Prashant Bhushan Contempt: No Country for Dissent?

On August 14, the Supreme Court held well known lawyer and activist Prashant Bhushan guilty of contempt of court over his tweets about the apex court and the Chief Justice of India. The Bench headed by Justice Arun Mishra said the tweets prima facie “[have] attempted to scandalise the entire institution of the Supreme Court, and "brought administration of justice into disrepute and are capable of undermining the dignity and authority of SC and office of CJI". 

The contempt case was initiated by the Court itself after two tweets by Prshant Bhushan on CJI Bobde sitting on a Harley Davidson motorcycle belonging to a Bharatiya Janata Party (BJP) leader in Nagpur, and also included the revival of an old case of 2009, the last hearing for which was held in 2012. The three-judge bench will begin hearings on sentencing on August 20.

Bhushan’s views, as expressed in the particular tweets, may be disagreeable to the Court, but it is a sad day for Indian democracy, that too on the eve of our 74th anniversary of the Independence Day, when senior counsel of the top court is held guilty of criminal contempt for scandalising the Court. ‘Scandalising the Court’ is part of the British monarchical hangover in Indian law that we inherited from the British. The British themselves have dispensed with the “scandalising the Court” in their Contempt of Court Act. It is ironic that the Bench quoted approvingly from a Judgement Justice Wilmot in R. vs. Almon made as  in 1765, “…. And whenever men’s allegiance to the law is so fundamentally shaken ... calls out for a more rapid and immediate redress ... not for the sake of the Judges, as private individuals, but because they are the channels by which the King’s justice is conveyed to the people”. 

The Court, in the same vein as Judge Almons’ judgement of 255 years back, said that Bhushan had “affronted the majesty of the law” and violated the provision in the prevailing law (passed in 1971 and amended in 2006) that defines contempt as such speech that "scandalises or tends to scandalise", lowers the authority of judiciary or prejudices and interferes any judicial proceeding. Unfortunately, the law leaves a large grey zone in terms of what can be considered scandalous. The 2006 amendment had added a layer of defense for the accused by providing good faith and truth as valid defenses. But it appears that the Court found it inapplicable in Bhushan’s case.

The judgement appears to go far beyond existing jurisprudence that powers to hold someone in contempt should be exercised with extreme restraint and only in the case of interference with the administration of justice. It opens the possibility of stifling dissent and constructive criticism of the Court, which the Court itself has held as a fundamental right. 

It may be noted that back on January 12, 2018, four sitting judges of the Supreme Court had themselves publicly disagreed with the CJI, particularly about how cases were being allotted to different Benches “without rational basis”, and had raised questions about the integrity of the judicial process, transparency in appointments of judges, etc. In this, there was a clear case of constructive criticism of the top Court – though some would have argued that it would “scandalise” the Court or bring disrepute to the judicial process. 

The reason why there is so much anguish in the country over this current judgement is that already an atmosphere of intolerance has spread far and wide, both in society and in the executive branch. This is evidenced by such extreme acts as lynchings of people from a particular community, arrests and harassment for social media posts on valid criticism of administration, selective use of branches of state (like the Enforcement Directorate and Income Tax Department, or even the Central Bureau of Investigation) against political opponents, hounding of academics and activists who are critical of government policy, etc. In such an atmosphere, the residents of the country look upon the judiciary as an independent and just arbiter upon whom trust can be placed for the speedy delivery of justice. It is unfortunate and tragic if the same kind of perception is there for the apex court. 

In recent times, it has seemed as if the Court has not lived up to the expectations of defending the Constitutional rights of the citizens. A recent statement by eminent citizens has pointed out: “Most recently, the Supreme Court’s reluctance to intervene in a timely manner to avert the migrant crisis during the lockdown came under intense public scrutiny. Concerns have also been raised regarding the decision of the court to not restart physical hearings, even in a limited manner, despite the passage of five months since the onset of the COVID pandemic”. 

In an intervention petition filed before the Supreme Court by several social activists and academics before the judgement, a comment by the late Senior Advocate Vinod A Bobde, is aptly quoted, where he wrote in his article, Scandals and Scandalising (2003) 8 SCC Jour 32, “We cannot countenance a situation where citizens live in fear of the Court’s arbitrary power to punish for contempt for words of criticism on the conduct of judges, in or out of court."

If the Court does not command the respect of its citizens by its judicial actions, it will not resurrect this respect through fear of its powers punishment through its archaic contempt of court powers. 

Also read: How Forceful is Your Repression, We Have Seen it and We Will See it Again, Says Prashant Bhushan