the very foundation of the institution of the
judiciary and thereby damaging the very foundation of the democracy.
The summary
jurisdiction of this Court is required to be exercised not to vindicate the
dignity and honour of the individual judge, who is personally attacked or scandalized,
but to uphold the majesty of the law and of the administration of justice. The
foundation of the judiciary is the trust and the confidence of the people in
its ability to deliver fearless and impartial justice. When the foundation
itself is sought to be shaken by acts which tend to create disaffection and
disrespect for the authority of the court by creating distrust in its working,
the edifice of the judicial system gets eroded. The scurrilous/malicious
attacks by the alleged contemnor No.1 are not only against one or two judges
but the entire Supreme Court in its functioning of the last six years. The
tweets which are based on the distorted facts, in our considered view, amount
to committing of ‘criminal contempt’.
JUDGMENT
The court held
that the tweets posted by Contemnor No.1 are based on distorted facts and thus
amounts to committing criminal contempt. As far as Contemnor No.2 is concerned,
we accept that it is only an intermediary and doesn’t have any control on what
user posts. Moreover, it also acted bonafidely by blocking and disabling the
tweets in question. Therefore, we discharge the notice issued to the alleged
Contemnor No.2 and hold alleged Contemnor No.1 guilty of committing criminal
contempt of this court. Before pronouncing the sentence, the
court also had given Bhushan three chances to provide with an apology. Still,
Bhushan, through his own statement and his lawyers, completely stood with his
tweets saying that apology at this stage would amount to “contempt of his
conscience”. He urged that the tweets should only be seen as “constructive
criticism”. Bhushan’s lawyer requested the court to view the tweets as fair
criticism, which was made with the point of view of the judiciary’s betterment.
But the court rejected the argument that the tweet has not interfered with the
administration of justice. Along with that, Attorney General KK Venugopal also
requested the Supreme Court not to punish Prashant Bhushan. Thus, the court
sentenced Contemnor No.1 with a fine of Re 1/- (which is to be deposited by
15.09.2020), failing which he shall undergo simple imprisonment for a period of
3 months and shall also be debarred from practicing in this court for a period
of 3 years.
CONCLUSION
While
hypersensitivity and peevishness have no place in judicial proceedings vicious
stultification and vulgar debunking cannot be permitted to pollute the stream
of justice. Indeed under our Constitution there are positive values like right
to life, freedom of speech and expression, but freedom of speech and expression
does not include freedom to distort the reputation of the Courts. The contempt
power in a democracy is only to enable the court to function effectively, and
not to protect the self-esteem of an individual judge. The foundation of the
judiciary is based on the trust and the confidence of the people in its ability
to deliver fearless and impartial justice.
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