Scandalising the Court: Prashant Bhushan and Contempt in India
By: Jibraan Mansoor & Tejas A. Jha* |
A three-judge bench of the Supreme Court recently issued a notice to advocate Prashant Bhushan in a contempt proceeding initiated suo motu, following a petition filed against tweets by Mr. Bhushan criticising the CJI for riding “a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan 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!” While doing so, the bench also took note of a second tweet by Mr. Bhushan posted on June 27 in which he raised concern over the “destruction” of democracy in India and the role of the Supreme Court, “more particularly the role of the last 4 CJIs” in the same.
Contempt of Court - Statute and Indian Corpus Juris
The statutory regime governing contempt law is the 1971 Contempt of Courts Act. The act allows for a criminal offence when an act or expression, ‘scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court’, amidst other offences. Vaguely, scandalising the court would involve an act which could lower the public perception of the court, and thereby dilute the faith reposed in the judiciary. However, long before this statute came into force, ‘contempt of court’ as a provision was discussed during the foundational moment of the Indian constitution.
R.K. Sidhva, while fiercely opposing an expansive scope of the contempt provision, remarked that “judges have not got two horns; they are also human beings. They are liable to commit mistakes”. However, the contempt proceedings against advocate Prashant Bhushan for his tweets is a strong indictment of Sidhva’s beliefs. For how else can we begin to rationalise that the highest court of the country believes that a human being not wearing a mask and violating social distancing rules during a pandemic (acts which were unlawful as per the ‘National Directives for COVID-19 Management’ adopted by the Nagpur Municipal Corporation through an official notice) and riding a 50 lakh motorcycle, while the images of migrant workers haunt the nation, ought to be immune from any criticism. Perhaps, some might suggest that the courts are being unnecessarily insecure. But such a suggestion would be in contempt. So, what else?
Maybe the court believed that the mention of the “motorcycle belonging to a BJP leader at Raj Bhavan Nagpur” is an act which ‘scandalises the court’. However, the guardians of the constitution would reasonably be aware that after the Amendment in 2006 to the Contempt of Courts Act 1971, ‘justification by the truth’ if made ‘in the public interest’ is a valid defence. Unless of course, we are wrong to believe that awareness about the CJI of the country using a vehicle owned by a member of a political party (an act which might emphasise the need to re-visit “Restatement of Values of Judicial Life” adopted by the Supreme Court in 1997, which serves as guidelines for the conduct of judges both in and outside of court) isn’t in the public interest. In Gobind Ram v State of Maharashtra, even though an advocate claimed that magistrate was ‘on friendly relations’ and enjoyed ‘hospitality’ of the other party, the court refused that the statement amounted to contempt for a ‘mere statement’ of that nature without ‘imputation of some improper motives’ cannot directly be assumed to formulate a sanction of contempt.
Maybe Privy Council cases from as back as the 19th century might be needed in the 21st century. For Lord Justice Bowen had said that the ‘essence of the offence’ of contempt, was that it is ‘against the public, not the judge, an obstruction to public justice’[i], or Lord Morris who noted in 1899 that scandalising the court couldn’t be used for ‘vindication of the judge as a person’ and was supposed to be used ‘sparingly’, keeping in mind the interests of ‘administration of justice’.[ii]
Possibly then, the court might divert our attention to the other tweet. Admittedly in our institutional history, this statement might be held in contempt of the court. For as Bhatia argues, the courts have usually treated scandalizing the authority of the court as an offence in itself, irrespective of ‘its relationship to the obstruction of justice’[iii]. A possible reason for this expansive restriction on freedom of speech, A. Chandrachud highlights, can be traced back to Rex v Almon. In Almon, Chief Justice Mansfield was accused of acting ‘officiously, arbitrarily, and illegally’[iv]. Wilmot, J. writing for the court said that the objective of contempt was to ‘keep a blaze of glory around’ judges and to prevent the authority of the judges from being challenged by the public.
