Judiciary is one of the three most important pillars of democracy and any violation of the order of the court is looked at as an act of disrespect towards the court of authority. Contempt of court, therefore, is an offence in law that punishes those who lower the authority or is disobedient or disrespectful towards a court of law and its officers in the form of behaviour that opposes or defies the authority, justice, and dignity of the court. The constitution of India under Article 129 provides the Supreme Court all the powers to punish for the contempt of itself. It also gives the power for deciding upon matters of contempt of court even in courts subordinate to it. Article 215 provides the High Courts the power of contempt of itself and there is also a legislation which governs the powers, the Contempt of Courts Act, 1971. It defines and limits the power of certain courts and regulates their procedure in relation to it.
As defined in section 2(a) of the Contempt of courts act, 1971 contempt of court means civil and criminal contempt whose definition has been given in section 2(b) and section 2(c) respectively. Civil contempt means “willful disobedience to any judgment, decree, direction, order, writ or other processes of a court or willful breach of an undertaking given to a court”; and criminal contempt means “the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which (i) scandalize or tends to scandalize, 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 proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”.
Contempt of court vis-a-vis freedom of speech
As per Article 19(1)(a) of the Indian Constitution, every citizen of the country is envisaged with the Right of free expression. Under this right, every citizen of the country can express their thoughts, opinions, remarks, etc. This right is of utmost importance in the exercise of free speech and expression. However, Article 19(2) of the constitution of India reduces the scope of Art.19(1)(a) taking into consideration the act of contempt of court. In E.M. Sankaran Nambbodiripad v T. Narayanana Nambiar it has been held that while Article 19(1) (a) guaranteed the freedom of speech and expression, Article 19(2) showed that it was also intended that contempt of court should not be committed in exercising that right.
However, with reference to the subject in discussion i.e. the case of Senior advocate Prashant Bhushan: In Re Prashant Bhushan & Anr., Alleged Contemnor who on 14th August 2020 has been found guilty under the Contempt of Courts Act,1971 by the supreme court of India for two of his social media posts. It had been held by the courts that “His posts scandalised the Supreme Court as an institution”. The court in this case has taken cognizance of the tweets as being derogatory for the CJI S.A Bobde. Prashant Bhushan in his tweet mentioned the CJI and wrote that “The CJI rides a Rs 50-lakh motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!” Another tweet that was reproduced in the court said, “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs”. The court took suo moto cognizance on the ground of “shaking the believe in the judiciary”. Very often and in many cases of contempt, there has been multiple pondering upon Article 19(1)(a) which gives every citizen the right to dissent, express opinion whereas in the same article clause (2) restricts the people from exercising the full right conferred by the constitution under article 19(1)(a). It is seen that Article 129 and 215 conferring the Supreme Court and High Court with contempt power run contradictory to the article 19 (1)(a) which guarantees freedom of speech and expression. In C.K. Daphtary, Sr. Advocate and Others v. Shri O.P. Gupta and others,the first respondent contends that the existing law imposes unreasonable restrictions on a citizen’s right to freedom of speech guaranteed under Article 19(1)(a).
Restoring Honour through contempt of court?
