How Supreme Court ‘Harmed’ Its Own Image By Convicting Bhushan

Supreme Court’s role & function as protector of fundamental rights must be subject to people’s freedom of speech.

Image of Supreme Court and Prashant Bhushan used for representational purposes.

(Photo: Shruti Mathur/The Quint)

On 31 August, a three-judge bench of the Supreme Court presided over by Justice Arun Mishra concluded the recent contempt proceedings initiated against Prashant Bhushan, sentencing him to pay a fine of 1 rupee. This is one of the last judgments that Justice Arun Mishra is a part of before he retires.

Notably, Justice Mishra’s approach to invoking the power of the Court to punish advocates for contempt has been rather controversial. The conviction and sentencing judgments in Prashant Bhushan’s case come with their share of concerns. Close scrutiny reveals that the judgments are based on weak foundations and crucial gaps in reasoning. The judgment’s greatest weakness is the Court’s omission to consider the responsibilities that accompany its role as a ‘pillar of democracy.’

Judgment On Conviction – Ignoring Bhushan’s Reply

By now, the facts leading up to the contempt case are well known (a detailed factual background and timeline of the case may be accessed here). During the hearing of the conviction on 5 August 2020, Dushyant Dave, appearing for Prashant Bhushan, advanced two main lines of argument:

1. That the tweets were made in good faith and constituted a fair criticism of judicial behaviour in India. For this purpose, Bhushan had filed a 134-page affidavit explaining the context and nature of his statements, citing instances of the Court’s failure to protect fundamental rights and opacity in its functioning; and
2. That even otherwise, the Court ought not to hold Prashant Bhushan guilty of committing criminal contempt, as the contempt power is to be used very sparingly.

On 14 August 2020, the Supreme Court delivered its verdict, holding that both tweets amounted to criminal contempt. Strikingly, while rejecting Dave’s submissions, the Supreme Court almost entirely ignored the detailed affidavit filed in support of Bhushan’s tweets to establish that the tweets amount to fair criticism. This is particularly concerning with respect to the tweet on the role of the Indian judiciary in allowing democracy to be destroyed in India, as most of the pleadings raised in the detailed affidavit were focused on contextualising that statement.

Through this affidavit, Bhushan had sought to demonstrate that there was a clear factual basis for his statement, and that he was certainly not the cause for the widespread belief that the judiciary had failed to perform its constitutional role in checking legislative and executive abuse in the last few years.

However, the Court did not engage with the affidavit at all but found Bhushan guilty of contempt without reasoning how his statement did not amount to fair criticism (as also noted here and here). Moreover, the Court inexplicably found the tweets to be ‘malicious’ and ‘scurrilous’ merely because of the wide scope of publication and because they were made by a lawyer of 30 years of standing. This manner of reasoning risks negating the provision of the defence of fair criticism in contempt cases and allowing convictions for simply raising allegations against the judiciary, truthful or not.

Judgment On Sentence – Same Mistake Again?

Oddly enough, it is in its subsequent judgment on sentencing that the Court confronted this issue more directly. This of course creates further problems, as it is unclear what force of law these findings hold in what is meant to be a judgment on sentencing. Nevertheless, more than 3/4th of the judgment on sentencing discusses the basis upon which Prashant Bhushan’s conviction was secured. This ostensibly occurred because Rajeev Dhavan, appearing for Prashant Bhushan in the hearing on sentence, pointed out that the Court had failed to engage with the detailed reply affidavit in its judgment on conviction. Even here the Court did not consider the contents of Bhushan’s detailed affidavit, and instead, it focused on explaining why it had avoided engaging with it.

However, the two points cited by the Court to justify not engaging with Bhushan’s detailed reply do not inspire confidence.

The first point was that the Attorney General had argued that Bhushan’s statements cannot be evaluated without calling upon the individual Chief Justices. The Court noted that it was impossible to call the judges to determine the truth of these allegations. This approach once again negates one’s defence of fair criticism against the Court. What is worse is that the Court could take suo moto cognisance of a wide range of cases (now covered under its unclear standard), and then it could simply hold that it cannot consider the submissions raised by accused contemnors as that would involve asking for responses by individual judges. Indeed, it is rather strange for the Court to insist on the one hand that certain statements must be held to amount to criminal contempt but on the other hand assert that extensive defence of the statements may not be considered because it is not possible to hear from the judges involved.

