Judge: “Are you trying to show contempt for this court?”
Mae West:” I was doing my best to hide it.”
The above lines are relatable in Prashant Bhushan’s contempt of court case. Recently, the case of contempt of court was filed against Prashant Bhushan, who is a Public Interest Lawyer in the Supreme Court of India. On August 14, the Supreme Court discovered the two tweets constituting “serious contempt of court”. The case pertains to two tweets posted by Bhushan on June 27 and 29. The first tweet commented about an undeclared emergency and the role of the Supreme Court and the last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying a Harley Davidson superbike in his hometown Nagpur during the coronavirus outbreak.
In this case, Bhushan has refused to apologize and has stood his ground that the tweets reflected his “bonafide beliefs”, even as the Supreme Court gave him time to rethink and tender an unconditional apology or withdraw his statement. The court has now reserved its verdict on the quantum of punishment, if any, to be imposed on Bhushan.
During the hearing, Mr. Venugopal emphasizes that Mr. Bhushan has ‘done a tremendous amount of public good.’ He urged the court to not punish him.
Advocate Rajeev Dhawan, appearing for Bhushan, called attention to the first tweet and claimed that Bhushan was not trying to convince that the top court did not work, but was commenting on the prioritization of cases. He also said that if Bhushan’s statement is read as a whole, it says he has the highest respect for the judiciary but has a critical opinion about four chief justices. After all, morality is the basis of things and truth is the substance of all morality
Dhawan added that the Supreme Court will swoon if it does not face grievous criticism. The Court is not immune from criticism, and it is our responsibility to make responsible criticism.
The advocate said the top court’s August 20 order stated that it will only accept an “unconditional apology” from Bhushan ‘is an exercise of coercion.’
Bhushan told the top court that his tweets were a constructive and effective criticism of the judiciary and that withdrawing his statement or tendering an insincere apology would amount to “contempt of my conscience”. “An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be made sincerely,” Bhushan said. “This is especially so when I have made the statements bonafide and pleaded truths with full detail which have not been dealt with by the court.”
I want to say that, A nation that swears or vows by Satyameva Jayate (May truth be Victorious) as its awe-inspiring national motto can ill afford to ignore truth as a defense to a charge of contempt. The National Commission to Review the Working of the Constitution (NCRWC) has even recommended the insertion of a provision in clause (2) of article 19 of the Constitution of India to grant a defense of justification by truth on satisfaction as to the bona fides of the plea in matters of contempt. Principles of contempt jurisprudence need a strict revision in order to accomplish fairness and justness in judicial procedures and attitudes.
Judges would be prohibited from fabricating their own theories for the purposes of investigation. Making a charge of contempt questionable would lead to greater responsibility on the part of both, the functionaries as well as the judges. Truth as a defense to a charge of contempt has been accepted by the English and Australian courts as well. Truth must be a complete defense for the motive of indicting a judge accused of various charges in order to imbue faith amongst parties facing contempt charges. The Contempt of Courts (Amendment) Bill, 2003 aims to accomplish the aforesaid purpose.
Test of public interest acts as a sufficient guide- line for allowing truth as a defense. Transparency, free speech, an open society, demand of rule of law, needs to be satisfied. No man is above law and it follows naturally that no institution, be it the Legislature, Executive or the Judiciary, is above law. Beechere has quoted, “Laws and institutions like locks, must occasionally, be cleaned, wound up, and set to true time.”
Public acquaintance of truth about Judiciary is extremely coveted in a constitutional democracy but it has a huge price tag in the form of erosion of faith and public esteem in the institution of Judiciary. The acceptability of the amendment requires a change in the attitude of judges in the form of acceptance of open criticism of their activities. The amendment seeks to respect the difference between forms of justification and their exercise.
An unaccountable judiciary gives rise to a threatened individual existence. Basis of contempt may differ, but the basis of justification ie: truth, will remain the same. Unless and until there are strict internal safeguards for assessing the conduct of judges in place, we need truth as a defence to a charge of contempt.
In the words of the Mahatma Gandhi, “ Many people, especially ignorant people, want to punish you for speaking the truth, for being correct, for being you. Never apologize for being correct, or for being years ahead of your time. If you are right and you know it, speak your mind. Speak your mind even if you are in the minority once. The truth is still the truth.”
This article is written by Khushboo Naik and edited by Rupreet Kaur Dhariwal.