Updated: August 16, 2020 9:21:51 am
On Friday, a three-judge Bench headed by Justice Arun Mishra found two tweets by lawyer Prashant Bhushan amounting to “serious contempt of court”. Although the judgment (whose author has not been clearly indicated) has not said anything new, it revives the debate about the relevance of the contempt law, how judges in mature democracies deal with criticism of judges, and how India’s courts have been responding to the contempt-versus-freedom-of-speech debate.
Why did the court reject Bhushan’s arguments?
One of his tweets was about the role of the last four Chief Justices of India, and the other about the current CJI riding an expensive motorcycle while the court was in “lockdown”. While Bhushan later expressed some regret, the Bench on Friday held that the latter tweet was not against the CJI in his individual capacity but as the head of the judiciary.
The Bench took exception to the “lockdown” remark and said that from March 23 to August 4, its various Benches had 879 sittings and heard 12,748 matters. It noted that Bhushan himself not only appeared as a lawyer during this period but also challenged the FIR against him. The court refused to accept his tweet as written out of anguish.
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As to the other tweet, the court held it tends to give an impression that the highest constitutional court of the country has in the last six years played a vital role in the destruction of Indian democracy. “There is no matter of doubt, that the tweet tends to shake the public confidence in the institution of judiciary… the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law,” it Bench said. The key word ‘vital’ was not in the original tweet, but is mentioned in Para 71 of the judgment.
It rejected the argument that the tweet was only a matter of opinion, although several experts including former Supreme Court judges have said or written similar things. On January 11, 2018, the four then senior-most judges of the Supreme Court had held a press conference to say that the “credibility of the highest judiciary is at stake”. They asserted that democracy would not survive as an independent judiciary is the hallmark of successful democracy. The Supreme Court had tolerated such a strong indictment of itself, and then CJI Justice Dipak Mishra. Now, it has chosen not to ignore tweets by a lawyer-activist. It said magnanimity cannot be stretched to such an extent that may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of judiciary and thereby damaging the very foundation of the democracy.
Faizan Mustafa, currently Vice Chancellor of NALSAR University of Law, is an expert on constitutional law, criminal law, human rights and personal laws. He has authored eight books and written more than 300 articles, some of which have been quoted by the Supreme Court. He runs a 'Legal Awareness' web series on YouTube.
What were the court’s key arguments?
ACTUAL INTERFERENCE: It rejected the argument that the tweet has not really interfered with administration of justice. It relied on Brahma Prakash Sharma (1953) in which a Constitution Bench had held that it is not necessary to prove affirmatively that there has been actual interference with the administration of justice, and it is enough if a defamatory statement is likely, or tends in any way, to interfere with the proper administration of justice. The Bench also relied on C K Daphtary (1971) in which the court had held that “we are unable to agree with him that a scurrilous attack on a judge in respect of a judgment or past conduct has no adverse effect on the due administration of justice. This sort of attack in a country like ours has the inevitable effect of undermining the confidence of the public in the judiciary”.
SCANDALISING OF COURT: The Bench cited Baradakanta Mishra (1974) in which the court had held that scandalising of the court is a species of contempt, and a common form is vilification of the judge. The question the court has to ask is whether the vilification is of the judge as a judge, or as an individual. If the latter, the judge is left to his private remedies, and the court has no power to commit for contempt. On Friday, the Bench held that fair criticism of judges, if made in good faith in public interest, is not contempt. How to ascertain the good faith is the million-dollar question. The Bench said that for ascertaining good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field, and the intended purpose.
How is it similar or different from previous rulings on contempt?
There is nothing new in the judgment compared to earlier ones on the contempt law, several of which the Bench quoted. In a case involving Bhushan himself (2001; proceedings against him were dropped), the Supreme Court had held that personal criticism of a judge does not amount to “fair criticism”. Justice Ruma Pal had summarised the contempt law when she observed that “to ascribe motives to a judge is to sow the seeds of distrust in the minds of the public about the administration of justice as a whole and nothing is more precarious in its consequences than to prejudice the mind of public against judges of the court who are responsible for implementing the law”.
Criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 means any publication which (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceedings, or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. In 2006, government brought in an amendment, which now provides “truth” as defence provided it is bona fide and in public interest.
The expression “scandalising the court” has not been defined. In Shiv Shankar (1988), the Supreme Court held that a criticism of the court that does not impair and hamper the administration of justice cannot be punished as contempt.
This raises the question whether a mere tweet can really obstruct the administration of justice, and whether judicial dignity is so fragile that it would get lowered in mature Indian people’s eyes because of an activist-lawyer’s opinion.
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How have other democracies dealt with the question of contempt?
While the judgment is consistent with precedents in the Supreme Court, it falls short of ideals set by other mature democracies. In 1987, after the Spycatcher judgment by the House of Lords, the Daily Mirror had published an upside down pictures of three Law Lords with the caption ‘You Old Fools’. Lord Templeman refused to initiate contempt proceedings and said he was indeed old and whether he was a fool was a matter of perception though he personally though he was not a fool.
British judges often take no notice of personal insults if uttered without malice. After the Brexit judgment, the same publication headlined its report “Enemies of people” but no contempt notice was issued.
In England, contempt proceedings were last invoked in 1930 and the contempt law has now been abolished. In India, the Law Commission in its 274th Report in 2018 recommended continuance of such law because of the high number of such cases (586 pending between July 1, 2016 and June 30, 2017).
US Supreme Court judge Hugo Black, in Bridges (1941), observed that “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly apprises the character of American public opinion… an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resent, suspicion, and contempt much more than it would enhance respect.”
Like the US, Canada too punishes people for contempt only when there is imminent or clear danger to the administration of justice. In Kopyto (1987) it was said that courts are not “fragile flowers that will wither in hot sea of controversy”. In Mundey (1972), Australia’s Justice Hope said “there is no more reason why acts of courts should not be trenchantly criticized than acts of public institutions”.
Why is the contempt law seen as problematic?
The judge himself acts as prosecutor and victim, and starts with the presumption of guilt rather than innocence. Contempt proceedings are quasi-criminal and summary in nature. As British judge Lord Denning observed in Metropolitan Police Commissioner (1969), contempt “jurisdiction undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it.”
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