The Court’s second justification for not considering the detailed submissions advanced by Prashant Bhushan was that Dushyant Dave, while appearing for Prashant Bhushan in the hearing on merits on 5th August “stated that he would not go to the defence taken as reading of that would further malign the reputation of this Court.” This, with respect, appears to be a mischaracterisation of Dave’s submission. It appears that Dave had only refrained from reading out the affidavit, and he certainly did not suggest the submissions should not be considered while determining whether the statements amounted to criminal contempt.

It would be odd for a lawyer representing an accused contemnor to state that the submissions in defence to prove that his statements amount to fair criticism need not be considered because they “malign the reputation” of the Court.

The Court’s recording of the hearing in this manner and its reliance on this narrative act as an indication of its hesitance to substantively engage with the detailed submissions advanced in Prashant Bhushan’s favour.

The Court’s Monopoly Over Truth

In these proceedings, the Court has acted as if it has the exclusive power to determine when a statement pertaining to the judiciary is true. The Court ought to assess the fairness and truth of criticism by examining the material put forth by multiple parties. However, as emphasised above, the Court has determined the veracity of Prashant Bhushan’s tweets without considering his extensive defence.

This approach of asserting one version of truth against all others, without taking on the burden of engaging with the substance of other perspectives is extremely dangerous for democracy. 

Aside from trying to suffocate all opinions that clearly diverge from the official judicial version of what is true (and it is worth noting that many such opinions exist today – as evident from the annexures to Bhushan’s detailed reply), this judicial approach to exercising the power of criminal contempt would have a considerable chilling effect on free speech in society. Indeed, a recently retired Supreme Court judge has argued that the aim of these contempt proceedings is to chill speech. Overall, the contempt proceedings against Prashant Bhushan signify a strained attempt to restrict the free flow of information and ideas, particularly those taking critical perspectives of existing power structures. Such an attempt is incompatible with India’s constitutional democracy.

Free Speech & Democracy

This entire saga requires us to consider whether the Supreme Court ought to have invoked its power of contempt of court to censure criticism against it. The supposed need for the Court to have contempt powers stems from the objective of ensuring that there is obedience with its orders and that a person’s right and no extraneous pressure impedes a person’s right to a fair trial in a particular proceeding. In English common law, the contempt power was broadened to include interference with “administration of justice” and “scandalising the court” citing the need to ensure general respect for administration of justice in order to achieve the aforementioned purposes.

It would be inappropriate, however, to extend these principles to punish criticism of the Court’s role as an institution responsible for protecting fundamental rights and democracy.

Indeed, these general provisions are better suited to the century that they were evolved in. It is pertinent to note that the UK Law Commission acknowledged that in a democracy, people have the “right to speak freely about the exercise of power, which must include the freedom to criticise the judicial system and the judiciary” and eventually recommended the discontinuance of ‘scandalising the court’ as a form of contempt of court in the United Kingdom.

Why Supreme Court Must Shun ‘Scandalising The Court’

There are even stronger reasons for the Indian Supreme Court to eschew “scandalising the court” as well as interference with administration of justice in the manner that has been applied in this case. The Indian Supreme Court is widely regarded as the most powerful court in the world, which not only interprets law but regularly partakes in governance, issuing directions in a broad range of cases. This is made amply clear by recent examples such as the proceedings relating to the National Register of Citizens in Assam where the Court took over Executive functions, and PILs where the court has passed directions such as the installation of smog towers to combat pollution, banned liquor on highways, obligated playing the national anthem in cinemas.

Thus, the Court’s role and functioning as the protector of fundamental rights and an organ of governance must be subject to people’s freedom of speech which includes the right to criticise and the right to have information of the Court’s functioning.

Rather than building public confidence in the capability of the Indian to administer justice, the contempt proceedings against Prashant Bhushan, with all its procedural irregularities and strained reasoning, ultimately appears to damage the image of the judiciary even more than Bhushan’s tweets. After the Court’s judgments on sentencing, Prashant Bhushan stated in a press conference that he would be filing review petitions against both judgments. Ultimately, the fact that the punishment was only 1 rupee should not detract from the fact that a person has been convicted for criminal contempt for expressing the substantiated view that the Supreme Court has failed in recent years to act as per its role under the Indian Constitution.

(The authors are Delhi-based lawyers. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)