Criminal contempt has been recognized as the action of publishing any matter including by words, spoken or written, or by signs, or by visible representations, or otherwise, or any other act which (i) scandalises or tends to or lowers or tends to, the authority of any court; (ii) prejudices or interferes with due course of judicial proceedings; or (iii) interferes or obstructs the administration of justice in any other manner1. Criminal contempt is considered to create distrust in the popular mind and impair the confidence of the people in the courts, hence, the law has been put in place to protect the legitimacy and authority of the court.
It has been reiterated, time and again that criticisms against the judiciary are permitted only when made in "good faith" and in the interest of the public2. Further, if a publication which attacks individual judges or the court as a whole with or without reference to a particular case, casting unwarranted and defamatory aspersions upon the character or ability of the judges, has been recognized as scandalizing the Court3.
In a new tussle between freedom of speech, contempt and the Supreme Court's legitimacy, Mr Prashant Bhushan has been recently found guild guilty of contempt as a result of his tweets. A petition was filed by Mr. Mahek Maheshwari praying for the initiation of contempt proceedings against Mr. Prashant Bhushan, for wilfully and deliberately using hateful and scandalous speech by means of Twitter, against the Supreme Court and the judicial system. However, the matter could not be listed at the time, as consent of the Attorney General had not been obtained. When placed before the Bench on July 22, 2020, the Court was of the view that the tweets had brought the administration of justice in disrepute and were capable of undermining the dignity and authority of the Supreme Court as well as the office of the Chief Justice of India. The Court therefore took suo motu cognizance of the matter. Twitter, being the platform that harboured the statements was also under scrutiny as alleged contemnor No. 2.
Two of Mr. Bhushan's statements on Twitter were under scrutiny, the first being a comment on a photograph of the Chief Justice of India that had surfaced wherein he was riding a bike without a mask. The tweet expressed concerns over this photograph on account of the Supreme Court being under lockdown, and as a result allegedly denying citizens their fundamental right to access justice. In his second tweet Mr. Bhushan opined that the Supreme Court and in particular the last four CJIs had a role in destroying the democracy in India in the last six years.
Examining the Tweets
While deliberating upon the first tweet by Mr. Bhushan, the Court rejected the contention that the tweet was a simple expression of anguish of the non-functioning of the courts physically by the author. The bench was of the opinion that the statement intended to suggest that the actions of the Chief Justice of India kept the Court closed to the public during lockdown when in fact during the said period, the vacation benches of the Court were regularly functioning through video conferencing rendering the statement not only factually incorrect but scandalous and malicious. It was further held that such statements would shake public confidence in the judicial system and in the Chief Justice of the country.
The Court further held that the second tweet gave the impression that the Supreme Court, which is the highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy. This tweet was also recognized as equally obstructive and misleading. Referring to various precedents, the bench explained how trust, faith and confidence of the citizens in the judicial system is sine qua non to the existence of the rule of law, upon which the Indian constitutional democracy stands. Such public statements amount to not mere criticism of a particular judge but the Supreme Court as an institution and that clearly "tends to shake public confidence in the institution of the judiciary".
The Court when deliberating upon the source of the statement, accepted Twitter's contention that it was merely an intermediary under Section 79 of the Information Technology Act, 2000 and therefore is provided with a safe harbour in respect of any objectional post on its platform posted by its users as does not have any control on what the users post on the platform. Further, despite the said protection, it had also shown bona fide by suspending both the tweets.
While acknowledging the need to remain open to criticism and magnanimous when dealing with issues regarding free speech, the Court remained firm in concluding that such magnanimity must not extend towards those attacking the foundation of the judicial system in a malicious manner. While the Supreme Court decided to discharge Twitter, Mr. Bhushan was held in contempt. The Court was not convinced that the tweets were a fair criticism, made bona fide in the public interest and therefore held that the tweets, which are based on distorted facts, amounted to 'criminal contempt'.
When the matter came up for hearing on sentencing before the Supreme Court on August 20, 2020, Mr. Bhushan disclosed that the intended to file a review petition within the statutory limit of thirty days. Mr. Bhushan also stated "I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose"4. The Court then sought the Attorney General's views on the statement made by Mr. Bhushan, and whether he should be given more time. In response, the Attorney General said that it would be "tremendously good" if Mr. Bhushan was given some time by the Court. As a result, the Supreme Court reserved its order on sentencing and granted Mr. Bhushan time till August 24, 2020 to tender an unconditional apology.
On August 24, 2020, Mr. Bhushan filed an additional statement before the Supreme Court wherein he stated that his tweets represented the bona fide belief he continues to hold and an apology for expression of those beliefs would be insincere5. After hearing the matter on sentencing on August 25, 2020, it now remains to be seen what sentence the Supreme Court imposes on Mr. Bhushan.
Contempt and Defamation
An interesting question that could arise as a result of this case is whether it is possible to initiate proceedings under criminal defamation and criminal contempt for the same statement. Under Indian law the offence of defamation applies to any individual who may, by words either spoken or intended to be read, or by signs or by visible, representations makes or publishes any imputation concerning any other person intending to harm, or knowing or having reasons to believe that such imputation will harm the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person6. The difference between defamation and criminal contempt is that one is a wrong done to the judge personally while the other is a wrong done to the public7. Therefore, it is possible to initiate proceedings for both where the facts of case allow, and when the effects of the act committed overlap in that regard.
Remains Of A Colonial Past
The law on contempt is considered to be a reminiscent of British colonialism in India and has seen growing calls for "scandalizing the court" to be removed from the ambit of contempt. Instead it is argued that contempt should only be limited to wilful disobedience of directions or judgments of the court. These arguments draw strength from the fact that contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished. Further, in England, the law of contempt has practically been abolished with the last successful prosecution having taken place in 1931.
In fact, Lord Denning had observed in the matter of R. Vs. Commissioner of Police that even though the Court has the jurisdiction for contempt, they shall never use it. The reasoning alluded was that the judges, in contempt cases, do have a certain amount of personal interest, which is against the legal principle that one cannot be a judge in their own case. Lord Denning had further stated that "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... All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication"8.
On November 12, 2009 England also became the first among the Western European participating States in the Organization for Security and Co-operation in Europe to officially decriminalize defamation, sedition and seditious libel, defamatory libel and obscene libel. This led to growing calls to decriminalize defamation in India due to the alleged growing number of frivolous cases. However, when the constitutionality of defamation was challenged before the Supreme Court of India as recent as May 2016, it was held that right to reputation is an inextricable part of the constitutional right to life and criminal defamation is a means through which the State sustains and protects the reputation of an individual. In order for India to follow in the steps of other jurisdictions, the legislature must act to bring India at parity with other jurisdictions with respect to these archaic laws.
1 Section 2(c), Contempt of Court Act, 1971.
2 Re. Aurndhati Roy, (2002) 3 SCC 343.
3 AIR 1954 SC 10.
6 Section 499 of the Indian Penal Code, 1860.
7 Brahma Prakash Sharma and Ors. Vs. The State of Uttar Pradesh, MANU/SC/0020/1953.
8 (1968) 2 QB 150.
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