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Wednesday, August 04, 2021

Calling contempt by its name

Supreme Court has issued criminal contempt notices in the rarest of rare cases, applying strict standards. Prashant Bhushan's case meets those criteria.

Written by Hitesh Jain |
August 19, 2020 7:46:13 pm
Plea in SC to debar persons on trial in serious offence cases from contesting electionsThe court said it will consider the matter after two weeks. (File)

In June, Prashant Bhushan, advocate in the Supreme Court, posted two tweets critical of the Supreme Court of India. Matters came to a head when a three-judge bench of the SC found Bhushan guilty of criminal contempt of court over these tweets. The legal fraternity has been split regarding the case. In such a scenario, we must take a step back and analyse the judgment and its repercussions.

Contempt of court is a special jurisdiction of the court, one which is to be exercised cautiously. The objective behind exercising such jurisdiction is to ensure that the confidence of the public remains instilled in the judiciary and the dignity of the courts of law is upheld.

It is lamentable that India in the recent past has witnessed a series of attacks by “institutional disruptors” against judges who are unwilling to toe their line. This criticism has often turned into browbeating the judiciary for a favourable verdict. The narrative is that if the verdict is against the institutional disruptors, the Court has either acted hand-in-glove with the executive or the verdict is called yet another “ADM Jabalpur” moment.

However, it must be appreciated that the Supreme Court in the past has adopted a magnanimously charitable attitude. Judgments have always been subject to extensive criticism both in terms of their repercussions on different stakeholders and the legal footing on which they are based. The Court has recognised that the jurisdiction for contempt of court is not intended to uphold the personal dignity of the judges but is to be exercised when a malicious or false statement is made against a judge acting in his official capacity, which has an adverse effect on the administration of justice.

The Supreme Court has resorted to issuing criminal contempt in rarest of the rare circumstances. An example which comes to mind is the case of Arundhati Roy, wherein the contemnor shouted abusive slogans against the court. We must also recall that this is not the first instance where Prashant Bhushan has criticised the Court’s functioning. However, with the two tweets posted by him, it is apparent that this criticism is based on a distortion made in a calculated manner to lower respect for the judiciary and destroy the confidence of the public in this institution.

The first tweet posted by Prashant Bhushan stated that the Chief Justice of India rode a motorcycle without a mask, while keeping the Supreme Court in a lockdown, thereby denying citizens their rights to access justice. The first part of his tweet regarding the criticism made against the CJI was recognised by the Supreme Court to be a criticism against the judge in his personal capacity and did not amount to criminal contempt. It is the latter part of the tweet which the judgment proved was concocted and false, which shakes the confidence of the public in the judiciary as it was directed against the office of the CJI. During this period, as the SC judgment noted, the Court heard more than 12,000 cases. It was all the more appalling that Bhushan made such a patently false statement as he himself has appeared before the Supreme Court in this lockdown period both as a lawyer and a litigant. Can those who defend Bhushan point out how it is a legitimate criticism to concoct and fabricate a charge with the sole intention of making the Supreme Court suspect in the eyes of common people?

The second tweet posted by Bhushan stated that when historians would look back to see how democracy has been destroyed in last six years, they will mark the role of the Supreme Court and the last four Chief Justices of India. Again, the first part of the tweet regarding democracy being destroyed was regarded to be a personal political opinion and ignored. However, the latter part of the tweet is a disparaging remark against the institution of the Chief Justice of India and indeed the entire Supreme Court. Can there be a greater example of summary contempt of court than castigating the entire Supreme Court and all its judges in the last six years?

Lastly, the Supreme Court in the contempt matter of Arundhati Roy had made a pertinent observation. It has stated that while deciding whether a particular statement is contemptuous or not, one must see all the surrounding circumstances — including the person responsible — for the comments and the knowledge he possesses in the said field. In this context, Bhushan is an advocate with a high standing at the bar. Therefore, being an officer of the court, it was expected that while legitimate criticism is acceptable one must refrain from indulging in concoctions and fabrications to scandalise the court.

A common feeling which binds people is that in troubled times if other alternatives fail, it is the judiciary that they resort to. In order to prevent the erosion of trust between the public and the judiciary, silence is not an option when malicious and deliberate attempts are made to erode that trust. Those who repeatedly resort to spreading falsehood, scurrilous and malicious attacks against an institution must not benefit from the generosity of the Court.

The writer is a senior lawyer based in Mumbai and managing partner, Parinam Law Associates

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