In Re: Prashant Bhushan and Anr. Alleged Contemnor(S), Suo Motu Contempt Petition (Crl.) No.1 OF 2020

In Re: Prashant Bhushan and Anr. Alleged Contemnor(S), Suo Motu Contempt Petition (Crl.) No.1 OF 2020

Case Number - Suo Motu Contempt Petition (Crl.) No.1 OF 2020

Bench - Arun Mishra, B. R. Gavai and Krishna Murari

Date - August 14, 2020

Facts of the Case

Prashant Bhushan, the contemnor, is a senior counsel who has spent more than three decades pursuing public interest litigation in a number of high-profile cases. On July 22, 2020, a petition was filed in the Supreme Court of India against him and Twitter Inc., calling to the Court's attention two tweets issued by Prashant Bhushan. The purported tweets, which were directed against the Chief Justice of India (CJI) and the Supreme Court, revealed a deterioration in the judiciary's independence and the Supreme Court's role in safeguarding Indian democracy. Twitter finally took down the tweets. The Court filed suo moto contempt proceedings against Prashant Bhushan on July 22, 2020, claiming that his tweets were defamatory.

Issues

1. Whether the tweets published by Mr. Prashant Bhushan are healthy criticism of the Indian judiciary or has dashed the public confidence in the institution of the supreme court?
2. Whether these tweets were against the CJI's as Individuals or CJI's as the CJI of the Supreme Court?
3. Whether the acts of Twitter Inc. have also tampered the reputation of the Indian judicial system?

Laws

1. Article 19(1), Constitution of India
2. Article 129, Constitution of India
3. Article 142 (2) (5), Constitution of India

Arguments

During the hearing, Prashant Bhushan clarified that the initial tweet was intended to express his outrage at the inconsistency between the CJI's reckless attitude in riding a motorcycle without a mask while also preventing the SC from physically functioning and hearing cases during the COVID-19 lockdown. He further claimed that the contempt proceedings were an attempt to restrict free speech and a violation of the Indian Constitution's Article 19(1)(a). Prashant Bhushan argued that the second tweet was a genuine expression of his views on the Court's (and previous four CJIs) role in undermining democratic ideals in the last six years (since the ruling BJP party came to power), and that it could not be considered contempt because it was protected under the Indian Constitution.

According to established Supreme Court of India conventions, the CJI is the 'Master of the Roster,' with the authority to assign cases to judges. The use of this authority by CJIs to facilitate the rise of authoritarianism, majoritarianism, and the suffocation of dissent in the country has been brought into question in the past. In that context, Prashant Bhushan contended that raising issues about the way CJIs behave themselves in their individual roles does not constitute scandalising the Court. As a result, the tweets cannot be claimed to be interfering with the administration of justice or the due course of justice by the Court.

Judgement

The Court began by asserting that there is a strong link between comments influencing judges' strict performance of their duties and their ability to obstruct the administration of justice. It stated that such insinuations (as in the present case) implicitly degraded the Court's dignity and amounted to eroding public faith in judges' integrity by looking back at precedents. By doing so, the Court necessarily associated criticism of judges with criticism of the Court, dismissing Prashant Bhushan's contention that comments about judges' individual conduct had no bearing on the administration of justice.

The Court, on the other hand, tried to make a key distinction. It was noted that while vilifying a judge as a judge merits contempt, vilifying a judge as an individual does not; in such circumstances, judges are left to seek private remedies. To adjudicate contempt cases, it primarily relied on six elements proposed by Justice V.R. Krishna Iyer in Re: S. Mulgaokar, (1978) 3 SCC 339: (i) prudent use of the Court's contempt power, (ii) balancing constitutional values of free speech and the need for fearless curial process, (iii) separating personal protection of libelled judges from community confidence in the prevention of obstruction of justice, (iv) discretionary exercise of authority, (v) not being hypersensitive even when criticisms exceed limits, and (vi) declaring contempt in cases of malicious, scurrilous, intimidatory, or threatening conduct beyond acceptable limit.

