Prashant Bhushan’s Contempt of Court Case: Is A Precedent Set Wrong?

Author: Simran Pradhan

3rd Year B.A. LL.B
Symbiosis Law School, Hyderabad

“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny & respectful… comments of the ordinary man”     – Lord Atkin

1. INTRODUCTION

Prashant Bhushan’s case has turned out to be one of the most debated topics of discussion in India right now, the judgement of this case has created twofold opinions among the general public, the 1st agrees with the decision of the SC while the others are demanding for a revision of the 31st august SC judgement. For example, post the SC decision, nearly 122 law students wrote an emotional letter to the CJI, requesting them to reconsider their judgement on Prashant Bhushan’s contempt case[1]

2. FACTS OF THE PRASHANT BHUSHAN CASE

Mr Prashant Bhushan is currently one of the most respected senior lawyers of SC of India with a litigation experience of more than 40 years. So, you must be wondering, how he ended up being charged for the contempt of court case, well it’s not the 1st time, in the year 2009,[2] Mr Prashant Bhushan was brought before the SC under contempt case but the case was still pending.

Long story short, this year Prashant Bhushan was again brought into the limelight because of his tweets on the Indian judiciary & the CJI Bobde which seemed to be derogatory in nature and as a result, a petition was filed against him for contempt of court. The court found him guilty of criminal contempt and thus, repeatedly asked him to apologize, which he denied. Finally, on the 31st of August, 2020, the court sentenced a fine of 1 rupee against Mr Prashant Bhushan which he has to pay before 15th of September,2020 . The court further stated that on failing to pay the fine, Mr Prashant Bhushan can be imprisoned for 3 months along with a 3 years ban on his litigation practice.

3. TIMELINE[3]

27th June 2020 – P. Bhushan tweeted about the “undeclared emergency” & “role of last 4 CJI in India”.

29th June 2020 – P. Bhushan tweeted about the present CJI S. A. Bobde.

9th July 2020 – petition against Mr Bhushan seeking criminal contempt of court was filed by advocate Mahek Maheshwari in SC.

22nd July 2020 – SC initiated the proceedings against Mr Bhushan & notice was issued to him.

2nd August 2020 – Mr Bhushan for the 1st time, in this case, refused to apologise for the court for his conduct. He further argued that his act was under the domain of freedom of speech under art. 19(1)(a).

5th August 2020 – The three-judge bench of the SC consisting of Arun Mishra, B.R. Gavai & Krishna Murari was constituted to hear the case.

14th August 2020 – Prashant Bhushan was held guilty of contempt of court (criminal).

24th August 2020 – Mr Prashant Bhushan submitted his arguments before the court where he stated that the tweets made by him on the judiciary/judges were made with bona fide intention for which he should not be held guilty, and thus he wouldn’t apologize for something that he has the right to do.

25th August 2020 – attempts were made by the attorney general to pacify the matter between the SC & Prashant Bhushan.

31st August 2020 – SC held Prashant Bhushan to be guilty of contempt of court and sentenced a fine of 1 rupee which ought to be paid before 15th September 2020 and in case of non-payment of the fine, Prashant Bhushan can be imprisoned for 3 months along with 3 years ban on his litigation practice.

 

4. CONTEMPT OF COURT (LAWS IN INDIA)

a) Meaning, definition & kinds

We know the meaning of the term contempt of court but what the contempt of court as it means is nowhere defined under the Indian constitution. But by referring to the contempt of court act of 1971 we can understand the proper definition of the contempt. The 1971 act not only defines the term “contempt of court but it also divides the contempt into 2 categories which are civil & criminal contempt.

The civil contempt simply means the willful disobedience of the directions/ decisions/ order/ judgement/ decree & etc. of the court, whereas the criminal contempt can be filed against an individual if he states/ acts or publishes anything which tends to scandalises/ scandalises the reputation of the Indian judiciary.

In India, both the SC & HC’s have been empowered to decide on matters relating to the contempt of court.[4] In case the court finds a person to be guilty of criminal contempt then the court can sentence such person to a maximum of 6-month imprisonment or fine him up to 2000 rupees or both.

b) Defences against the contempt of court case

  1. Innocent publication/ distribution,
  2. Fair and reasonable criticisms on judicial acts, opinion or administration of the court
  3. Truth & good faith[5]

 

c) Criticism of the contempt of court

  1. It’s against FR of freedom of speech under art. 19(1)(a)[6]
  2. The laws against contempt of court are extremely vague and arbitrary, it gives a lot of power to the Indian judiciary which can be misused by the judiciary to silence all criticism against them by the public.
  3. The provisions of contempt of court were introduced in India by the British during the British Raj. It’s interesting to note that the UK abolished the criminal contempt of court in the year 2013 but we in India still follow it.
  4. It’s against the spirit of democracy.
  5. It’s against international laws against the role of lawyers.

