Prashant Bhushan’s Contempt Case - Sledgehammer or Judicious?

On Saturday, Former Law Minister Mr. Kapil Sibal had defended veteran lawyer Prashant Bhushan, tweeting, “contempt power being used as a sledgehammer” and further warning that history would judge the courts for “having let us down.” Mr. Sibal’s stance is expected since anybody and everybody who is opposing the Central Government seems to be on the side of Ld. Advocate Mr. Bhushan, whereas supporters of the present government are against Mr. Bhushan. I do not belong to any side. I am expressing my views more fearlessly in the interests of the judiciary, the Bar, and democracy. 

I do not agree with Mr. Sibal’s tweet. It is incorrect and inappropriate to call the judgment of the Supreme Court in Mr. Prashant Bhushan’s case “contempt power being used as a sledgehammer.” The Supreme Court was right in convicting Mr. Bhushan for having committed criminal contempt of court. Mr. Bhushan has consistently stated that his tweets were made out of a “bonafide attempt to discharge his duty as a citizen,” and that “I would have been failing in my duty if I did not speak up at this juncture of history.” On Thursday, Mr. Bhushan told a bench of Justices Mr. Arun Mishra, Mr. B.R. Gavai, and Mr. Krishna Murari that he was pained that the court had found him guilty of contempt, but that he would not apologise for the two tweets in question. Now here’s why I believe that the Supreme Court was right in convicting Mr. Bhushan for having committed criminal contempt of court.

READ | Prashant Bhushan case: SC reserves order, hearing on August 25 if 'apology rendered'

What is permissible under the law is ‘respectful criticism’ of judgments, judicial actions or judicial silence, if it is meant for the public good or in the public interest. Mr. Bhushan has made certain comments on Twitter stating that the CJI, not wearing a helmet or mask, was riding an expensive bike belonging to a politician owing allegiance to BJP at a time when the CJI was also denying access to justice. Mr. Bhushan also stated that during the last six years, democracy in India had been murdered and that the last four Chief Justices had played a role in this destruction of democracy. After the tweet was published, there was no attempt to critically examine in detail the claim that democracy had been destroyed by the previous four Chief Justices. Mr. Bhushan made his earth-shattering statement on a public social media platform and is unwilling to apologise. His remarks have a definite tendency to denigrate the judiciary and certainly undermine the confidence of the litigants in the justice delivery system. 

While dealing with his right to freedom of speech and expression, Mr. Bhushan in his affidavit-in-replay has stated the following:

“l2.The freedom of speech &. expression guaranteed to every citizen under Article 19(1)(a) is the ultimate guardian of all the values that the constitution holds sacred: Rule of Law, Separation of Powers, Secularism, Free & Fair elections, etc. The relationship between Article l9(lXa) and Article 129 is governed by Article 19(2). Article l9(2) recognizes the fetters that can be placed on freedom of speech & expression under the Court's power to punish for contempt under Article 129. 'Reasonable restriction' being the operative word under Article l9(2), any exercise of contempt powers by the Supreme Court, must necessarily not be of a nature that goes beyond ' reasonable restrictions'.” 

“l3.To prevent a citizen from forming, holding, & expressing a ‘bonafide opinion' in Public Interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded. To prevent a citizen from 'evaluating' in Public Interest the performance of any institution that is a creature of the constitution and putting it in the public domain to inform, generate a debate, build public opinion for reforms/change is violative of our right to free speech.”

“14.The power of contempt under Article 129 is to be utilized to aid in administration of justice and not to shut out voices that seek accountability from the Court for its errors of omissions and commissions which have been detailed hereinafter. To curb constructive criticism from persons of knowledge and standing is not a ‘reasonable restriction'. Preventing citizens from demanding accountability and reforms and advocating for the same by generating public opinion is not a 'reasonable restriction'. Article 129 cannot be pressed into service to stifle bonafide criticism from citizens who are well informed about the omissions and commissions of the Supreme Court.”

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The freedom of expression guaranteed by our Constitution is not an “unrestricted license” to defame and denigrate our judges and judicial officers. The Supreme court in (2016) 7 SCC 221 - Subramanian Swamy V. Union of India has held:
“(195) One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right but the Constitution conceives of reasonable restriction. In that context, criminal defamation which is in existence in the form of Sections 499 and 500 IPC is not a restriction on free speech that can be characterised as disproportionate. The right to free speech cannot mean that a citizen can defame the other. The protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest. Thus, we are unable to accept that provisions relating to criminal defamation are not saved by doctrine of proportionality because it determines a limit that is not impermissible within the criterion of reasonable restriction.

