Amartya Sahastranshu Singh & Manish Kumar
“Freedom is what freedom does and Justice fails when Judges quail”
Justice V.R Krishna Iyer
Prashant Bhushan’s two tweets on 27th June 2020 and 22nd July 2020 respectively, have shaken up the apex judicial institution of India. He posted tweets censuring the last four CJIs for playing a leading part in the downfall of democracy in India along with a severe criticism of the current Chief Justice as well. Issues started to convolute when the Supreme Court took suo moto cognizance and raised allegations of ‘Contempt of Court’ against Prashant Bhushan.
What this article seeks to analyse is the rationale that distinguishes an opinion from contempt, the legal distinction between criticism of a Judge and criticism of the Judiciary and the current international stand on the aforesaid issue.
Is criticism of a Judge the same as criticism of the Judiciary?
‘Judge’ and ‘Judiciary’ are two different entities. The Cambridge dictionary defines a Judge as an authority who gives decisions on legal matters and Judiciary as part of a country’s sovereign that is responsible for its legal system. Certainly, a Judge is an imperative part of the Judiciary, but is it so incredibly paramount that the two distinctive terms become interchangeable and criticism of one becomes criticism of the other?
In Surendra Nath Banerjee v. Chief Justice and judges of the High Court, 1883 the Privy Council drew a distinction between the terms and clarified that although condemnation of court may include defamation of a Judge, defamation of a Judge alone does not amount to contempt of court. This proposition was further substantiated in Supreme Court Bar Association v Union of India and Others where the extent of Contempt of Court was elucidated to be protecting the integrity of Justice from being maligned and not that of a singular Judge.
The Apex Court had also established in Rajesh Kumar Singh vs. High court of Judicature of Madhya Pradesh, that the Judiciary’s dignity is ‘brass-bound’ and criticizing a judgement or questioning the integrity of a judge does not shatter its nobility and hence, does not equate to Contempt of Court. The aforementioned judicial observations certainly defend Bhushan’s tweet on the CJI as it merely censures a Judge.
However, the other tweet that condemns the Supreme Court and former CJIs and alleges them to be playing a role in the destruction of India’s democracy goes a step beyond censuring a Judge. But does it amount to contempt? Or can it be considered as an opinion?
Although the bench overseeing the case considers it to be contempt, several other Judges of the Supreme Court itself, including Justices Joseph, A.P. Shah, Lodha and Lokur stand with Prashant Bhushan, stating that the tweets should be viewed as criticism and not condemnation. But how much water does their argument hold?
When does an Opinion or Criticism become Contempt?
In Andre Paul v Attorney General of Trinidad it was established by the Bombay High Court that justice is not a “cloistered virtue” and that people have the right to scrutinize it. The court, however, is not bound to entertain any arbitrary condemnation. This stand was further elucidated in Aswini Kumar Ghose v. Arabindaa Bose wherein it was held that for any critical remark on Courts to be contemptuous, it should transgress the limit of being fair and bona fide. A bona fide and constructive criticism is always appreciated and cannot be taken as denunciation of the court on any pretext.
This decision certainly rests in consonance with Section 5 of the Contempt of Courts Act, 1971 which states that, fair criticism of a Judicial act does not constitute contempt. Section 13 (b) further strengthens Section 5 by adding ‘truth’ as a valid defense for contempt as long as it is meant for the cause of public interest.
Therefore, it can be deduced from the foregoing arguments that an opinion or criticism becomes contempt only when it is untrue and male fide. But while considering the current case, can Bhushan’s tweets be taken as bona fide and for public interest?
The Supreme Court, in its verdict, has stated Bhushan’s remarks to be “undoubtedly false, malicious and scandalous”. It further added that “The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court”. The Supreme Court invoked Section 2 (c) (i) of the Contempt of Courts Act, 1971 for this case and accused Prashant Bhushan of Contempt.
In such cases, even Article 19 (a) of the Constitution of India cannot be invoked. As the Apex Court has already established in E.M. Sankaran Namboodiripad v. T. Narayanan ,that although Article 19 (a) of the Constitution envisages freedom of speech and expression, this clause has to be interpreted simultaneously with the second clause of the Article which puts restrictions on the freedom of speech for the contempt of court.
A Comparative Perspective of laws for Contempt of Court
Most Indian laws stem from English Laws and so is the case with the foregoing one. In England and Wales , the legislation dealing with the said matter is The Contempt of Court Act, 1981. However, right from its very inception, certain provisions of the statute that curtail the freedom of speech have been severely criticized, the most prominent one being ‘scandalizing of courts’ (one of the grounds alleged against Bhushan ). These provisions have been considered vague and arbitrary as they give a high hand to the courts over fundamental rights.
Consequently, the Law Commission of the United Kingdom published a paper in 2012 on the matter of ‘scandalizing of courts’ as a ground for criminal contempt and recommended its abolition. The UK government accepted the Commission’s proposal and abolished the law in 2013. The upgraded laws have a liberal approach and notably emphasize the freedom of speech.
Statutes In the United States too, have a provision for Contempt of Court, but contemporary American jurisprudence places greater emphasis on freedom of speech in the debate between contempt of court laws and the freedom of speech itself. It has been explicitly mentioned in the case of Schenck v. United States that although the freedom of expression, enshrined in the First Amendment to the United States Constitution, is intrinsically prime, there are slight circumstantial and contextual limitations to it. For instance, written or spoken expressions that are usual and commonplace in peacetime might amount to criminal offences in wartime.
The United Nations Human Rights Committee (UNHRC), which supervises state conformity with the International Covenant on Civil and Political Rights (ICCPR), has also noted that all public institutions, including the Judiciary, are legitimately subject to criticism. India is a state party to this organization, but how far does it seem to comply with the norms it has set?
Other than having stern laws for contempt, the Apex Court also has a certain policy that further strips the freedom of expression from the people. The Court, for instance, tends to tolerate and entertain criticism only from the legal fraternity and not from individuals with a non-legal background. The Court clarified this stand in the Arundhati Roy case where it was said that since she was merely an author, she did not possess any knowledge of laws and hence, lacked the locus to question the court.
In a democracy where the people are the masters, how fair is it to allow only a handful of people to criticize the ‘Guardian of the Constitution’?
Conclusion
Criticism is considered to be the backbone of democracy. The right to freedom of speech and expression enshrined in our Constitution further empowers the citizens to criticize the government, and the Judiciary, being the third pillar of democracy, is no exception to this upbraiding. Nevertheless, Articles 129 and 215 of the Constitution empower the Supreme Court and the High Courts respectively, to impose contempt of court in order to maintain their judicial sanctity. This , however, seems to serve as a tool for Courts to dodge judicial resentment.
It has been proved time and again, by Indian as well as foreign Courts, that this power should be sparingly used and only in those cases that obstruct justice and lack bona fide intention. But the question that arises here is whether Prashant Bhushan’s tweets were obstructing justice in any way? Or were his tweets untrue? Or were his allegations even mala fide?
Bhushan believes his tweets to be true and in utmost good intention. He has also refused to apologize when asked by the Apex Court to do so. On 14 August 2020, the Supreme Court convicted him for contempt of court. Several lawyers and Judges including the Bar Human Rights Committee of England and Wales stood up to support Bhushan requesting the Apex Court to reconsider the judgement.
Apart from this, the Supreme Court being a Court of Record should critically analyse the judgement because once it is issued, it would serve as a precedent for all such cases in the future. The Court should strive to find a good balance between exercising powers of contempt and ensuring the people’s right to express dissent.
The authors are students of the National University of Study and Research in Law, Ranchi.
NUALS Law Journal 