Lawyer-activist Prashant Bhushan cannot be convicted and sentenced for contempt of court for the following 10 reasons based on facts and the law.
Tweet of Bhushan on June 27: “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.”
The allegation is that democracy was destroyed by the government, it is not against the judiciary. The comment is that the role of the Supreme Court in this destruction will be marked by history and, more particularly, by the role of the last for Chief Justices of India (CJIs). There is no direct accusation, but indirectly Bhushan commented that it (SC) has a role in destruction, without any details and specific allegation against any CJI.
There was no allegation of corruption. It’s at the most an adverse and critical comment. Bhushan did not write history will mark the vital role of SC, the court should not have read ‘vital’ into the tweet and concluded it as contempt. This is unfair because it is not truthful. The truth of it should have been ascertained to say whether it was fair or not. Out of judgements given during six years, even if there are four or five judgements that went against democratic institutions, the comment cannot be termed as unfair.
Second tweet on June 29, while sharing 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”.
It is true that the CJI was sitting on a superbike, without a mask and helmet. As he was not driving it, he need not wear a helmet. Bhushan did not say the CJI was driving. He just said ‘sitting’ on a bike. He regretted not having noticed that the bike was on stand. Bhushan correlated this sitting with the activity of the SC “denying” citizens their fundamental right to access to justice because it was in lockdown. There is no allegation as it was rightly said that there was no access to justice because of lockdown mode.
Though some feel that this could have been avoided, the least, it could be is an unreasonable comment, but it cannot be criminalised as defamation or spreading hate and contempt.
The SC in its judgment, declaring Bhushan guilty of contempt, has rightly stated that it heard 879 sittings and 12,748 petitions and judged many cases during the lockdown period through virtual hearing. Bhushan’s tweet is still true to the extent that several thousands of cases of fundamental rights are yet to be heard because of the lockdown. There was neither defamation nor degradation of the judiciary.
The view of the SC that these tweets brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution of the Supreme Court, is not within the four walls of the ‘definition of defamation’.
Prashant Bhushan cannot be convicted or punished for the following legal reasons:
Duty to develop spirit of inquiry and reform: The citizens’ spirit of inquiry should be protected by constitutional institutions, especially by the judiciary, because the Constitution of India’s Article 51A(h) mandates that “every person has a duty to develop the scientific temper, humanism and the spirit of inquiry and reform”. If every critical analysis is threatened with prosecutions and penal sentences, how do citizens perform this duty?
Freedom of Expression: The Supreme Court has helped the freedom of speech to survive in this country against suppressive actions of both Legislature and Executive, and similarly the freedom of speech of those who criticise the judiciary also needs to be encouraged.
The fundamental right, as envisaged in Article 19(1)(a), gives every citizen the right to freedom of speech and expression subject to reasonable restriction by law, (not by executive or courts) on the grounds listed in Article 19(2), which includes contempt of court. But the fair criticism of a judicial act is not contempt, as per Section 5.
Fair criticism is not contempt: The Contempt of Court Act 1971, Section 5, says: Fair criticism of judicial act not contempt. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. This Section, read with Article 19(1)(a) of the Constitution of India, deserves preference. If there is any doubt, one can read the Preamble of the Constitution that highlighted the vow of people to constitute India to secure ‘liberty’ of expression for them.
Comment on merits of the case: Section 499 of the Indian Penal Code, which defined crime of defamation, says in the fifth exception: Merits of case decided in Court or conduct of witnesses and others concerned.It is not defamation to express in good faith any opinion, respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his/her character appears in that conduct, and no further. If any critique makes an adverse comment on the merits of a judgment, it is not even considered as criminal defamation. Therefore, it is highly arbitrary to consider a comment, which is not a criminal defamation, as ‘contemptuous’.
Interference: There is another fair rule in Section 13 of the Contempt of Court Act which says that even if some comment is assumed to be contempt, unless it substantially interferes or tends to substantially interfere, a sentence cannot be imposed. Not mere assumed interference and simple interference, but substantial interference is needed to impose a penalty.
Section 13 (a) says: no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.
This Section is highly unreasonable because of the ambiguity of ‘substantially’, ‘interference’ and ‘tends’ to -- all are wide open -- which delegate excessive authority to ‘court’ without any guidance. Though restrictions can be imposed on freedom of speech under Article 19(2) by law on the ground of ‘contempt of court’, the restriction with ambiguous and unguided power is ‘unreasonable’ and hence unconstitutional.
Truth of statement: The Contempt of Court Act was amended in 2006 to introduce Section 13(b), which says: (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence, if it is satisfied that it is in public interest, and the request for invoking the said defence is bona fide. If the judges feel that their esteem has suffered by circulation of truth by any media, it is not punishable as contempt. Public interest is a major factor that protects the truth exposed through freedom of speech, even if it embarrasses the judges.
Apology: Section 12 says that contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs 2,000, or with both: Provided that the accused may be discharged, or the punishment awarded may be remitted on apology being made to the satisfaction of the court.
Explanation—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.
Bhushan’s regret deserves consideration. This clause gives unreasonable and enormous power to the court to decide according to its ‘satisfaction’, that is accorded unguided discretion which might lead to arbitrary conclusions. The language used in this clause has to be considered (‘may be punished’, ‘may be discharged’, ‘may be remitted on apology’) as far as sentencing is concerned.
When it comes to the apology, the clause says ‘apology shall not be rejected’, if the accused makes it bona fide’. These are checks and balances on the power of the court to punish. This power cannot be arbitrarily exercised. It is against Indian constitutionalism.
In the judgement of P N Duda v P Shiva Shankar 1987, which considered the comment of Shiv Shankar that the SC was biased in favour of the rich and against the poor, was held as not contemptuous. This remained the law of the land declared by the SC. Prashant Bhushan made some comments, as he believed that these could not be contemptuous, as per the Shiva Shankar case. This means there is no definition of crime of contempt of court that could cover Bhushan’s comment as per existing law. Hence, he is protected under Article 20(1) of the Constitution, a fundamental right that protects a person from ex-post-facto-law.
Dr M Sridhar Acharyulu is former Central Information Commissioner. Views are personal.