Re: Prashant Bhushan - A Flawed Case of Contempt

BY: Areeb Uddin Ahmed & Altamish Ilyas Siddiki

Writer’s Note: With reference to the present write-up, the words “alleged contemnor” are used in reference to Mr. Prashant Bhushan even though he was found guilty in the said judgment, since the judgement starts, as in any criminal proceedings, on the premise of Mr. Bhushan being innocent until found guilty. Since the write-up is about analysing the judgement itself which WOULD have found Mr. Bhushan as guilty or non-guilty, the authors have taken liberty to use “alleged” as a prefix while referring to Mr. Bhushan.

The judgment dated 14.08.2020 In Re: Prashant Bhushan [Suo Motu Contempt Petition (Crl.) No.1 Of 2020], like the case of M Siddiq (D) Through LRs v. Mahant Suresh Das & Ors. [Civil Appeal Nos. 10866-10867 of 2010], commonly known as Ayodhya case, doesn’t disclose the author/s of the judgement in this three-judges judgment. Be that as it may, the entire judgment is devoid of any reference to the reply affidavit filed by the alleged contemnor. That apparently an affidavit of about 130-odd pages excluding annexures was filed by the alleged contemnor, with specific instances to support his tweet. However, none of the those instances have been dealt in the judgment. In a contempt proceeding, one of most important factors is the consideration and acknowledgement of the reply-affidavit which have been filed by the alleged contemnor especially considering that the alleged contemnor also took the defence of bonafide belief of it being true. But in this very case, the court failed to even analyse the reply given by alleged contemnor. It is interesting to note that in majority of the cases which the Court referred in the judgment, the courts have extensively dealt and analysed the reply of the alleged contemnor.

Contempt and the contemporary view

The Supreme Court, in a case tilted Mukhtiar Singh vs State of Punjab [1995 SCC (1) 760], has stated stated, “it was expected of it to notice and scrutinise the evidence and after considering the submissions raised at the bar arrive at appropriate findings. In vain have we searched through the cryptic judgment of the trial court, the reasons which prevailed with it.” [Emphasis supplied] The court then goes on to hold, “On the plainest requirement of justice and fair trial the least that was expected of the trial court was to notice, consider and discuss, howsoever briefly, the evidence of various witnesses as well as the arguments addressed at the bar.”

In P.N. Duda v. P. Shiv Shanker and others, [(1988) 3 SCC 167], referred to in Re: Prashant Bhushan (Supra), the then Minister of Law and Justice, Shiv Shanker gave a speech in which he criticised the policies of the court and also how the court is tilted towards the ‘Elite class’. In this case also, the Supreme Court took into consideration the reply made by ‘alleged contemnor’ and his whole speech was analysed which did not vandalised the ‘authority’ and ‘dignity’ of the court. Also, in the case of Dr. D.C. Saxena v. Chief Justice of India, [(1996) 5 SCC 216], also referred to in Re: Prashant Bhushan’s case (Supra), the court literally analysed each and every statement which was filed by the Petitioner and the reasoning given behind the ‘contempt’ was coupled with logic. The bench in Para 35 stated that a citizen is entitled to bring to the notice of the public at large the infirmities from which any institution including the judiciary suffers from, healthy and constructive criticism are tools to augment its forensic tools for improving its justice counsel that law ought to be astute to criticism.

If one is to apply the same legal principle in the case of In Re: Prashant Bhushan (Supra), one would observe that the judgment refers to the submissions of Mr. Dave, Senior Advocate, representing the alleged contemnor, only with reference to citation of judgments and exactly once where he challenged the maintainability of the proceedings. Not even once the factual aspect of the tweets, as was argued in detail by Mr. Dave, and widely reported by media outlets, has been referred to, in the entire judgment. The legal effect of this grave omission is that if the party seeks to challenge the judgment in review, the bench would not have the benefit of going through the defence of the alleged contemnor as the bench would then only be concerned with the judgment itself which in this case is devoid of mentioning the defence/reply affidavit of the alleged contemnor. This would, in all probability, cause serious prejudice to the alleged contemnor.

Legal reasoning. What’s that?

Now coming to the (absence of) legal reasoning in the judgement. The first time the actual legal analysis of the tweets in question doesn’t start until Para. 60 at page 93 of a 108 page judgment. However, this is where it gets really interesting. Para. 62 dissects the first of the two tweets into different parts and then from Para. 63 onwards goes on to challenge these on factual or legal grounds, in order to dismantle the supposed defence of the alleged contemnor (which the judgment doesn’t even mention what it actually was) but the judgment gives in detail reference to Supreme Court being on summer vacation, Court being closed due to Covid-19 pandemic, goes on to state the data with respect to how many cases were actually heard through video conferencing, how many were actually disposed off and then also decides to mention a case where the alleged contemnor appeared in a writ as a litigant apart from appearing in various other matters as an advocate. The court thus comes to conclude in Para. 64, “In this premise, making such wild allegation thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous” even though the court, in para. 63, while explaining the Covid-19 situation admitted that “physical functioning of the Court was required to be suspended”. It is also common knowledge that the Supreme Court, all high courts and sub-ordinate courts were working under restricted functioning, with only few benches hearing and that too only, urgent matters. Thus, terming this as “false, malicious and scandalous” appears to be only half true. Holding someone guilty on this, therefore, seems like a really long stretch.

