Image: Prashant Bhushan, Supreme Court
Supreme Court of India in its recent judgement has held Senior Advocate Prashant Bhushan guilty of contempt and imposed a fine of “Re 1”, for his recent tweets criticizing Chief Justice of India SA Bobde and the Supreme Court. If lawyer-activist doesn’t pay the fine by September 15 he can face jail for three months and a ban from practising in Supreme Court for three years.
The Supreme Court’s order has been criticized by members of civil society including former judges, retired bureaucrats, journalists and lawyer. International Commission of Jurists (ICJ), expressing concern over Supreme Court’s order to convict Advocate Prashant Bhushan of criminal contempt, has urged for a review of criminal contempt laws in the country.
The judgment has risen following questions:
Aren’t judgements like these a threat to our fundamental rights? What about the freedom of speech granted by the Constitution itself? Since when did “expressing concern” about the functioning of judiciary become a criminal contempt?
The contempt controversy: what actually happened?
One of the two alleged tweets was a comment on a photo of Chief Justice of India, admonishing him for posing across superbike belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet. In the second part of the same tweet, he made a statement that CJI has kept the Supreme Court in lockdown mode denying the citizens their fundamental rights to access justice.
In his second tweet, Bhushan had commented on an “undeclared emergency” in India and role of Supreme Court and last four judges. He stated that democracy has been substantially destroyed in India during the last six years. He alleged that the Supreme Court has played an active role in the destruction of democracy and the role of last four Chief Justice in allowing it.
What did Supreme Court held?
The Supreme Court took up the case suo moto on July 22 and handed down the guilty verdict within three months. Even though the Parliament had laid down a legislative framework for contempt, the Apex Court has retained its inherent jurisdiction on the matter and has decided this may be activated suo moto that is on the ‘court’s own motion’.
Supreme Court said- “The Indian Constitution has given a special role to the constitutional courts of this country. The Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds.”
The Supreme Court in its judgement observed that these tweets tend to shake the public confidence in the institution of judiciary. The bench also observed that while under Article 19(1), citizens are entitled to, make fair criticism of the judiciary. However, this criticism must not exceed the limits and must not scandalize the judges and institution of administration of justice, as it will entail the proceedings of contempt of court.
Issues related to alleged judgement
The problem began with the registration of case itself, when an advocate from Madhya Pradesh, Mehek Maheshwari, filed one of the most abominably worded petitions of all time in Supreme Court complaining about Bhushan’s tweet on CJI SA Bobde and his viral photos with Harley Davidson superbike.
Secondly, in Bhusan’s case, the contempt petition was presented without the approval of the Attorney General, which is a requirement under the Act. The court on its administrative side took a decision to allow it to proceed it as a suo moto matter overlooking this requirement, leaving all of us in dark as to who authorized it and how. By far this the most dangerous part of the judgement, this assumed power- to open the doors of the court at will and punish for contempt.
The court relied on Article 129 of the Constitution as being the court of record with power to convict for contempt while avoiding mandates of Contempt of Courts Act and the need to obtain sanction from Attorney General. However, this power was not disputed. What is actually in dispute is the procedure prescribed by law to activate that power in compliance with the Contempt of Court Act. The court should have invited the Attorney General for the first level of scrutiny as there is a purpose behind this safeguard as it is a policy decision that the Attorney General takes in the public interest.
While it may seem like a trifling point, it is indicative of a key point of criticism of the court- how cases dealing with fundamental rights and significant constitutional issues are being ignored but cases like these which are not a matter of urgency are scheduled with such readiness.
The judges have clarified that they do not have anything to say about the first part of the tweet that is, comment on a picture of CJI riding a superbike and points out that contempt is not meant to provide a shield against imputation against them as individuals. What really upset the court was the ‘denying of individuals of their fundamental rights to access justice’ part and the part where ‘connection between CJI and political parties’ were imputed. As for Bhushan’s defence, those observations were factual, having been reported in the media and on social media. From then on the judgement is personally directed at Prashant Bhushan, losing its constitutional identity and the question arises ‘what exactly is his crime?’
The fact, which alone makes the judgement erroneous, anti-constitutional and a setback for the right to speech and life is- is this even constitutional being held guilty of a crime without a charge being framed, or the red herring on mal-intention to scandalize court?
What is really scary is that the judgement like this will have precedent value, and maybe not now but later, this can be used against even those who are celebrating the judgement. Times change politics change, the question is what follows next? Do we, the citizen of constitutional democracy, really want to be legally forbidden from speaking our minds against courts?
Also, it is very interesting to note that the Court very conveniently chose a practising lawyer- who has been practising for 30 years- to hold guilty of contempt of court. Lawyers are front line defenders of independence of the judiciary. They, more than anyone else, know what is going inside courts. Lawyers document judicial history in their memories. It is, therefore, no accident that the court chose to target a lawyer, rather than press. But now, if any of them have a critical view of the functioning of the court, no matter how well-reasoned, they will keep it to themselves. At last, it all boils down to the question that – Whether Mr Bhushan was really guilty of contempt or a victim of politics and power?
 Supreme Court contempt verdict shows Prashant was right
 Prashant Bhushan and the issue of contempt: why did the Supreme Court target a Lawyer?
 Prashant Bhushan’s tweet tends to shake public confidence in institution of judiciary: SC.
 The Prashant Bhushan contempt case is about Power and Politics, not law.