It has been held in D.C. Saxena V. Chief Justice of India, though in a different context, that if maintenance of democracy is the foundation for free speech, society equally is entitled to regulate freedom of speech or expression by democratic action. The reason is obvious viz, that society accepts free speech and expression and also puts limits on the right of the majority.

The interest of the people involved in the acts of expression should be looked at only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression. The Court had further observed that the State has a legitimate interest, therefore, to regulate the freedom of speech and expression in which liberty represents the limits of the duty of restraint on speech or expression not to utter defamatory or libellous speech or expression. There is a correlative duty not to interfere with the liberty of others. Each is entitled to the dignity of a person and of reputation. Nobody has a right to denigrate others’ right to person or reputation.”

Senior Advocate and former Additional Solicitor General Mr. S. B. Jaisighani in his recent article have stated:

“The freedom of expression guaranteed by the Constitution is not an unrestricted license to defame and scandalise with impunity. Some of the questions to be considered for determining whether the perimeters of the freedom of free speech have been transgressed and forbidden territory encroached upon are 1) whether the comments are analytical or just bald assertions? Are the comments accompanied by evidence? Are the comments the expression of opinion without a shred of supporting material? Have the comments been made on an appropriate occasion and before a proper forum? Are the comments couched in respectful and guarded language or are they made in a reckless and cavalier manner disclosing a lack of due consideration and admitting of no possibility of the same being erroneous etc. In the instant case, the comments were made on Twitter, the provocation being that the Chief Justice was sitting on an expensive Motorbike without a helmet and a mask which allegedly belonged to a member of a political party, at a time when the Supreme Court was not holding physical hearings due to the Covid-19 lockdown. How could this photograph of the Chief Justice sitting on a motorcycle cause Bhushan to leap to issues of democracy, murder thereof and involvement of Chief Justices of India, boggles the mind. I have never seen such puerile and ill-conceived comments on important issues like destruction of democracy and the involvement of Chief Justices of India in such destruction, made in a huff and in such a daringly casual manner. What compounds the gravity of the offence is that the derogatory comments were made on a social media platform such as Twitter which is known to thrive on frivolities, fake news and gossip.”

READ | "We will be fair to you, even if you are not fair to us": SC tells Prashant Bhushan

The Bar Council of Maharashtra & Goa has in a resolution stated: “It is unfortunate that when political ends of lawyers are not served by a decision of the Court, they vilify the Court by making scandalous remarks. The Supreme Court of India as well as the judges are subjected to both scurrilous language, malicious attacks and scandalising remarks. Legitimate criticism of both judgments and the functions of the institution has always existed; however, when criticism is calculated and actuated by malice, it is the authority of the court which is undermined. The actions of these institutional disruptors through name-calling and usage of certain phrases such as ‘Supreme Court has destroyed democracy’, ‘the Supreme Court is killing the institution’ have the tendency to destroy the faith of the public in the judiciary.”

In the meanwhile, the noted jurist and former Attorney General of India Mr. Soli Sorabjee has come out in support of Mr. Prashant Bhushan to say that he should not be sentenced for contempt and the court should be ready to accept criticism. We cannot overlook the fact that the Supreme Court was fair to Mr. Bhushan and granted him time until August 24 to submit an unconditional apology, if he so desired. The Supreme Court also asked Mr. Bhushan to take a few days to reflect on and possibly modify a statement he read out to judges, in which he refused to apologise for his tweets.

Let’s be clear: Opinions are not evidence. Claims are not facts. Mr. Bhushan needed to step up with supporting evidence backing his scurrilous tweets that reached millions of Indians. He chose not to do so, despite being given every opportunity in court, and continued to make claims regarding his veracity, credibility, and nonpartisanship of his tweets. In his statement, Mr. Bhushan has included a quote by Gandhi, who led India’s glorious fight for freedom and advocated speaking truth to power, no matter the personal cost. The parallels he is drawing are obvious. His tweets yesterday strenuously and heroically denying any similarities with Gandhi’s great sacrifices only serve to demonstrate his consummate about-face, his deft maneuvering of public opinions. All we are left with, still, are his opinions. We awaited facts. Mr. Bhushan did not oblige with the cornerstone of democracy -- truth.

The writer, Rajiv Chavan, is a Senior Advocate & former President of Advocates Association of Western India (2013-2015 & 2015-2018)