Analyzing the concept of “Contempt of Court,” and sensationalisation of the Prashant Bhushan case.
Suraj Chathlingath, Writer
Illustration by Suryansh Deo Srivastava
What if someone commits any willful disobedience towards a judicial institution? Well, this question laid the foundations for the concept of “contempt of court”. The judiciary considers this to be a serious offense, one that can adversely affect the autonomy and dignity of these law up-keeping institutions of the land. Although, its relevance as a tool to protect the court of law, and to punish those who disrespectfully criticize these institutions has been under question. Voices of concern have always been there whenever such a proceeding is initiated, the proof of which can be seen in the latest contempt case against lawyer Prashant Bhushan. Recently, the Suo Motu contempt proceedings against the public interest lawyer Prashant Bhushan, initiated by the Supreme Court of India has hit the headlines, triggering confusion among the elite and general public alike, who may or may not have an idea of its original intent. Suo Motu cognizance drawn from Article 129 of the Indian Constitution, empowers courts to take the case on their own, to punish for contempt of itself. But such proceedings have met with questions from even inside the system, the recent likes of which including former Attorney General of India and Jurist Soli Sorabjee saying Supreme Court “overreacted” by taking up this contempt case against Prashant Bhushan. But this is not the first time such a proceeding has been initiated against Prashant Bhushan. Earlier in 2009, he was held guilty of contempt for his statements during an interview with Tehelka magazine, in which he said half the 16 Chief Justices of India were corrupt. This case is still awaiting judgement, and was deferred to September 10 by Justice Arun Mishra, citing he was “short of time”. Justice Mishra is demitting his office on September 2.
Now, who is Prashant Bhushan?
He is a veteran lawyer-activist, with almost three decades of experience practicing in the Supreme Court, often known for his role in many public interest cases. He was active among the faction ‘IAC,’ India Against Corruption, which campaigned along with Anna Hazare for the Jan Lokpal Bill, and even helped them in forming the Aam Aadmi Party afterward. He was one of the founders of Swaraj Abhiyan and Sambhaavnaa, an institute for Public and polity. In 1998, he fought alongside his father, former Law Minister, Shanti Bhushan for the restoration of judicial accountability and transparency to the higher judiciary. It was Bhushan who rallied for the notice for impeachment motion in parliament against Justice PD Dinakaran, which resulted in his resignation in 2011. Bhushan has over 500 PILs, or Public Interest Litigations to his credit, with the first PIL being the Doom Valley mining case in 1983. PIL, introduced in 1986 by Justice PN Bhagwati, is a medium to secure public interest, and ensure the availability of justice to the lowest social tiers. Prashant Bhushan has a demonstrated history of reaching out to take up such cases for the poor and marginalized, and also was the amicus curiae for the post-Godhra riots case. Even recently, he along with six other bureaucrats filed a writ petition, seeking a commission of inquiry to investigate the “gross mismanagement” of the coronavirus pandemic by the central government. His uncompromising actions like these, however, made him earn both critics and fans.
The recent contempt case was initiated on August 14, 2020, in which the Supreme Court held him guilty of criminal contempt, for his tweets of criticism that as per the court, scandalized the image of CJI Sharat A Bobde, and the institution he represents. It was two of his tweets that the top court considered being responsible for this decision. The first one highlighting CJI S. A. Bobde in Nagpur, astride a limited edition Harley Davidson CVO 2020, belonging to a politician of the ruling party, that too without wearing masks while the court itself was under lockdown due to the pandemic. His second tweet held the court and the last four CJIs responsible for its role in destroying democracy in India during the last six years, ‘without the formal declaration of an Emergency’. After Bhushan refused to apologize, a three-judge bench led by Justice Arun Mishra on August 20 urged him to reconsider his "defiant statement" and granted him time till Monday, August 24, for an "unconditional apology" for the contemptuous tweets. Else, he could face a punishment of up to six months or a fine of Rs 2000 or both, as per the Contempt of Court Act, 1971, which acts as the statutory backing to the idea. But Bhushan again refused to apologize, saying it “would be contempt of his conscience,” and submitted a statement through advocate Kamini Jaiswal that he is standing by his tweets, saying the views expressed through his tweets represent his good faith and beliefs and therefore, an apology for “expressing such beliefs, conditional or unconditional, would be insincere”. The apex court on Tuesday responded to this, saying it is “painful” to read Bhushan’s statements and justifications. During the proceedings, Bhushan’s council has invoked the ‘Mulgaonkar principles,’ urging the court to show restraint, thereby comparing the current case with another contempt case, S. Mulgoankar vs Unknown of 1978, in which Mulgoankar was held not guilty by a 2:1 majority by the same apex court that had previously started the proceeding. Justice P Kailasam and Krishna Iyer formed the majority against then CJI M. H. Beg. Here, Mulgoankar principles refer to Justice Iyer’s caution in approaching and exercising contempt jurisdiction.
More than 3000 members of the civil society, including judges, journalists, lawyers, and bureaucrats have criticized the Supreme Court’s decision to hold Bhushan guilty. It includes former Chief Justice of India Rajendra Mal Lodha, former Supreme Court judges Ruma Pal, B Sudershan Reddy, Madan B Lokur, human rights activist Harsh Mander and historian Romila Thapar. Along with this, 122 students from different backgrounds wrote an “emotional” open letter to Justice Mishra, stating that they were “disheartened witnessing the way our Supreme Court reacted” to Bhushan’s tweets. The case verdict came on August 31, where the top court imposed a fine of Re. 1 on Prashant Bhushan, to be levied from him before September 15. He responded to this, saying that he “gratefully accepts the Supreme Court verdict”. The magnitude of the punishment is but a mere shadow of what was expected. Despite this, more than 1800 members of the Bar Council of India have criticized the apex court’s verdict. Senior Supreme Court lawyer and Bhushan’s advocate for the case, Rajiv Dhavan contributed Bhushan’s fine amount of Re. 1, finally bringing an end to a controversial and sensational battle for judicial secularity. However, this case does remind us that it is time to revisit the Contempt of Court clause, and the Supreme Court verdict, that certainly gives away that Bhushan was right.
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