An analysis of the power of contempt of court in light of the Supreme Court judgment of Prashant Bhushan case by -Prof (Dr.) C. A. Gurudath & Kumar Vikram Aditya

An analysis of the power of contempt of court in light of the Supreme Court judgment of Prashant Bhushan case.

Author 1: - Prof (Dr.) C. A. Gurudath, Dean, School of Law SRMIST

Contact: - dean.law@srmist.edu.in; 04427434200

Author 2: - Kumar Vikram Aditya, Research Scholar, School of Law SRMIST

Contact: - ka8517@srmist.edu.in; 9470484257

Abstract

A day prior to 74th Independence, a three-judge bench of Apex Court held that the remarks made by officer of the court i.e. Prashant Bhushan amounts to criminal contempt and thus he shall be liable for the fine and punishment. Later on, the court took a generous path andasked for an unconditional apology from Prashant Bhushan but he was adamant towards the remarks made by him which according to him falls in the exception of the said offence. On 31st of August a Division bench imposed fine of Rs. 1 on Prashant bhushan and further said that failure would lead to imprisonment and suspension of practice. The author shall examine the current case of contempt and the ruling of the Apex Court. Further, the author shall examine the definition of the contempt and the exception given under the contempt of court Act. At the end the author will present the criticism made by several member of legal fraternity.

Key Words: - Contempt of Court, Criminal Contempt, Article 129, fair criticism, procedure.

Reason of Tussle: - The tussle between the constitutional functionaries and the officer of the court started with the alleged two tweets made by Prashant Bhushan which made derogatory remarks and scandalised the image of judiciary. Both the alleged tweets were made in the month of June in which Mr. Bhushan accused the last 4 CJIs to be responsible for the destruction of the democratic fabric of the nation and in another tweet, he questioned the credibility of the current CJI[1] and alleged his failure to grant access to justice to all. The petition was filed by Mahek Maheshwari without the consent of the Attorney General. The court though Suo Moto on 22nd of July 2020 listed the matter for hearing as the court considered both the tweet has disrupted the administration of justice and undermine the dignity of the court.

Bhushan’s Plea: - While the hearing Mr. Prashant Bhushan argued that the tweet was made because of the virtual functioning of the court since March and there have been several instances where the fundamental rights of the citizen remain unaddressed. Further, he alleged, that Hon’ble CJI was seen without mask surrounded by several, which according to him doesn’t amount to contempt. In the second tweet, he made remark that the democracy of India has been destroyed by the last 4 CJIs. He further stated that CJI is not the Supreme Court and any remark made on the current CJI or the retired one doesn’t amount to contempt. He further added that criticism of the work of CJI and earlier CJI’s doesn’t lower the dignity of the court neither does it scandalises it. Further, he contended that the consent of attorney general was also not taken since the proceeding was initiated on the petition filed by Mahek Maheshwari rather Suo Moto. He further added that, going by the definition given in the 1971 Act, the tweet made by Ashok Bhushan doesn’t amount to Criminal Contempt as it neither lower the image of the court nor it scandalizes its authority. Further, he also cited Brahma Prakash Sharma[2] Case where the court in 1953 has held that while deciding that whether statement amounts to contempt or not the court has to look upon the statement and even if the statement made is upon the character of the judge but doesn’t affect the course of justice then it won’t amount to contempt. By placing reliance on the above judgment he said that the statement was not upon judiciary but was upon the present and the past three CJI in their personal capacity. Further, statement made by a former judge during a speech that “Supreme Court comprises of elite class[3]” was not taken as contempt and was called as expression of opinion. Lastly he said that Bhushan always works for the interest of public.

Claim of the Court: - Council who was arguing against Bhushan said that there is difference between the statement made upon a judge in an individual capacity and as a judge and contempt shall fall upon the person in the latter case. Criticism, he claimed is a necessary right but must the right must serve its limitations.

