“Ethics is knowing the difference between what you have a right to do
and What is right to do.” -Potter Stewart
In India everything was done to ensure that judiciary can be made as independent as possible by the framers of Constitution of India. Further, the Constitution of India very beautifully entails the concept of separation of powers which ensure smooth functioning of government. Separation of power is the key element of a successful democracy. This concept helps each organ of government i.e. Legislative, Executive and Judiciary to perform their roles efficiently. However, India doesn’t outrightly follows this principle, but we have made some modification by introducing a system of check and balances as granting an absolute independence to the organs might result in arbitrary use of these powers. So, it is evident that judiciary was considered as an organ of great importance the framers of our constitution.
Key Issue- Whether or not tweets by Mr. Prashant Bhushan really come under the statutory provisions regarding contempt of court in Contempt of Courts Act, 1971.
What is Contempt?
Contempt in simple words is an act which cause hindrance in administration of Justice. Contempt has been categorically defined in Contempt of Courts Act, 1971. It is pertinent to note that fair criticism of the Judiciary doesn’t amount to contempt of court as provided in Section-5 of Contempt of Court Acts. Further, Section-13 of the Act provides that no statement in interest of public or not interfering with administration of justice can be considered as contempt of court.
Contempt is a centuries old concept of Common Law. Initially, concept of contempt was introduced to prevent disobedience towards the King’s order in which King was eventually replaced by the Judges.
In India concept of contempt existed pre-independence and when the Constitution of India was adopted contempt was adopted as a restriction to the freedom of speech and expression. In furtherance Article 129 of the Constitution of India confers power on court to address the issue of contempt of court and punish the person accordingly and corresponding powers regarding contempt are given under Article 215 of the Constitution of India to the High Court. However it was clarified by the Apex Court in Vitusah Oberoi & Ors vs Court Of Its Own Motion 2017 SCC Online SC 1 that Article 215 of the constitution of India cannot be resorted to in the matter of contempt of the superior court for that purpose article – 129 must be utilised. Moreover, today there is separate act which provides statutory backing to the concept of Contempt of court i.e. Contempt of Courts Act, 1971.
Who is Prashant Bhushan?
Prashant Bhushan is an eminent Advocate on record. He is well known for the active support and participation in the movement against corruption in India headed by Anna Hazare well known as the Team Anna or the Janlokpal Bill movement. His area of interests are Human Rights, Environmental Protection and Accountability of Public Servant. He also played a significant role in attracting criminal liability in Bhopal Gas Tragedy of 1984.
However, Prashant Bhushan has always been surrounded by criticism for his remarks. He was heavily criticized on opposing the death penalty given to Ajmal Kasab who was the lone terrorist who survived the attack of 26/11 at the financial capital of country i.e. Mumbai. Further in 2011, he stated in a press conference that Armed Special Forces (Special Power) Act to be revoked in Jammu and Kashmir. In response to this he was attacked by a Hindu Militant group who accused him of attempt to break apart the nation. Apart from criticism he has also played vital role in many cases like Bhopal Gas Tragedy in which he successfully accrued the criminal liability of the owner of Union Carbide plant and further challenged the amount of compensation received.
Insights into Prashant Bhushan case
On June 27, 2020- He put allegations on the 4 former CJI accusing them of murdering democracy by imposing an arbitrary emergency nationwide.
On June 29, 2020- In another tweet he commented on current CJI sitting on an expensive bike without wearing a face mask. He further accused Judiciary of denying people right to justice and not itself following the health norms by ICMR.
The Supreme Court took Suo moto cognizance of these tweets as contempt of Court.
Response of Judiciary
On July 22, 2020 the Supreme Court took the Suo moto cognizance of the tweets by Prashant Bhushan and asked him to file a reply by 05.08.2020. And in response to this he filed a 142-page reply affidavit through lawyer Kamini Jaiswal who, in the affidavit mentioned various speeches of eminent judges describing the contempt of court.
On 4th August, 2020 in a contempt proceeding held against Prashant Bhushan court said that “there is a thin line between freedom of speech and the need to protect the dignity of the judiciary as an institution and it sought to balance both.”
On 14th August, 2020 court pronounced Prashant Bhushan guilty of the contempt of court, more precisely said “a serious contempt of Court”.
Explanation by Bhushan
Prashant Bhushan elaborately explained his tweets in a 400 pages affidavit.
While explaining his first tweet he divided it into three parts:
· First part: democracy has been substantially destroyed in India during the last six years.
· Second part: the Supreme Court has played a substantial role in allowing the destruction of the democracy
· Third part: the role of the last 4 Chief Justice’s in particular in allowing it.
He further clarified that, his intention was not to criticize a particular Judge but the whole institution of Chief Justice and Supreme Court. However, to this Supreme court said that this tweet tends to portray a picture in mind that the Supreme Court has destroyed the democracy and particularly last 4 CJIs had allowed it to happen.
While explaining his second tweet he divided it into two parts:
· First part: “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet…”
· Second part: “…at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice.”
It was contended by Mr. Bhushan that his comments were bona fide action of his anguish against judiciary for not performing any physical work for past months. However these contentions were rejected by the Court.
The court said that, first part can be regarded as the criticism made against CJI as an individual but for a layman it gives an impression that CJI is riding expensive bikes and is denying people right to justice. It was further clarified by court that the picture was from time when summer vacation of court was on going and court has heard various matter in its vacation bench so second part of the tweet is factually incorrect.
Flaws in the Judgement
There were some points in the Judgement of In Re Prashant Bhushan, 2020 SCC Online SC 646, decided on 14.08.2020] which raises a major doubt on the accuracy of this judgement. These are:
· Tweets by Prashant Bhushan has not affected the administration of Justice
· The Supreme Court has not commented on how did it brought the tweets within the purview of the definition under Contempt of Courts Act, 1971
· Lastly, Criticism was by Mr. Prashant Bhushan was not regarding any Judicial function of the Court rather it was regarding the Administrative Functions of the Court.
While looking into the contempt of court cases it is pertinent to note the nature of the act as well as the person. Moreover, in Prashant Bhushan’s Case court did not comment as to why it regarded these statements as a scandalous statement while and explain why criticism of judiciary is not a right to freedom of speech and expression. However, I won’t be answering these questions as it can be best answered by the Judiciary itself. But I would like to cross question people as to their insight in this case that is it valid to criticize the decision of the Supreme Court in a country like India where countless number of cases are pending in courts. I am not saying that don’t criticize judiciary but just asking the people to get their facts straight as if the court will keep looking into every criticism it will not in any way help but will only cause further delay in the adjudicating process. I stand with the view of various eminent persons like our Attorney General KK Venugopal that court must not punish Prashant Bhushan but shall give him a strict warning. As punishing him may lead to a negative impact on every person in coming up in public regarding the grave injustice against them which will only weaken the substance of the democratic India.