PRASHANT BHUSHAN: CONTEMPT OF COURT

 The Author of this blog is Ms. Mauli Bisen, a student of 2nd year at LNCT University, Bhopal, Madhya Pradesh

In 1983 the statement “Criticism of the judiciary in all functional democracies is treated as a legitimate exercise of free speech” was made in context of the British Judicial Establishment in India. Affront the judges and questioning the judiciary was reviewed as obstruction to the administration of justice. Nevertheless, over the past 80 years this law has been practised in England. So, the law commission suggested its abolition in 2012. Through the Crime and Courts Acts 2013 it took place. According to the commission, this law violates the right to freedom of expression and this can’t be retained unless a strong justified principle lies with it. Also, that the conditions for committing this offence are uncertain. However, in English jurisprudence insulting judiciary is unkind and unacceptable but the criticism for the public interest in good faith is not an offence.

Respect to the different authorities should be the social norm in this era. However due to the person holding several rights for the protection of civil liberties and holding on to the several institutions of powers, things have changed entirely.

Now in India there were two tweets made by the lawyer Prashant Bhushan

On 29^th June, with the reference to the picture of CJI SA Bobde sitting on a Harley Davidson, presumed that the CJI had kept the Supreme Court under lockdown and enjoying the expensive bike rides[i].

Almost after a month on 21 July 2020, a petition was filed in Supreme Court by Mahek Maheshwari. As there was no consent of the Solicitor General or Attorney General so the registry placed this petition on the apex side of court to decide if it should be listed for hearing or not.

Since, the absence of consent from Attorney General under rule 3, the petition was not maintainable. Under rule 3(a) Supreme Court took power of Suo Moto and the apex court called it defective petition and it was compounded. Henceforth, converting the petition which comes under rule 3(c) to the rule 3(c) Suo moto petition was improper. The consciousness step taken by the supreme court was without jurisdiction[ii].

Under section 15 of the Contempt of Courts Act 1971[iii], supreme court and high court are enabled to consciousness Suo moto or on the motion consented by Solicitor General. Henceforth, under section 15(1)(b)[iv] it is not permitted to convert a petition into a Suo motu petition.

On 27^th June there was another tweet by lawyer Prashant Bhushan about the faith in judicial transparency and the working of 4 CJIs. On 22 July 2020 the Mahek’s petition was listed in the supreme court and it reappeared in the newspaper. To the second tweet, the apex court took Suo moto cognizance under section 3(a)[v] of the Contempt of the Supreme Court,1975 which is a sustainable procedure.

To analyse the tweets there was judgement of 108 pages which runs through the copious extract of Indian and English judgements.

Judgement Analysis

Our constitution provides everyone the right to freedom of expression. India is the signatory to the International Covenant on Civil and Political Rights, so this right is not only a safeguard to Indian Constitution. It compels to everyone to provide rights to express their ideas and information. Nevertheless, it is an absolute with restrictions of the limits where it is mandatory to respect every citizen and their rights. In the very same manner lawyers are entitled to belief, and expression. Particularly, they have rights to involve in the public discussions or matters concerning law and it also includes the criticism related to the working of law.

Henceforth, in this case the Supreme Court in order to this hate speech failed whether it degrades or it scandalizes the authority of the court. That either it is a criticism or it can hurt the constitutional democracy. Therefore, in this case the proceedings were conducted straight away without any relevance with his speech or with the evidence that he created. This is important to set an example that any person is simply not allowed to question the court.

Conclusion

This was not for the first time. In 2009 there was a case against Prashant Bhushan for contempt of court. In 2009 in an interview with Tehelka magazine he alleged former CJI SH Kapadia and KG Balakrishnan[vi]. He also alleged that the 16 preceding i.e. half of the preceding are corrupt. The petition was filed against this by Harish Salve and the Supreme Court took Suo moto cognizance. It has been heard 17 times till now by the bench of three judges. The apex found this maintainable on 10 November 2010 by the panel of judges[vii].

The Supreme Court asked Prashant Bhushan for an unconditional apology by saying “we have given many opportunities to express the regrets and he has not tweeted but given interviews to the press”. Prashant Bhushan also in his statement said that open criticism is important to protect democracy and its value. According to the supreme court this statement was to influence independent judicial function having said that the freedom of expression is important but others rights should be respected[viii].

During the argument the supreme court said that the freedom of expression is not an absolute right. And you may do a hundred good things but it won’t give you licence to do ten bad things.

On 4 August 2020 the bench said, such kinds of comments are hurting the dignity of the judges and the court and are not sustainable. It needs to be put to an end.

On the last hearing Supreme Court fined Prashant Bhushan to rs1 by 15 September. Failure to do so, would result in 3 months jail and debarment from law practice for 3 years[ix].

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[i]Twitter.com › pbhushan1 Prashant Bhushan (@pbhushan1) | Twitter

[ii]Indiankanoon.org › search › formIn...Suo moto review – Indian Kanoonp

[iii]Indiankanoon.org › doc, Web results The Contempt of Courts Act, 1971 – Indian Kanoon

[iv]Indiankanoon.org › doc, Section 15(1)(b) in the Contempt of Courts Act, 1971 – Indian Kanoon

[v]Indiankanoon.org › doc, Section 3(1) in the Contempt of Courts Act, 1971 – Indian Kanoon

[vi]Indiankanoon.org › doc, Shri Prashant Bhushan vs Deputy Commissioner Police ... – Indian Kanoon

[vii]www.thehindu.com › nationalSupreme Court defers 2009 contempt case against Prashant Bhushan to ...

[viii]In Re Prashant Bhushan vs Court That A Notice Was Issued To ... on 14 August, 2020

[ix]In Re Prashant Bhushan vs Incorrect Or That The on 31 August, 2020