Eminent activist and lawyer Prashant Bhusan has landed in trouble in view of his two tweets, which became the fodder for a suo moto contempt case being initiated against him.
The first tweet, included a photograph of the Chief Justice of India on a motorcycle, which also stated about the denial of the citizens’ right to access justice, and the second tweet was critical of the judiciary and the last four Chief Justices, concerning the alleged role played by them in weakening the democracy. The court in its judgment has found the first tweet to be a false statement, especially when it has held a total 879 sittings amid this pandemic and heard over 12,700 matters and the second tweet along with the first tweet to have undermined the “dignity and authority of the institution of the Supreme Court and the CJI” and that such statement, according to the court, “directly affronts the majesty of law”.
The bench of Justices comprising Arun Mishra, BR Gavai and Krishna Murari observed while holding Prashant guilty of contempt that, “strong arm of the law must strike a blow”. Further, the bench also found the tweets made by him were based on “distorted facts”, which were according to it, “undoubtedly false, malicious and scandalous” allegations. The bench further observed that a counsel was bound, as a “responsible officer of the court”, to protect “the majesty of law”, and not to indulge in an act that “tends to bring disrepute to the institution of administration of justice.”
There has been mixed reactions over these developments. The Bar Councils of Maharastra and Goa passed a resolution supporting the Supreme Court’s judgment against Prashant Bhusan. However, around 12 former Judges have led support of 3,000 eminent persons in favour of Bhusan, according to whom, “ the tweets were a bona fide expression of concern regarding the functioning of the Supreme Court” and which according them is, “the fundamental right of every citizen”
Interestingly, Bhusan is reported to have invoked Mahatma Gandhi in the context of the judgment passed by the Supreme Court of India, convicting him in the suo motu contempt case and has said, “I do not ask for mercy. I do not appeal for magnanimity. I am here to cheerfully submit to any punishment that the court may impose.”
The Court may have rightfully within the premises of the prevalent law on contempt held to the best its prudence that, the act of Bhusan as contumacious and which can also find support in the 274th report (2018) of the Law Commission, that has recommended continuance of the offence.
But there is a fundamental question which needs to be answered, the question as to what weighs more, ‘the law of contempt’ or ‘the fundamental right of freedom of speech’ guaranteed to every citizen of India and which the Supreme Court itself is bound under the constitution to protect and for which the ‘very majesty of law’ has been adorned over the courts. The opinion of a citizen if frivolous, cannot and mustn’t be potent enough to belittle or vilify the institution of judiciary if it is ignored for the contempt it deserves, but the judiciary should embark upon necessary course correction, in case there is a fair criticism, this is important in the interest of the very Constitution it is obliged to serve, uphold and protect. As Lord Atkin said, “Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
The views of the Constitution bench of the Supreme Court in Baradakanta Mishra versus the Registrar of Orissa High Court, 1974, also holds relevance in the present context, wherein the court said, “....the keynote word is ‘justice, not ‘judge’; the ‘keynote thought is unobstructed public justice, not the self-defense of a judge; the cornerstone of the contempt law is the accommodation of two constitutional values – the right of free speech and the right to independent justice. The ignition of contempt action should be substantial, and mala fide interference with fearless judicial action, not fair comment or trivial reflections on the judicial process and personnel.”
In saying so, it is not suggested that, the contempt action against Bhusan is anything new. Among others the Supreme Court has in 1975, awarded the then Chairperson of the Bar Council of India, with a jail sentence for six weeks and incapacity to practise law for a period of three years. Wherein it said that, “right to continue to practise is subject to the law of contempt” and also retorted that, “Can the legal profession be practised by committing the contempt of courts”?
But what happened in a Press conference held on January 13, 2018 by the then four senior Judges of the Supreme Court— Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph — apparently to express their bona fide views on the issues relating to the functioning of the Supreme Court, supposedly didn’t lower the “majesty of law”, which has perhaps instilled confidence in the fellow citizens about the broad approach of the Court in upholding freedom of speech and taking care of concerns which are genuine and ignoring those made otherwise.
Here, one would look up to the great jurist, Lord Denning, for he believed that, the contempt jurisdiction shouldn’t be used to uphold own dignity, for “that must rest on surer foundations”. According to him, “We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.”
(The writer is a legal and public policy expert and a Distinguished Adjunct Professor of Law and Media Studies at School of Mass Communication, KIIT University. He can be reached at sjyotiranjan3@gmail.com.)