On Friday, the Supreme Court held advocate Prashant Bhushan guilty of the contempt of court for his two tweets regarding the institution of the Supreme Court and the office of the Chief Justice of India (CJI).
A three-judge bench of Justices Arun Mishra, B R Gavai and Krishana Murari signed off the judgment holding Bhushan guilty of criminal contempt. The bench fixed August 20 as the next date when it would hear Bhushan on the quantum of punishment.
In doing so, the Court remarked that the tweets were an attempt to shake the very foundation of constitutional democracy and so they must be dealt with an 'iron hand'. It added that if such an attack is not dealt with, with a requisite degree of firmness, it may affect the national honour and prestige in the comity of nations.
"Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them", the court held.
The court added that the tweets were based on the distorted facts and amounted to committing 'criminal contempt'. The decision was passed in suo motu contempt proceedings that were initiated by the apex court against Bhushan on July 22.
According to the Court, the tweets brought disrepute to the administration of justice and could undermine, in the eyes of the public, the dignity and authority of the Supreme Court in general and the CJI's office in particular.
In his defence, Bhushan had said that his tweets were protected under freedom of speech and expression. He cited several national and international judgments along with excerpts from speeches delivered by Supreme Court judges on the topic of freedom of expression and democracy.
"Such expression of opinion however outspoken, disagreeable or however unpalatable cannot constitute contempt of court. It is the essence of a democracy that all institutions, including the judiciary function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution". Bhushan said.
Speaking to the Leaflet, Advocate-on-Record (AoR) Sunil Fernandes said "Mr. Prashant Bhushan has always been a trenchant critic of the establishment. His acerbic comments and truculent tweets are only too well known. But convicting him for Contempt, unfortunately, does not augment the prestige of the Supreme Court".
Fernandes added "We expect a greater degree of tolerance and a larger heart by our judges, to criticism levelled against it. After all the SC is the greatest defender of civil liberties and free speech of this country".
The SC, Fernandes said, should have simply warned him to be careful with his tweets in the future and let him off with a warning. Convicting him will attract a greater deal of entirely avoidable criticism of the SC.
AoR Prasanna S who also spoke to The Leaflet said "The judgment's reading of the powers under Article 129 (The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself) of the Constitution to be in effect untrammeled and unlimited renders all other provisions including Articles 19, 20 and 21 otiose in matters of critiquing the court".
He added he would be surprised if our constitution makers had in fact intended article 129 to override articles 19, 20, and 21.
The first tweet remarked on the CJI riding a motorcycle while keeping the Supreme Court in lockdown. It reads as the following-
"CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!"
The apex court said that this tweet was capable of giving an impression to a layman, that the CJI was enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he had kept the Supreme Court in lockdown mode and denying citizens their fundamental right to access justice.
The Court said the statement, that the Supreme Court is in lockdown is factually incorrect even to the knowledge of Prashant Bhushan. It noted-
"It is common knowledge that on account of COVID-19 pandemic the physical functioning of the Court was required to be suspended. This was in order to avoid mass gathering in the Supreme Court and to prevent an outbreak of pandemic. However, immediately after suspension of physical hearing, the Court started functioning through video conferencing. From 23.3.2020 till 4.8.2020, various benches of the Court have been sitting regularly and discharging their duties through video conferencing. The total number of sittings that the various benches had from 23.3.2020 till 4.8.2020 is 879. During this period, the Court has heard 12748 matters n the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India"
The court thus said that the statement that the CJI has kept the SC in lockdown mode and is denying citizens their fundamental rights to access justice was patently false. It also highlighted that Bhushan had himself appeared on various occasions in a number of matters through video conferencing.
The second tweet pertained to the role played by the Supreme Court in the last six years in the destruction of democracy. It particularly noted the role of the last 4 CJIs. It reads as the following-
"When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs."
The court held that this part of the tweet clearly gave an impression that the Supreme Court, which is the highest constitutional court in the country, had in the last six years played a vital role in the destruction of the Indian democracy.
Bhushan had defended himself saying "To bona fide critique the actions of the Chief Justice of India (CJI) or a succession of CJIs, cannot and does not scandalise the court, nor does it lower the authority of the court".
"The scurrilous/malicious attacks by the alleged contemnor No.1 (Prashant Bhushan) are not only against one or two judges but the entire Supreme Court in its functioning of the last six years", the bench said.
The court said, "We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice".
The said tweet, the court held, undermined the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronted the majesty of the law.
It added that such an attack that tends to create disaffection and disrespect for the authority of the Court could not be ignored. Bhushan, the court said, was expected to act as a responsible officer of the Court.
It further commented that Bhushan, being part of the institution of administration of justice, instead of protecting the majesty of law had indulged in an act tends to bring disrepute to the institution of administration of justice. The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing, the court added.
"In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest", said a bench led by Justice Arun Mishra.
The court discharged Twitter Inc. from contempt proceedings. The court said Twitter Inc. showed its bona fides immediately after the cognizance was taken by the Court as it had suspended both the tweets. It also added that Twitter is only an intermediary and that it does not have any control on what the users post on the platform.
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