 

5. ARGUMENTS BY Mr PRASHANT BHUSHAN

Mr Prashant Bhushan has repeatedly denied apologising before the court for all the tweets he made against the judiciary, in his arguments he further defended his actions and stated that all the statements made by him were bonafide in nature and that he truly believes them to be true and even if he apologizes before the court, it will be insincere. Further, he also defends his beliefs by explaining each allegation he had against the judges of the SC;

  1. Starting with the then Chief Justice J.S. Khehar & Justice Arun Mishra in the 2013 case of Aditya Birla & Shahara Groups, he alleged that instead of setting up serious investigations against the corrupted politicians the bench dismissed the case stating insufficient evidence as to the reason.
  2. The second case which he discussed was of the Kalika Pul suicide case, where the deceased revealed that the constitutional bench set for his case demanded huge amount=n tod bribery from him, due to which he lost the case (Para 94 & 95).
  3. Medical college bribery case under then CJI Deepak Mishra was also elaborately described by Prashant Bhushan[7]. (Justice Loya case)
  4. The press conference of 4 senior-most justices of India showing distrust against the CJI Deepak Mishra was explained.

 

The statements filed by Mr Prashant Bhushan were so elaborate and out-front that the judges stated that “it pained and shocked us to read Mr Bhushan’s statement”. According to me, I believe that even though Mr Prashant Bhushan has “lost the case but he has for sure won a greater battle”.

6. WHY PRASHANT BHUSHAN CASE IS A PRECEDENT SET WRONG

The author here wants to highlight that the SC has been badly affected by the corona pandemic; the number of pending cases is increasing day by day. Out of the 19000 registered cases which were listed to be heard this year only 84 have been heard and to cope with it the SC is forced to conduct virtual trials, many of the important cases like that of the CAA, Art. 370, Habeas Corpus cases in J&K, etc are still pending before the honourable SC, but instead of deciding such important matter, the court took Suo Moto cognizance to 1st decide the matter of Prashant Bhushan where it clubbed two cases, including the 2009 contempt case of Mr Prashant Bhushan[8].

The decision of the court to take Suo Moto instead of hearing the attorney general (AG) at the beginning of this case is not a legal way; AG is also the guardian in the contempt cases his opinion in such matters also is significant, but then later when the court heard him, AG opined his view of not considering this case as a case for punishment and further said that many such statements are made towards the judiciary. I completely agree with the opinion of the AG

Many believe the judgment to be a failure of SC to provide a greater ruling, I believe that the SC should not be sensitive to criticism, we as a democracy are allowed to criticise the acts and conduct of even the government so why shall the judiciary be an exception. I know some will not agree to my opinion stating that we should have such restrictions to protect the faith and trust of the people on judiciary but at the same time, the laws which are existing for the contempt are so vague that it gives judges absolute power to curtail our freedom of speech and expression which is completely against the spirit of our democracy. One of the sticking examples of judicial overreach in contempt cases can be seen in the IIT Bombay case where they cancelled a government project due to certain issues, Justice Arun Mishra here stated “How can they back out from a government project? I will draw contempt against them, what is this nonsense? We will punish IIT Bombay. How can they back out after 6 months?” he said is a government-funded institute IIT Bombay can’t refuse government projects midway, it amounts to contempt of court.

 

References:

[1] Prashant Bhushan contempt case: 122 law students urge SC to reconsider judgment, TIMES OF INDIA, (cited on 9th September 2020),
http://timesofindia.indiatimes.com/articleshow/77834600.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst. (“The judiciary ought to reply for criticism by restoring public confidence. The judiciary ought to reply for criticism by changing its case. The judiciary ought not to charge for contempt of court when criticism arises out of anguish & love for justice, from a person aiding in the profoundness of the same justice he asks for others…”)

[2] The saga of humiliation: Here are 10 cases for which Supreme Court reprimanded Prashant Bhushan in the last decade ,  (cited on 9th august),

 https://www.opindia.com/2020/08/prashant-bhushan-supreme-court-contempt-reprimand-ten-cases/ (“In September 2009, the ‘PIL activist’ in an interview with Tehelka magazine had made serious allegations against former Chief Justice Sarosh Homi Kapadia. He insinuated that Justice Kapadia had committed ‘judicial impropriety’ by being a part of the forest Bench that heard the Niyamgiri Mining lease in Orissa and ruled in favour of Vedanta subsidiary Sterlite industries. In the same interview, Bhushan claimed that out of the last 16 to 17 Chief Justices, half have been corrupt. A contempt petition was moved by Senior Advocate Harish Salve, who helped the court as ‘amicus curiae.’ The petition was held to be maintainable and is pending before the Supreme Court for final judgement.”)

[3] Nihad Amani, PrashantBhushan contempt case: A timeline of events, THE SIASAT DAILY,

 https://www.siasat.com/prashant-bhushan-contempt-case-a-timeline-of-events-1961882/.

[4] Indian constitution 1950, Art. 215

[5] Truth and good faith as a defense against the contempt of court case was incorporated in the year 2006 in an amendment act.

[6] Indian constitution 1950, Art. 19(1)(a), “freedom of speech & expression”

[7] Prasad education trust matters.

[8] Supra note 2

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