Supreme Court, Prashant Bhushan Contempt Proceedings and issues involved.

In my humble opinion, I was within the rights of journalists in publishing the letter in question and making comments thereon. I believed the letter to be of great public importance and one that called for public criticism. – Mahatma Gandhi

The above statement was made by Mahatma Gandhi in the contempt case initiated against him by the Bombay High court in 1920. Recently Prashant Bhushan made similar statements before Hon’ble Apex Court which found him guilty of the Contempt, he said that "I do not ask for mercy, I do not appeal to Magnanimity, I am here to cheerfully submit to any penalty". Therefore because of the similarity between the above two statements several of the supporters of Prashant Bhushan are drawing a comparison with Mahatma Gandhi. It is humbly submitted here that before I begin I would like to clarify that nowhere I intend to critically analyze the judgment whereas in this section I merely intend to shine the light on every aspect of the facts and issues involved in the case.

In brief it can be said that the whole thing started with a couple of tweets made by Prashant Bhushan during the lockdown period with regard to the Supreme Court. Therefore Hon’ble Apex Court takes suo moto cognizance of the above tweets and held Mr. Prashant Bhushan guilty of contempt having committed criminal contempt of the court.  According to the learned Bench, the two tweets are based on distorted facts and lays down a scurrilous and malicious attack on the entire supreme court thus amount to committing ‘criminal contempt’. 

That initially, Mahek Maheshwari filed a petition before Hon’ble Court with the prayer to initiate contempt proceedings against Prashant Bhushan. The Registry placed the above petition before the administrative side of the court seeking direction as with regard to the listing of the case since the consent of the attorney general of India has not been obtained to file the said petition. Thereafter on 220/07/2020 Hon’ble Supreme Court takes suo moto cognizance and issue notice to Mr. Prashant Bhushan as well as Twitter Inc.

Learned Advocate Shri. Dushyant Dave represented Mr. Bhushan and briefly his arguments revolve around the right of freedom of speech/opinion and the bonafide intention of Mr. Bhushan behind those tweets. He also raised a preliminary objection that the said petition cannot be treated as suo moto contempt petition because the present proceedings have been only initiated after the petition filed by Mr. Maheshwari and that he has failed to take the consent of Attorney General of India. According to Mr. Dave first tweet was written to highlight the hardship faced by the citizen such as those in detention, those destitute and poor, as their grievances were not being addressed due to non-physical function of the court for the past 3 month due to lockdown, further he submitted that the second tweet is his bonafide opinion about the state of affairs in the country and the role played by the last 4 CJI in it.  He relied on the judgment of the Hon’ble Court in Bhrama Prakash Sharma & Ors Vs. The State of Uttar Pradesh wherein the court held that what should weigh with the Court is that, whether the reflection on the conduct or character of a judge is within the limits of fair and reasonable criticism and whether it is mere libel or defamation of the Judge. It is submitted, that if it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt. Therefore according to Mr. Dave in the present case the allegations are against CJI and past 3 CJI’s and in no way it can be said to interfere with the due course of justice or administration of law, thus the present contempt proceedings against Mr. Bhushan should not be continued.  

According to the court, the issue involved here is no more res Integra. The Hon’ble Apex Court in its judgment held that the source of the power of the court to initiate contempt proceedings are under Article 129 of the Constitution and it is not in any manner limited by the provisions of the Contempt of Court Act 1971.  It is apposite to say that section 15 only provides for the procedure to be followed for the contempt proceedings and as far as suo moto proceedings are concerned the court on its own can initiate the suo moto proceedings on the basis of information received by it moreover there is no requirement for taking consent of the Attorney General of India because the court is exercising its inherent power. Hon’ble Court in its judgment with regard to the interference of administration of justice, Hon’ble Court rejected Mr. Dave arguments and held that It held that it is not necessary to prove affirmatively that there has been actual interference with the administration of justice, If a defamatory statement is likely to interfere with the proper administration of justice, then it can be a ground for contempt. Also, the comments that can have an inevitable effect of undermining the confidence of the public in the judiciary, can be a ground for contempt.

At last, it can be said that there must be a balance between the right to speech and court power to punish its critics. The issue concerned needs more clarification as there are various contradictory judgments of the Hon’ble Court itself,  in its earlier judgment (Shiv Shankar 1988 ) court has held that criticism of the court that does not impair and hamper the administration of justice cannot be punished as contempt.  Therefore it is apposite to say that in the near future one can hope to read more of the judgments involving the interpretation of the Contempt of Courts.

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