We are all living under extraordinary
times. We are also living with extraordinary situations – some created by us
and others over which we have no control whatsoever. The Supreme Court of India
has created an extraordinary situation by holding guilty Prashant Bhushan, one
of its senior advocates, of contempt of itself. This situation was best avoided
by the honorable judges by being magnanimous.
True, the constitutional right to freedom
of speech would not stop the courts from punishing contempt of itself. However,
as explained by constitutional expert V.N. Shukla, “Judges have no general
immunity from criticism of their judicial conduct, provided that it is made in
good faith and does not impute any private motive to those taking part in the
administration of justice. “Justice is not a cloistered virtue,” said the Privy
Council in Ambard v. Attorney General for Trinidad and Tabago, “She must be
allowed to suffer the scrutiny and respectful, though outspoken, comments of
ordinary men.” (Constitution of India, by V.N. Shukla, 7th edition
published by Eastern Book Company, page 82.)
Shukla further pointed out the summary
jurisdiction exercised by superior courts in punishing contempt of their
authority exists for the purpose of preventing interference with the course of
justice. This is certainly an extraordinary power which must be sparingly
exercised but where the public interest demands it, the court will not shrink
from exercising it and imposing punishment even by way of imprisonment in cases
where a fine may not be adequate. This jurisdiction will not ordinarily be
exercised unless there is real prejudice which can be regarded as substantial
interference with due course of justice as distinguished from a mere question
of propriety.
In C.K. Daphtary v. O.P. Gupta (AIR
1971 SC 1132), the Supreme Court, in examining the scope of the contempt of
court, laid down that the test in each case is whether the impugned publication
is a mere defamatory attack on the judge or whether it will interfere with the
due course of justice or the proper administration of law by the court. A
distinction should be made between defamatory attacks on a judge and the
contempt of court.
Now what did Prashant Bhushan do? He
made two tweets. In the first tweet, posted on June 27, 2020, he wrote, “When
historians in future look back at the last six 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, and more particularly
the role of the last four Chief Justices of India.”
In the second tweet on June 29,
Bhushan put out a photograph of the Chief Justice of India, S.A. Bobde sitting
on a motorcycle and wrote, “CJI rides a 50 lakh motorcycle belonging to a BJP
leader at Raj Bhawan 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.”
The Supreme Court held that the two
tweets have the effect of destabilising the very foundation of this important
pillar of Indian democracy. It took umbrage at Bhushan linking the Supreme
Court to an Emergency-like situation and held his tweets false, malicious and
scandalous.
As pointed out by the Citizens for
Democracy, the tweets made by Bhushan were expressions of anguish felt by
thousands of victimized citizens who are at the receiving end of state power
and who cry for judicial protection. Holding him guilty and punishing him will
in no way promote administration of justice or enhance the majesty of law.
What is the way out? According to
Justice (Rtd) Kurian Joseph, “In both the suo motu contempt cases, in view of
the substantial questions of law on the interpretation of the Constitution of
India and having serious repercussions on the fundamental rights, the matters
require to be heard by a Constitution Bench.” It should also deliberate whether
a person convicted by the Supreme Court of India in a suo motu case should get
an opportunity for an intra-court appeal, since in all other situations of
conviction in criminal matters the convicted person is entitled to have a
second opportunity by way of an appeal.
(Published
on 24th August 2020, Volume XXXII, Issue 35)