Court’s Expression: - The court relied upon the case of Re: Vijay Kurle & Ors[4] where the Apex Court held Article 129 as the primary source of power of court of record the Apex Court under which the court has the power to punish for contempt which can’t be restricted by any statute which is not so in case of Article 149(2). Similar power is enjoyed by High Court under Article 215of the constitution. Further, the court reinterred that the court may Suo Moto take action against the contemnor where Attorney General denied the consent[5]. The court examined “The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975” (hereinafter Rules) Section 3 which clearly states that contempt proceeding can be instituted by the court either on petition made by Attorney General or Solicitor General or on consent given by both or Suo Moto. So it can be said Section 3 provides 3 ways by which contempt proceeding can be instituted. Court further cited judgment of 1992 where it was held that even before the 1971 Act the Court had inherent power to deal with the contempt matter. Though, the Act of 1971 doesn’t curtail the constitutional power of Apex Court and the High Courts.[6]The court in Pritam Pal case has held the advocate liable where he made statement against the judge when he failed to get favourable judgment.[7]Similar inference has been made by Supreme Court in Delhi Judicial Service Association case[8]. Court has also suspended the advocacy of the contemnor[9].The contempt of Court Act, 1971 defines the contempt of court, civil contempt, criminal contempt, what doesn’t amount to contempt[10], power of the court and the procedure to be adopted by the court while dealing with contempt proceeding. Parliament enacted the law by the virtue of Entry 77 of List I though the Act in no manner limits the constitutional power of the Supreme Court. The only requirement that the Supreme Court has to fulfil is that they have to follow just procedure which they have followed in this case as the matter went to the Court Suo Moto.

The bench then said that which attacks the judge or the court which demeans the authority of the court or is defamatory to the character of the judge is punishable under the contempt proceeding. The court held Hira Lal Dixit liable for contempt where he distributed leaflet which said that “government controls the appointment of judges and thus judges favour the government”[11]because it affected the administration of justice. There need not be actual interference even publication which may interfere is also libel for contempt.[12] In E.M. Sankaran Namboodripad vs. T. Narayanan Nambiar[13]the court while holding the former CM of Kerela guilty of conduct said that when the conduct of person disrespects the authority it would amount to contempt. So we can see from above that Court through its various judgments has said that by any act or conduct if the administration of justice is affected or tends to affect or confidence of judiciary is lowered then that conduct will amount to contempt. The court said that contempt may happen in several form one of them being the “vilification of Judge”. Any attack on the judge will amount to contempt if it affects the administration of justice. But if the vilification is made in individual capacity then contempt proceeding won’t start. However, if the vilification is made on the judge in his capacity as judge then it would amount to contempt. But even if there is some mistake being done then it must be brought to notice for correction and what the contemnor did in the present case is not that. The judiciary can’t be immune from criticism but of the criticism is based on misstatement or wrong fact which may demean the status of the authority then it will amount to contempt. Power of contempt must be used sparingly and with due diligence though. There are three instances where the act doesn’t amount to contempt they are when publication has been made by person innocently[14] or where fair and accurate reporting of the judicial proceeding has been made[15] or where the criticism has been fair[16]. Justice Krishna Iyer has laid down six guidelines with respect to use of the power of contempt. First is that the power must be used sparingly, second is that it must not impede the constitutional values of free and fair criticism, third being there must be demarcation between statement made on a judge in his personal capacity and in capacity as a judge, fourth is that the criticism must not be limited except to the extent it demeans the authority of the court, fifth is that even if criticism overstep dignified recourse shall be adopted by judiciary and lastly, if there is no recourse then the power must be exercised to uphold the authority of the court.[17] The statement made if read in entirety amounts to contempt made by the contemnor as it affects the administration of justice. Punishing an advocate for contempt is an extreme measure but to preserve the administration of the Apex Court it must be done. Judiciary is the guardian of Rule of Law and must effectively perform its function. If any activity impedes the performance then it would be taken into consideration by the court. The contemnor was held liable where he abused the judge[18]. The court then laid down grounds on what would amount to contempt. The bench said that any hostile criticism or personal attack on the judge or alleging impartiality, bias or corruption would amount to contempt as it lowers the dignity of the court. Contempt is special jurisdiction and must be used sparingly which must not be used to protect the dignity of the individual judge rather to protect the administration of justice. Fair criticism made with good faith and in public interest may not amount to contempt. Thus 19(1) (a) is available to the citizens subject to the restriction given in 19(2). The court won’t act if the criticism is fair with intent of correction but will take action of it attacks the judge in his judicial capacity or impedes the administration of justice.

