Prashant Bhushan and Anr. v. Court

By Khushboo Dev

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Citation: 2020 SCC Online 698

Act: Contempt of Courts Act 1971

Principle: Prashant Bhushan's public criticism of the judiciary amounted to contempt of court and did not fall under the Right to Free Speech

Facts

On 22 July 2020, a three-judge bench in the Supreme Court of India, constituted by Justice Arun Mishra, Justice BR Gavai and Justice Krishna Murari, initiated Suo Moto Contempt Proceedings against veteran lawyer Prashant Bhushan over two of his tweets.

The Court argued that Bhushan’s tweets attempted to “shake the very foundation of Constitutional Democracy” and had the “potential to shake the public confidence in the judicial system”. Meanwhile, Bhushan argued that his tweets were a part of his Right to Free Speech under Article 19 of the Indian Constitution and constituted a Bona Fide criticism of the Court. He also asserted that the tweets were directed towards the Chief Justices in their individual capacity and were not meant to interfere with the course of Justice in the Supreme Court.

 

Issue

Whether Prashant Bhushan’s tweets amount to Criminal Contempt under the Contempt of Courts Act 1971?

 

Reasoning

1. On the question of Free Speech under Article 19(1)(a) of the Constitution,

The Court asserted that, though Free Speech is essential to any democracy, it cannot be used to malign the Judiciary, which is one of the key institutions of Democracy. While Fair Criticism is allowed in a democracy, such criticism cannot be allowed to be scandalous and malicious. The court further added that Right to Freedom of Speech under Article 19(1) is not an absolute Right and is subject to Reasonable Restrictions under Article 19 (2). Thus, the exercise of Right to speech must be balanced in a manner that it does not infringe the rights of others.  The bench thus, rejected the defence of the contemnor and asserted that where the attack on the judiciary is beyond permissible limits, the court has the duty to undertake due course of action.

 

2. On the question of the intention of the Contemnor to make Bona fide Criticism in order to seek improvement in the functioning of the institution,

The court held that, in law, Right to Fair Criticism is contrasted against acting out of malice or attempting to bring down the reputation of the Judiciary. It argued that the profession of Lawyers is a noble one, which may lose all its dignity and worth if lawyers are allowed to make malicious and scurrilous allegations against the very institution that they are a part of. The court highlighted that when a lawyer who has 35 years standing, makes malicious comments against the Judiciary and then amplifies the comments by the averments made in the affidavit in reply, it cannot be said that the comments were made in good faith.

Discussing the Section 13 of the Contempt of Courts Act 1971, the court argued that in order to hold truth as a valid defense, the defence must be in public interest and the request for invoking the said defence must be bona fide. The Court held that the averments of Bhushan that the Court had surrendered to the executive, that the Ayodhya verdict was faulty, that the Supreme Court has not been able to stand to correct the executive etc., are all based on political considerations and thus, cannot be defended on either of the two grounds mentioned above.

 

3. On the request of the Attorney General to the court to show magnanimity and not impose any sentence on Shri Prashant Bhushan,

The bench held that the contemnor failed to submit an apology even after being advised by the senior most functionary in the legal profession to do so. Furthermore, even the request of the courts made to the contemnor have gone in vain. Under such circumstances, the Court concluded that a simple issuance of warning by the contemnor will not suffice.

 

4. On the question of Principle of Proportionality wherein the balance always tilts in favour of the Fundamental Rights as against the Restrictions,

The court held that after weighing the pros and cons, rights, and limitations and rendering a considered decision regarding conviction, it finds no room to accept this submission of the contemnor regarding the principle of Proportionality. It concluded by saying that “The judgment can be criticized. However, motives to the Judges need not be attributed, as it brings the administration of justice into disrepute”.

 

The Honourable Supreme Court concluded that under the settled legal position, the defence taken by Bhushan can be said to be neither bona fide or in the public interest. The comments in the tweets as well as the reply affidavit are capable of affecting the confidence of the public in the Judiciary as a whole. Furthermore, conduct of Prashant Bhushan, throughout the proceedings reflects adamance and ego, which does not have any place in the system of administration of justice. The Court added that from the very beginning, it was desirous of giving quietus to this matter and therefore, directly or indirectly, continued to persuade the contemnor to end this matter by submitting an apology and save the grace of the institution as well as the individual. However, Bhushan neither showed regret in spite of the court’s persuasion or the advice of the learned Attorney General. Thus, the court asserted that it must impose a punishment on the contemnor.  

 

Judgement

The court pronounced Prashant Bhushan guilty of Criminal Contempt and sentenced him with a nominal fine of Re.1. The court further added that in case the contemnor fails to pay the nominal fee, he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.

 

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Khushboo Dev is a second-year student at National Law University who aims to become a distinguished Criminal Lawyer. She feels very strongly for Women and Minority Rights and aspires to advocate for the same. An absolute go-getter, she can often be found debating with her peers on contemporary legal, political and feminist issues. A trait she is very proud of (that sometimes works against her) is her commitment to being “perfect” at everything she does.