A criminal contempt: – Prashant Bhushan guilty tweet based on distorted facts.
Advocate and activist Prashant Bhushan, held guilty of contempt of court on August 14 for two tweets against present Chief Justice SA Bode and past four CJIs which the Supreme Court found was based on distorted facts and amounted to a scurrilous and malicious attack on apex court and destabilized the foundation of the judiciary, was on Monday sentenced to a token fine of Rs 1.
In default of payment of a fine by September 15, Bhushan has to undergo imprisonment of three months and will face a practice ban of three years, a bench headed by Justice Arun Mishra said in the judgment.
In two Twitter posts, Bhushan had criticized the CJI for appearing in public without a mask at a time when physical hearings had been suspended due to the Covid-19 pandemic, and also blamed the court for destroying democracy in the last few years.
A three-judge bench led by Justice Arun Mishra, and comprising Justices B.R. Gavai and Krishna Murari, said the tweets were based on distorted facts and amounted to “criminal contempt”.
The apex court had previously invoked the contempt law against writer Arundhati Roy for her stinging criticism of how the court had dealt with the evictees of the Narmada dam project. She was sentenced to a day in jail and slapped with a fine.
The bench rejected Bhushan’s arguments that the tweets were part of his right to free speech and was a bona fide criticism of the court. It also rejected his arguments that the tweets were only against the present CJI and the past three CJIs in their individual capacity and not calculated to interfere with the course of justice.
The Bench, also comprising Justice Krishna Murari, dismissed Mr. Bhushan’s defence that criticism was not contempt. Mr. Bhushan termed the tweets as expressions of his anguish that “everything is not hunky-dory”.
“Critics are instruments of reform, but not those actuated by malice but those who are inspired by public weal… Hostile criticism of judges as judges or judiciary would amount to scandalising the court,” Justice Gavai differed with the senior lawyer.
The court said Mr. Bhushan’s tweet gave an impression that “the CJI is enjoying his ride on a motorbike worth ₹50 lakh belonging to a BJP leader, at a time when he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice. The court said the tweet was a “wild allegation” based on “distorted facts” it was scandalous.
“The Supreme Court is the epitome of the Indian judiciary. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court,” Justice Gavai observed.
The judgment said contempt, if not criminal contempt, was attracted if free speech was used to scandalise judges and the institution of administration of justice or undermine the authority or dignity of the Supreme Court or to shake public confidence in the judiciary.
Law of Contempt Versus Independence of Judiciary Case Analysis:
It is well settled that in India we all are governed by the Constitution and Supreme Court is the guardian of Constitution and independence of judiciary and judicial review is part of basic structure of Constitution. The attacks on majesty of law and on the Supreme Court are not new. Soon after independence a group of particular thought started criticizing Supreme Court and majesty of law as a result a 5 Judge bench of the Hon’ble Supreme Court had to pass and elaborate judgment on the issue of contempt in the year 1953 in the case of Braham Prakash Sharma vs the State of Uttar Pradesh .
it is necessary to understand as to what law of contempt and powers of Hon’ble Supreme Court is to punish for contempt. It is well established and approved by the Hon’ble Supreme Court in the recent judgment of Constitution Bench in the case of Vijay Kurle that source of power of Supreme Court to punish for its contempt is not from section 15 of the Contempt of Courts Act, 1971 but it flows from Article 129 and Art. 142 of the Constitution of India are reproduced below for better understanding about powers of Hon’ble Supreme Court:
Contempt of Courts Act, 1971
Section 2. Definitions. In this Act, unless the context otherwise requires,
- contempt of court means civil contempt or criminal contempt;
(b) civil contempt means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;
(c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
(d) High Court means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory.
3. Innocent publication and distribution of matter not contempt.
(1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.
(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court.
(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid:
The Indian Constitution has given a special role to the constitutional courts of this country. The Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds. If an attack is made to shake the confidence that the public at large has in the institution of judiciary, such an attack has to be dealt with firmly. No doubt, that it may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. However, when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand firmly. If such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them. As observed by Justice Krishna Iyer in the case of Re: S. Mulgaokar, on which judgment, Shri Dave has strongly relied on, if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.
The summary jurisdiction of this Court is required to be exercised not to vindicate the dignity and honour of the individual judge, who is personally attacked or scandalized, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is sought to be shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. The scurrilous/malicious attacks by the alleged contemnor No.1 are not only against one or two judges but the entire Supreme Court in its functioning of the last six years. Such an attack which tends to create disaffection and disrespect for the authority of this Court cannot be ignored. Recently, the Supreme Court in the cases of National Lawyers Campaign for Judical Transparency and Reforms and others vs. Union of India and others15 and Re: Vijay Kurle&Ors has Suo moto taken action against Advocates who had made scandalous allegations against the individual judge/judges. Here the alleged contemnor has attempted to scandalize the entire institution of the Supreme Court.”