The Court then went into a study of the tweets, using Justice V.R. Iyer's multifold tests as a guide. It split them into multiple pieces, noticing that the initial section of the first tweet ('CJI rides a 50 lakh motorcycle belonging to a BJP leader without a mask or helmet at Raj Bhavan, Nagpur without a mask or helmet') was a personal attack on the CJI as an individual. The second half of the initial tweet, however, was an 'undisputed' attack on CJI in his function as administrative head of the judiciary ('at a time when he puts the SC in lockdown mode, depriving citizens their fundamental rights to access justice').

It's worth noting that the Court found various problems in the initial tweet's factual correctness. Despite being physically unable to function, the Court was able to carry out its duties via video conferencing facilities during the period of the disputed tweets. According to the Court, a "patently false" and "wild charge" about the CJI has the potential to shatter public trust in the judiciary as well as undermine the authority and administration of justice in that setting. As a result, the Court dismissed Prashant Bhushan's claim of genuine criticism based on his distress about the courts' physical non-functioning.

The Court issued three observations in response to the second tweet. First, Prashant Bhushan's statement that the Supreme Court had played a significant role in allowing the breakdown of democracy, as well as the role of the previous four CJIs in sustaining it, was a direct attack on the Supreme Court and the CJI. Second, the Court determined that Prashant Bhushan acted irresponsibly, and that the tweets were not qualified for good faith protection, based on the vast reach of the tweet and the character of the contemnor (who is a lawyer).

The tweets had the impact of dissuading an ordinary applicant and risked losing faith in the Supreme Court and the CJI when taken together. The Court also concluded that if it failed to protect itself from vicious insinuations like the one in this instance, it would open the floodgates to other judges facing similar attacks. Preventing malicious attacks was, in effect, a matter of national honour and reputation in the community of countries, and it had to be handled with determination. Prashant Bhushan was found guilty of contempt of the court by the Supreme Court.

Regarding Twitter's role in the contempt proceedings, the Court discharged the social media site as an intermediary, taking cognizance of its action in suspending tweets in July after receiving notice from the Court. According to a number of campaigners, the company created a hazardous precedent that could apply to future defamation claims. Twitter stated in a statement that it was committed to defending free speech in India and around the world.

Prashant Bhushan asked the Court to have the proceedings invalidated on procedural grounds following an adjudication by the Court on August 14, 2020, in which the Court found Prashant Bhushan guilty of contempt claiming that a copy of the complaint on the basis of which the suo motu notice was issued was not served on him. He also challenged the decision on other grounds, including vagueness (due to inconsistency with other Court decisions on the subject), free speech, truth (as a defence), the principle of proportionality (tilting the balance in favour of rights over restrictions), and an attempt to compel him to apologise.

Given the widespread public debate that followed the Supreme Court's decision, the Court decided on some of the aforementioned points in its sentencing order of August 31, 2020. It determined that shaming the Supreme Court constituted a violation of the right to free speech. While fair criticism was a legal defence, it was subject to reasonable limitations under Article 19(2) due to public interest concerns. The Court noted, among other things, that judicial criticism was not protected under Article 19(1)(a) of the Constitution and amounted to contempt. When there was a contradiction between freedom of expression and maintaining judicial independence, one could not win.

"While it was not possible to control the thinking process and words functioning in one individual's mind, when it came to expression, it had to be within the constitutional bounds," the Court concluded. Without a doubt, legitimate criticism of the system is desirable while exercising one's right to free expression, and judges cannot be overly sensitive, even when distortions and criticism go too far. The same cannot, however, be expanded to allow nasty and scandalous statements. The contemnor's other arguments were similarly dismissed for similar reasons."

As a result, instead of a harsh punishment, Prashant Bhushan was convicted to a modest fine of INR 1.