Dissent of the democracy and any other root cause of the decline of democracy and other things is rooted in the constitution of India. The use of Contempt of court is exercised not to restore the dignity of the Judge or a panel of judges but to restore the dignity of the court when it is subjected to dissent and destabilize the belief of serving proper justice in the people of the country. Such comment towards a judge is to be seen as a libel and it would be the will of the judge to issue libel proceeding against the said person of authority or anyone else. However, it is observed in the recent past that judges were assigning to themselves the task of reviving their self-esteem under the guise of judicial dignity, curbing the fundamental right of free speech which includes fair criticism. It is seen that courts in many of the cases have just been hypersensitive towards the criticism and it is nothing but gross misuse of power to stop any kind of criticism whether fair or contemptuous concerning the judiciary. We are a democratic country and these measures are just opposite to what democracy should be and undermine free speech. The people are of supreme importance in a democracy and therefore have a right to criticize if they are not happy with any of the services. Prashant Bhushan later did apologize for one of his tweets saying that it was a mistake on his part to not notice that the bike in the picture was stationary and the CJI was not riding it but he claimed that the other tweet of his was of bona fide intention and that he was just putting up a fair criticism and had no intentions to scandalize the court. This power to punish anyone who challenges the judiciary seems ultra vires in many of the cases and is also free from checks and balances which gives it an upper hand in cases which include fair criticism but are booked under contempt. One of the important pillars of democracy carrying out activities like these is appalling and should be in all circumstances curtailed and repulsed. It should always be kept in mind that one of the important domains of democracy also includes questioning and the people should not be fearful of doing the same.When ideas, criticisms, and questioning are suppressed, it also suppresses the truth. As long as the criticisms do not obstruct providing justice to the citizens, it should always be welcomed and unless it constitutes unwarranted criticisms it should not be stopped. The Supreme Court in Rajesh Kumar Sing vs. High court of Judicature of Madhya Pradesh, Bench Gwaliorhad opined that “Judges, like everyone else, will have to earn respect. Court should not readily infer an intention to scandalize courts or lower the authority of courts unless such intention is established.”
Final Judgement of the Supreme Court
On 31st August 2020, the court in its judgment sentenced the contemner to Re.1 fine which has to be submitted to the registry of the court, failing which he shall have to undergo three months of simple imprisonment and a suspension of 3 years from practicing law. The supreme court stated that taking criminal contempt of this case was necessary as the contemner had previously in many interviews, with regard to sub-judice matters, attempted to bring down the reputation of the judiciary. “If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemn-or with a nominal fine of Re.1/ (Rupee one).” the court said in In Re: Prashant Bhushan and Anr.
The need for imposing a fine with a nominal amount of Re.1 draws attention to whether the Court has further tainted its reputation of being a bulwark to the citizen of the country by seeming to set a wrong precedent. Instead, the court observed that “The freedom of speech cannot be curtailed but rights of others need to be respected”. It also said while criticism is welcomed, one should not “attribute motives to judges” since they cannot go to the press to defend themselves and “can only speak through judgments”. The Court also considered that criticism of the judiciary is not protected under Article 19(1)(a) of the Constitution, in the judgment of the case. Although the court has said that the taking up of this case was not for fighting for the reputation of the judges been criticized in the tweet but to restore the ‘standing of the institution in the eyes of the public’, the fact that the court took this case suo motu is perceived otherwise by lawyers, ex-judges, activists, citizens, etc. It is merely seen as a vicious attempt to quash reasonable dissent.
It should be understood and put into consideration that the main rationale of this act is to punish people who intend to lower the authority of the courts or intend to make people lose their faith in the impartial judiciary and not just punish anyone just to save the image of the judges.
Also, it implores the mind to think whether a dissent by a lawyer, who has been standing 35years in the field having knowledge and experience of the Indian legal system, has less right to criticize the judiciary than a general public or dissent of any nature by anyone should be looked as a bona fide criticism of the judiciary if seen through the polluted glasses of corruption in the system. The law speaks to all with one mouth and there is also no special act that has been made to regularize expression of thoughts and opinions by learned experts of any field, therefore contempt is only unnecessarily invoked.
Case Laws mentioned:
1. E.M.Sankaran Nambbodiripad v T. Narayanana NambiarAIR 1970 SC2015: 1970 (2) SCC325
2. M.R.Prashar v. Dr. Farooq Abdhullah (1984) 1 Cr LC 433
3. C.K. Daphtary, Sr. Advocate and Others v. Shri O.P. Gupta and others AIR 1971 SC 1132
4. Rajesh Kumar Sing vs. High court of Judicature of Madhya Pradesh, Bench Gwalior AIR 2007 SC 2725
5.IN RE: PRASHANT BHUSHAN AND ANR. SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
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