Prashant Bhushan should not be convicted and sentenced for Contempt of Court for following ten reasons on facts and the law.
- Tweet of Bhushan on June 27: "When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs."
Allegation is that democracy was destroyed by government, not against Judiciary. The comment is that the role of SC in this destruction will be marked by History and more particularly the role of last 4 CJIs. There is no direct accusation, but indirectly he commented that it has a role in the destruction, without any details and specific allegation against any CJI. There was no allegation of corruption. It's at the most an adverse and critical comment. He did not write history will mark vital role of SC, the court should not have read 'vital' into tweet and concluded as contempt. This is unfair because not truthful. Truth of it should have been ascertained to say whether it was fair or not. Out of judgements given during six years, even if there are four or five judgements that went against democratic institutions, the comment cannot be termed as unfair.
- Second tweet on June 29, while sharing an image of CJI Bobde sitting on a Harley Davidson superbike, commenting that the CJI was sitting on a bike belonging to a BJP leader without a mask or helmet, at a time when the Supreme Court was "denying citizens their fundamental right to access Justice" because it was in lockdown mode".
It is true that he was sitting on superbike, without mask and helmet. As he was not driving it he need not wear helmet. He did not say CJI was driving. He just said 'sitting' on bike. He regretted for having not noticed that bike was on stand. He correlated this sitting with activity of SC 'denying citizens their fundamental right to access to justice because it was in lock down. There is no allegation as it was rightly said that there was no access to justice because of lockdown mode. Though some feel that this could have been avoided, the least, it could be unreasonable comment but cannot be criminalised as defamation or spreading hate and contempt. SC in its judgment rightly stated that it heard 879 sittings and 12748 petitions and judged many cases during the lockdown period through virtual hearing. Bhushan's tweet is still true to the extent that several thousands of cases of fundamental rights, because of lock down. There was neither defamation nor degradation of judiciary. The view of SC that these tweets brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution of Supreme Court, is not within the four walls of 'definition of defamation'.
Prashanth Bhushan cannot be convicted or punished for the following legal reasons:
- Duty to develop spirit of inquiry and reform: The citizens' spirit of inquiry should be protected by the Constitutional Institutions, especially by the judiciary, because the Constitution of India Article 51A(h) mandates that "every person has a duty to develop the scientific temper, humanism and the spirit of inquiry and reform". If every critical analysis is threatened with prosecutions and penal sentences, how do citizens perform this duty?
- Freedom of Expression: The Supreme Court has helped the freedom of speech to survive in this country against suppressive actions of both Legislature and Executive, and similarly the freedom of speech of those criticise the judiciary also needs to be encouraged. The fundamental right as envisaged in Article 19(1)(a) gives every citizen a right to freedom of speech and expression subject to reasonable restriction by law, (not by executive or courts) on the grounds listed in 19(2) which includes contempt of court. But the fair criticism of judicial act is not contempt as per Section 5.
- Fair Criticism is not contempt: The Contempt of Court Act 1971 Section 5 says: Fair criticism of judicial act not contempt. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided. This Section read with Article 19(1)(a) of constitution of India, deserves preference. If there is any doubt, one can read preamble of the Constitution that highlighted the vow of people to constitute India to secure 'liberty' of expression for them.
- Comment on merits of case: Section 499 of IPC which defined crime of defamation, says in fifth exception: Merits of case decided in Court or conduct of witnesses and others concerned.—It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court of Justice, or respecting the conduct of any person as a party, witness or agent, in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. If any critique makes an adverse comment on merits of a judgment, it is not considered as even criminal defamation. It is highly arbitrary to consider a comment which is not a criminal defamation, as 'contemptuous' also.
- Interference: There is another fair rule in Section 13 of Contempt of Court Act which says even if some comment is assumed to be contempt, unless it substantially interferes or tends to substantially interfere, sentence cannot be imposed. Not mere assumed interference and simple interference, but substantial interference is needed to impose penalty. Section 13 (a) says: no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice. This section is highly unreasonable because of ambiguity of 'substantially', 'interference' and 'tends' to, all are wide open, which delegate excessive authority to 'court' without any guidance. Though restrictions can be imposed on freedom of speech under Article 19(2) by law on the ground of 'contempt of court', the restriction with ambiguous and unguided power is 'unreasonable' and hence unconstitutional.
- Truth of statement: The Contempt of Court Act is amended in 2006 to introduced Section 13(b) which says: (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. the justification by truth as a valid defence. If the judges feel that their esteem is suffered by circulation of truth by any media, it is not punishable as contempt. Public interest is a major factor that protects the truth exposed through freedom of speech, even if it embarrasses the judges.
- Apology: Section 12 says that a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both: Provided that the accused may be discharged, or the punishment awarded may be remitted on apology being made to the satisfaction of the Court. Explanation.—An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide. Prashant Bhushan's regret deserves consideration. This clause gives unreasonable and enormous power to the court to decide according to his 'satisfaction', that accorded unguided discretion which might lead to arbitrary conclusions. The language used in this clause has to be considered, 'may be punished', 'may be discharged', 'may be remitted on apology', as far as sentencing is concerned. When it came to apology, clause says 'apology shall not be rejected', if accused makes it bona fide'. These are checks and balances on power of Court to punish. This power cannot be arbitrarily exercised. It is against Indian Constitutionalism, the liberty of expression and though is a restriction on absolute powers of state actors like executive and judiciary.
- In the judgement of P N Duda v P Shiva Shankar 1987, which considered the comment of Shiv Shankar that SC was biased in favour of rich and against poor and held as not contemptuous. This remained law of the land declared by the SC. Prashant Bhushan made any comments as he believed that they could not be contemptuous as per Shiva Shankar case. This means there is no definition of crime of contempt of court that could cover comment of Prashant Bhushan as per existing law, hence he is protected under Article 20(1) of Constitution a fundamental right that protects a person from ex-post-fact-law.
(The author is a former Central Information Commissioner and is presently serving as a Dean, School of Law, Bennett University. Views are personal)