On July 22, a Supreme Court bench comprising Justices Arun Mishra, BR Gavai and Krishna Murari took suo moto cognizance of two “tweets” posted on social media site, Twitter, by Advocate Prashant Bhushan and initiated contempt proceedings against him.

It all began with an apparently ill-drafted petition filed by an advocate, Anuj Saxena on behalf of one Mahek Maheshwari, on July 9. The contempt proceedings seem to have been initiated on the basis of this petition as well as a news report in the Times of India which quoted one of the tweets by Bhushan. The tweet read as follows:

“When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

The other tweet was:

CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice! pic.twitter.com/PwKOS22iMz

— Prashant Bhushan (@pbhushan1) June 29, 2020

The apex court order dated July 22 states that the aforementioned tweets “have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large”.

The next date of hearing in the matter is set for August 5.

The complete order may be read here.

Bhushan, a civil rights lawyer, has appeared before quite a few benches of the top court throughout the lockdown representing people’s interest affected in many ways due to Covid-19 and the resultant lockdown. The contempt proceedings against Bhushan have been questioned by many.

The irony of it all was brought forth by an Indian Express article where it juxtaposed the views of the same bench of judges in another matter, with regards to dissent. While hearing a matter regarding disqualification proceedings initiated against Sachin pilot and other MLAs of Rajasthan, the bench observed, “Voice of dissent in a democracy cannot be shut down”. When the same dissenting voice was raised against the court and the Chief Justice of India, contempt proceedings bid to shut down the same voice.

Not very long ago, Mahua Moitra, Member of Parliament had commented that “the Supreme Court is a court of rights, not contempt”. In her article published by The Wire, she made a mention of a hearing when Bhushan appeared the apex court and the bench hauled him up for “insulting the institution” and asked why they should hear him given that he appeared to have no faith in it. She even cited a case titled Bridges v. California (1941), whereby the US Supreme Court judge, Felix Frankfurter, said, “the judges must be kept mindful of their ultimate public responsibility by a vigorous stream of criticism expressed with candour, however blunt.”

Another article published by The Print written by its Editor-in-Chief Shekhar Gupta stated how the contempt case against Bhushan could set a bad precedent. He said, “ Politicians run on political capital. Professions run on professional capital… So the Supreme Court’s capital is its own stature. It’s for the court to decide how fragile that stature is”.

The law on contempt

The specific law on contempt is the Contempt of Court Act, 1971. This Act divides contempt into civil and criminal contempt. While civil contempt occurs when there is disobedience of any order, judgment and so on, of the court, criminal contempt entails words that scandalise or lower authority of the court, prejudices due course of proceedings of the court to interfere with administration of justice.

The punishment for contempt is simple imprisonment upto six months or fine of Rs. 2,000 or both. The Act, under section 12 states that “the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.”

The power of the court to punish someone for contempt is derived not from any law but the Constitution itself. Article 129 of the Indian Constitution states that, “The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” The Act is only in furtherance of this provision and lays down the meaning of contempt as well as the punishment and procedure for initiating proceedings.

Over the years, the need for the offence of criminal contempt has been questioned and in response been justified over and over again.

The Law Commission of India report No. 274 focused on Review of the Contempt of Courts Act, 1971 (Limited to Section 2 of the Act) and was released in April 2018. The report largely concluded that the high number of civil (96,993) and criminal (583) contempt cases pending in various High Courts and the Supreme Court justify the continuing relevance of the Act. It further stated that “amending the definition of contempt may reduce the overall impact of the law and lessen the respect that people have for courts and their authority and functioning.”

The report also drew reference from the British law which abolished the offence of scandalising the court in its contempt laws but noted that the offence continued to be punishable under other laws in the country.

The debate still lingers but the question remains whether the two tweets by Prashant Bhushan amount to ‘scandalising the court’ and lowering the dignity of the court that is now deemed to be hurt. The question that the bench really needs to address is when does criticism turn into contempt?

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