The Prashant Bhushan case: Right to Speech or Contempt of Court?

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“I do not feel the pain of being punished but the fact that leaves me in great anguish is that I have been misunderstood.”-said Prashant Bhushan, the renowned lawyer, who had a big role in bringing the 2G and 3G scam in the public domain, after he was held guilty under the contempt of Court.

The Supreme Court of India booked Prashant Bhushan under the Contempt of Court via suo motu on 14th August 2020. The Bench led by Justice Arun Mishra cited 2 of Bhushan’s tweets which were found to be not only disrespectful towards the court and its judges but were also viewed as a form of expression that could lead to the loss of trust and hope on the judiciary by a common man. The Court was supposed to announce the penalty on 20th August 2020 but instead gave Bhushan a period of 2 days to re-think and contemplate his statements.

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Prashant Bhushan’s controversial tweet

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The law of contempt is justified on the grounds that courts being authorities that have to be respected, should be able to punish people who do things to lower their authority, for the power of courts only works on respect. They do not have executive machinery to enforce their orders. The executive branch enforces the orders and they do so out of respect to the court and it is this respect that we call constitutionalism, where authorities of the state bow to the law. The courts being the keepers and speakers of the law, must be respected if constitutionalism has to survive. So exists the law of contempt, to protect the Court and to preserve its dignity.

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What was quite astonishing was that when the Court asked Bhushan to re-think and offer an apology, he clearly rejected it saying that what would he do by borrowing sometime when he still stands on what he tweeted. Bhushan made a statement quoting MK Gandhi and said that he would accept any punishment willingly as he stood by his statement.

One of his tweets was about the role of the last four Chief Justices of India and the other about the current CJI riding an expensive motorcycle while the court was in “lockdown”. The court held that these tweets tend to give an impression that the highest constitutional court of the country has in the last six years played a vital role in the destruction of Indian democracy. “There is no matter of doubt, that the tweet tends to shake the public confidence in the institution of judiciary… the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law,” the Bench said.

It rejected the argument that the tweet was only a matter of opinion, although several experts including former Supreme Court judges have said or written similar things. Criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 means any publication which (i) scandalises or tends to scandalise or lowers or tends to lower the authority of any court; or (ii) prejudices or interferes or tends to interfere with, the due course of any judicial proceedings or (iii) interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.

This matter once again gives a significant amount of attention to the debate of the Right to Speech and Expression. The judiciary is not omnipotent and can certainly be put under scrutiny. Becoming the Chief Justice nowhere guarantees a free pass ticket from criticism. The Supreme Court even referred to a line which it categorically stated as the ‘Laxman Rekha’ which it definitely believed was crossed by Bhushan.

But what is this Laxman Rekha, has the SC ever defined it? Can it be defined? The Attorney General of India KK Venugopal even argued that in the past many retired SC judges themselves have raised questions over the role of the judiciary and how this is actually jeopardising the very democracy of India but he was interjected shortly by Justice Mishra.

In a stubborn, blunt, and yet unambiguous reply, Prashant Bhushan said, “I did not tweet in a fit of absent-mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bona fide belief. I do not ask for mercy. I do not appeal to magnanimity. I am here to cheerfully submit my penalty.”

These words are crucial and exemplary as Bhushan still stands on his words, He is not apologetic but is willing to accept the punishment. What has been ironic in this particular judgement is that Arun Mishra is retiring on 2nd September 2020 and he has booked someone under the Contempt of Court for the very first time.

Prashant Bhushan is likely to receive a sentence of 6 months or pay a fine of 2000 rupees or both. However, the question still remains- Do 140 characters determine what is hazardous to Indian democracy? Do they decide the fate of a Republic? Even if they do, isn’t this an opinion? Isn’t effective criticism the thing that is essential for a healthy democracy? Is the judiciary so ‘godly’ that it snatches away the right to ask questions from the same citizens whose rights have to be guarded by it?

Mahatma Gandhi once said, “Above the Court of law, there is Court of Conscience.” Evidently, every individual including the judges needs to seek in it for a while.

image credits: Counterview

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