However, after the Law Commission’s recommendation in 2012, even the British jurisdiction abolished ‘scandalising the court’ as an offence. In its recommendation, the Commission noted that it seemed that the “purpose of the offence is not confined to preventing the public from getting the wrong idea about judges…[but] that where there are shortcomings, it is equally important to prevent the public from getting the right idea”[v]. Even in other jurisdictions such as the US, while deciding upon Bridges v. California, the court claimed that enforcing silence, even if to protect the judiciary, would arguably lead to “resentment, suspicion, and contempt much”, rather than increasing respect in the eyes of the public.
These claims shouldn’t be considered as completely alien to our corpus juris. For even individuals who were “not particularly popular or pro-Indian”[vi] like Beaumont, J. in Government Pleader v Tulsidas Jadhav (1938), noted that confidence of the pubic in the judiciary would depend upon judicial work and the same cannot be substituted by merely stifling dissent Further, since the court effectively acts as both a prosecutor and the judge, and the contemnor is “deprived of the ordinary methods of trial”, scandalising ought to be used “sparingly”.
Where does this leave us?
Different scholars have suggested various paths in order to mitigate the impact of this seemingly draconian provision. Gautam Bhatia suggests an approach similar to the one which was advocated by Sathe, wherein contempt should be “restricted [to] the scope of the offence to ‘actual or threatened interference with the administration of justice’”[vii].
However, in our opinion, it is A. Chandrachud whose suggestions hold more merit whereby he argues that while the broader scope of ‘scandalising the court’ ought to be done away with, Indian courts can have limited powers to punish contempts that scandalise the court in “day-to-day functioning of the courts”[viii]. For instance, if an individual shouts at a judge in the court while alleging the judge to be corrupt, thereby disrupting the decorum completely, such provisions can be enacted. Although, if the recent contempt proceedings against the rape victim are to be taken into account, even such employment of contempt should be judiciously used. This approach not only recognises the agency reposited with different individuals and thereby mitigates rather embarrassing assumptions about a criticism leading to ‘bringing down the administration of justice’, but also seems to resolve the anxieties of a just court.
While issuing the notice to Mr. Bhushan, the Supreme Court in its order remarked that the impugned tweets had bought disrepute to the court and “are capable of undermining the dignity and authority of the institution of Supreme Court”, in the eyes of the public. While the Supreme Court may feel that a statement criticising the acts of a judge or former judges amounts to undermining the court itself and that this is warrant enough to prosecute the individual making such criticism, the late Senior Advocate Vinod Arvind Bobde, a constitutional expert and elder brother of the CJI, clearly disagreed.
V. Bobde suggested that there is a need to change the approach that the courts take towards such criticisms and instead, “it is necessary to examine in each case whether the judge by his conduct has not himself brought the judiciary into disrepute. If so, there is a case for purging him from the institution, not for proceeding in contempt against those who bring the misconduct to the notice of the public”, whilst also noting, “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”. In initiating contempt proceedings against Mr. Bhushan, the Supreme Court has once again aligned with the paranoia of the judiciary whereby it often equates criticism to ‘attacks’[ix] on the authority of the judicial institutions, rather than as opportunities to improve on its shortcomings pointed out by concerned citizens and fellow law officers in what is supposed to be a democratic country.
* The authors are the LL.B. students at Jindal Global Law School, OP Jindal Global University.
[i] In the matter of special reference from the Bahama Islands, (1893) AC 138 (PC); Also see: Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India (Publisher Penguin Random House 2017) 157 [ii] (1899) A.C. 549. p 561 [iii] Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (OUP India, Kindle Edition) [iv] Chandrachud (n i) 157 [v] See: Law Commission, Contempt of Court: Scandalising the Court, A Consultation Paper (Consultation Paper No. 207); Also see: Bhatia (n iii) [vi] Chandrachud (n i) 169 [vii] Bhatia (n iii) [viii] Chandrachud (n i) 192 [ix] The recent order holding Mr. Bhushan guilty of contempt and the judgments cited within, constantly brand the said acts of contempt as ‘attacks’ on the judges or the judicial institutions, thereby bestowing a more serious and malicious nature to them than they might deserve.
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