The bench finally held that tweet made by alleged contemnor about CJI riding a bike doesn’t amount to contempt as the statement was made in the individual capacity of CJI, however its second part does amount to contempt as it questions the working of judiciary in protecting the rights of the citizen during the lockdown. The first tweet was a miss-statement as the court was working virtually during which it heard more than 10 thousand matters. The tweet, if read whole gives the impression that “CJI is enjoying while the citizens are asking for protection of their rights” which is scandalous and false. The court said that the second tweet alleged on the last 4 CJIs for destruction of the democratic fabric of the nation. This criticism was not made against an individual judge but was against the institution itself which is not a fair criticism if the statement of the contemnor is taken into account. The tweets, according to the bench, are based on miss-statement and demean the authority of the court. The full bench held Prashant Bhushan liable for contempt.

Conclusion

The law commission of Indian report No. 274 didn’t recommend any amendment to be made in the 1971 Act. But, there were several repercussions with regard to the judgment of the Supreme Court. The Bar Human Rights Committee of England and Wales showed their concern over the judgment of the Apex Court and said that the tweet of Bhushan falls in the ambit of “legitimate criticism”. The committee further demanded for review of the judgment and abolish the clause of criminal contempt[19] as it is not an offence in UK since 2012.  Similar concerns were raised by several lawyers countrywide. Further Arvind Datar also criticised the act of court where it converted the petition filed under 3(c) to 3(a) and thus defeated the object of the act i.e. to obtain the consent of the Attorney General. Further, he also stated that the bench missed the pleas placed before the court by the contemnor and proceeds to give the judgment.[20]After Bhushan didn’t submitted his apology the division bench of Supreme Court imposed fine of Rs.1 on him and failing to do so may impose punishment of 3 months and suspension of the practice for 3 years. Earlier the Attorney General requested the court not to punish him but it was disregarded. Further Faizan Mustafa has also pointed that confidence and faith in judiciary shall be strengthened by order and judgement rather by resorting to the process of contempt[21]. On August 30th, 2022 Supreme Court dropped the contempt proceeding against Prashant Bhushan.

[1] 47th CJI, Justice Sharad Arvind Bobde.

[2] Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh 1953 SCR 1169.

[3] P.N. Duda vs. P. Shiv Shanker & Others (1988) 3 SCC 167.

[4]In Re: Vijay Kurle & Ors 2020 SCC Online SC 407.

[5] C.K. Daphtary v. O.P. Gupta (1971) 1 SCC 626.

[6]Pritam Pal, vs. High Court of Madhya Pradesh, Jabalpur Through Registrar (1993) Supp. 1 SCC 529.

[7] Ibid.

[8] Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat (1991) 4 SCC 406.

[9] In Re: Vinay Chandra Mishra (1995) 2 SCC 584.

[10]The Contempt of Court Act, 1971 (Act 70 of 1971)

[11] In re Hira Lal Dixit & ors (1955) 1 SCR 677.

[12] Brahma Prakash Sharma and Ors. v. The State of Uttar. Pradesh AIR 1954 SC 10.

[13] E.M. Sankaran Namboodripad vs. T. Narayanan Nambiar, (1970) 2 SCC 325.

[14]The Contempt of Court Act, 1971 (Act 70 of 1971)

[15]The Contempt of Court Act, 1971 (Act 70 of 1971)

[16]The Contempt of Court Act, 1971 (Act 70 of 1971)

[17] In Re: S. Mulgaokar 1978(3) SCC 339.

[18] In re: Vinay Chandra Mishra (1995) 2 SCC 584.

[19]Bar Committee, INDIA – BHRC deeply concerned by Indian Supreme Court interference with legitimate criticism,Bar Human Rights Committee of England and Wales (BHRC),(Aug. 30, 2020, 01:59 PM)https://www.barhumanrights.org.uk/india-bhrc-deeply-concerned-by-indian-supreme-court-interference-with-legitimate-criticism/.

[20]Arvind Datar,A seriously flawed judgment, Bar & Bench, (Aug. 29, 2020, 07:25 PM)https://www.barandbench.com/columns/a-seriously-flawed-judgment.

[21]Faizan Mustafa, Contempt powers, in the people’s name, The Hindu, (Aug. 29, 2020, 02:45 PM) https://www.thehindu.com/opinion/lead/contempt-powers-in-the-peoples-name/article32397594.ece.