Second tweet’s analysis starts at Para. 64, dissected into three parts in para. 65 and this is where the judgment loses sight of dealing the tweet with established legal principles. Instead of countering it with plausible legal arguments, as was done with the first tweet, no such attempt is made with the second tweet. The judgment then jumps to conclude “There cannot be any manner of doubt, that the said tweet is directed against the Supreme Court” at para. 68. How such conclusion is reached, the judgment fails to give out.

Further, in Para. 70, the judgment takes up the admission of Mr. Bhushan stating “the alleged contemnor No.1 has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up many issues of public interest concerning the health of our democracy and its institutions and in particular the functioning of our judiciary and especially its accountability.” and the same is not disputed. However, in the same para. instead of giving him the benefit of doubt due to the above stated admission, the judgment then states “instead of protecting the majesty of law has indulged into an act, which tends to bring disrepute to the institution of administration of justice”. How such conclusion is reached, it is not explained. It appears that the court, instead of concluding how the tweets are covered under plethora of law explained in the preceding paras., has taken it on its face value as an act which brought “disrepute to the institution of administration of justice”. The judgment nowhere even attempts to bring out how the law stated in preceding paras. is applied to the two tweets.

The judgment, in the same para. then continues with “allegations, which are malicious in nature and have the tendency to scandalise the Court are not expected from a person, who is a lawyer of 30 years standing.” How did the court conclude it to be malicious is not explained. How the same would have the “tendency to scandalise the Court” is also missing any legal application.

In Para. 71, the judgment states “The tweet has the effect of destabilising the very foundation of this important pillar (with reference to Indian Judiciary) of the Indian democracy”. How the court reaches such conclusion, like the previous para., is patently missing from this para. as well. The judgment then goes on to state “The tweet clearly tends to give an impression, that the Supreme Court, which is a highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy.” The judgment however makes no attempt if the said impression was indeed factually wrong or not, like it attempts with the first tweet. The court simply goes on to accept it as a wrong impression, with no explanation whatsoever as to why and how such conclusion is made.

Para. 75 then concludes “The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’”. The judgment is devoid of any reasoning as to how the tweets are based on distorted facts but concludes to hold so, giving out a guilty verdict against the alleged contemnor.

The word “malicious” is used 18 times, out of which a total of nine times are attributed to the alleged contemnor without ever going into how the malice is made out.

Fair criticism: is no crime but, a necessary right

Justice Iyer, in Re: S. Mulgaokar [(1978) 3 SCC 339], referred to in Re: Prashant Bhushan (Supra), has rightly observed that to criticise a judge fairly, albeit fiercely, is no crime but a necessary right.  Furthermore, J. Iyer also laid down several principles which need to be taken into consideration when a contempt proceeding is to be initiated. The second principle talks about harmonising the values of free criticism and the functions of the judge. It was also observed that where the freedom of expression is fairly exercised, sub-serves public interest in reasonable measure then ‘public justice’ cannot grab it or manacle it. Hence, in Re: Prashant Bhushan (Supra), the court failed to analyse how the recorded tweets ‘vandalised’ the administration of justice, which is one of the most important factors. In the judgment has been given to these six principles laid down by J. Iyer, but the bench only explained what J. Iyer stated and no connection or reasoning was drawn from the principles itself.

It is noteworthy to quote what Gajendragadkar C.J. observed in Special Reference 1 of 1964 - “We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely ad with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their ‘judgments’, the fearlessness, fairness and their objectivity of their approach.”

Hence, it is quite obvious to state that the Court in Re: Prashant Bhushan (Supra) has failed to analyse the basic principles of ‘contempt law’. The most important part here is to note that in majority of cases above mentioned, the court dealt with: a) The contentions of the ‘alleged’ contemnor. b) The reply or the ‘alleged publication’ which was in question. c) The court gave a detailed reasoning behind the conviction or dismissal but in this particular case, has failed to do so. In Queen v Gray, [(1900) 2 QB 36] Lord Russel of Killowen, C.J indicated a guideline which can be a used as guiding factor for contempt proceedings, “Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court”. However, such principles have been lost sight of, while deciding the case in Re: Prashant Bhushan (Supra).

To conclude, a reference should be drawn to Para 47 of Re: S. Mulgaokar, where Justice Iyer has rightly stated that the key word is “Justice”, not “Judge”, the key note thought is unobstructed public justice, not the self-defence of a Judge. The corner stone of the contempt law is the accommodation of two constitutional values - the right to free speech and the right to independent justice. The ignition of contempt action should be substantial and malafide interference with fearless judicial action, not fair comment on trivial reflections on the judicial process. However, such principles have been used as a mention with respect to established principles but has failed to apply them with legal reasoning, with no factual basis, in order to arrive at a guilty verdict.

About the author(s)

Areeb Uddin Ahmed is a law student at Faculty of law, Aligarh Muslim University, Twitter handle - @Areebuddin14; LinkedIn Profile- @ Areeb Uddin

Altamish Ilyas Siddiki is an advocate practicing before the Supreme Court of India and Delhi High Court, Twitter handle - @AltamishSiddiki; LinkedIn Profile- @Altamish Siddiki