The June 2009 Contempt of Courts case against civil rights activist took an interesting turn on August 25 when the three-member bench of the Supreme Court, headed by Justice Arun Mishra, requested the Chief Justice of India (CJI) S. A. Bobde to place this matter before an “appropriate bench”. Justice Arun Mishra observed: “I am short of time. I am demitting office. This is not a question of punishment, it’s a question of faith in institution. When people come to the court for relief when that faith is shaken, that’s a problem”.

There have been sharp reactions among jurists, politicians and the general public regarding the contempt issue. In fact, the entire issue of contempt of courts against Prashant Bhushan has acquired wider dimensions and as many as 1,500 lawyers have come out in his support.

Looking at the gravity of the matter, I hope that CJI S. A. Bobde would do well to constitute a Constitution Bench to look at all facets of the case, as well as the Contempt of Courts Act of 1971 that tends to conflict with India’s democratic system, one which gives due importance to the freedom of speech and expression as a fundamental right as provided for in the Constitution. I would very much appreciate if the new bench of the Supreme Court, to be constituted by the CJI, looks at the working of the foreign democracies that have done away with contempt doctrines on the grounds that such laws are archaic. American courts have stopped using the law of contempt; England abolished the offence of “scandalizing the court” in 2013; and Canada too has modified its law substantially and made it conditional in its operation.

The Sanyal Committee was set up in 1961 to review the contempt of courts law as the government acknowledged it was “uncertain, undefined and unsatisfactory in the sense that the jurisdiction to punish for contempt touches upon the fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression”. However, the Sanyal Committee recommendations did not provide any definition of civil or criminal contempt. Interestingly, the Law Commission of India had suggested that the provision regarding the contempt of courts should be restricted to civil contempt, that is, wilful disobedience of judgment of the court. The existing provisions regarding criminal law require a second look.

Let us examine how the current law is defined. As per the Contempt of Courts Act, 1971, contempt refers to the offence of showing disrespect to the dignity or authority of a court. The Act further divides contempt into civil and criminal contempt; civil contempt refers to the wilful disobedience of an order of any court, while criminal contempt includes any act or publication which: (i) ‘scandalises’ the court, or (ii) prejudices any judicial proceeding, or (iii) interferes with the administration of justice in any other manner.

Viewed in this light, can we say that civil rights lawyer Prashant Bhushan is guilty of criminal justice for his tweets? Views on this sensitive matter may vary. As for the three-member bench, it has convicted the noted lawyer of criminal contempt. However, Prashant Bhushan has his own perspective in the matter. He says that he has been “grossly misunderstood” and has therefore refused to apologise.

Let us analyse the two controversial tweets: one tweet featured a photograph of CJI S. A. Bobde astride a Harley Davidson, while the second tweet talked about posterity that would perceive the role played by the top court in the past six years. Of this, former Attorney General and jurist Soli Sorabjee has said that the court could have ignored the first tweet and the second tweet was merely an opinion. “People have different beliefs. Do you punish people for having beliefs which are not to the liking of the Supreme Court?”, he questioned.
Former Supreme Court Judge Justice Kurien Joseph is of the view that the contempt issue should be heard by a Constitution Bench and called for an “intra-court” appeal in the case. He said that “Important cases like these need to be heard elaborately in a physical hearing where only there is scope for a broader discussion and wider participation. Men may come and men may go, but the Supreme Court of India should remain forever as the court of justice”. He thinks that the matter should be heard at least by a bench consisting of seven senior-most judges.

Former Chief Justice of India R. M. Lodha has wondered why the Supreme Court moved so quickly to hear the suo motu (on its own motion) criminal case against Bhushan via a virtual court hearing amid a pandemic. According to him, “scandalizing the court or lowering the dignity of the court are not stereotype phrases. They are impersonated with a lot of meaning and substance that requires deeper reflection”. Attorney General K. K. Venugopal has said that the court should not punish Mr. Bhushan and let him go with a warning.

Amidst the battle of wits, the apex court, on August 21, asked Bhushan “to rethink” and set deadline of August 24 for his “unconditional apology”. Prashant Bhushan, in his statement, reiterated his earlier stand on an apology, maintaining that his tweets have had no effect of “destabilizing the very foundation of this important pillar of Indian democracy”.

In his August 24 statement, Bhushan made it clear that his tweets represented his bona fide beliefs, which he continued to uphold and “an apology for expression of these beliefs, conditional or unconditional, would be insincere” and amount to a contempt of his conscience.
I have tremendous respect for the highest court of our land and consider it to be a saviour of democracy and freedom of speech and expression. Its verdicts therefore should not have an unsettling effect on the freedom of speech and expression.

Democracy, of course, is the main characteristic of our Constitution. Voices of dissent are inherent in our democratic system. The judiciary is expected to rise to the occasion, clear the mist and strengthen the spirit of democracy. Indeed, we have to take care of the status and dignity of courts and interests of administration of justice. At the same time, due importance must be given to freedom of expression as provided for in our Constitution. In the end, this contempt of courts issue must not be allowed to become an ego matter. Socrates said, “To know yourself is the beginning of wisdom”. It is time we understood ourselves as individuals and as a nation. Then alone shall we have the wisdom to appreciate the glory and dignity of the basic institutions of our democracy, as well as freedom of expression. Over to the Chief Justice of India Sharad Arvind Bobde.

PS: This article was written before the Supreme Court pronounced its verdict on the sentence to be awarded to lawyer and activist, Prashant Bhushan in connection with the contempt of courts case against him. On August 31, 2020, the Supreme Court imposed a token fine of Re.1 on Bhushan, holding him guilty of criminal contempt of court for his two tweets. I believe that the fine, howsoever small, sends out a wrong signal about what it means for our freedom of expression. A mere warning would have sufficed.