Prashant Bhushan’s Tweets Don’t Warrant Criminal Contempt Action, Top Lawyers Say

It is tragic that some judges invoke the court's “dignity and authority” while acting in a way that undermines it, said Navroze Seervai. The shoulders of a court should be broad enough to withstand criticism, said Raju Ramachandran. The two tweets don't seem to have transgressed into contempt, said Sanjay Hegde. It would appear to be a case of shooting the messenger, said Aspi Chinoy. The four senior advocates spoke to BloombergQuint on a new contempt of court case that the Supreme Court has taken up suo moto or of its own accord.

First, a quick word on contempt—contempt of court can be of two kinds. Civil, that is the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court. Criminal, that is written or spoken words or any act that scandalises the court or lowers its authority or prejudices or interferes with the due course of a judicial proceeding or interferes/obstructs the administration of justice.

Noted lawyer and judicial activist Prashant Bhushan stands accused of the second type of contempt. Criminal contempt. Because of two comments on social media platform Twitter. One posted last month tagging an image of the Chief Justice of India Sharad Arvind Bobde sitting astride a Harley Davidson bike. In his tweet, Bhushan noted the judge was sans safety gear such as mask or helmet, the bike, expensive, belonged to a politician and that at the time the Supreme Court was barely functioning.

CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice! pic.twitter.com/PwKOS22iMz

June 29, 2020

“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!” - Full text of the tweet

Some days later, a poorly drafted petition was filed with the Supreme Court. The petitioner said the remarks in the tweets were “too inhuman” and hence contemptuous of court. The court, however, suo motu took cognisance and listed the matter for July 22.

During the hearing, the bench highlighted another June 27 tweet of Bhushan published in the Times of India on the day the hearing. In that, Bhushan had shared his personal view on the state of the judiciary.

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

June 27, 2020

“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.'' - Full text of the tweet

Now the judiciary is offended. And it will examine if its prestige has been lowered by the tweets.

‘'We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large," the bench said.

The Supreme Court has issued notice to Bhushan, Twitter and the Attorney General of India who has been asked to assist in the case. The court will next take up the case for hearing on Aug. 5.

That kicked off a debate if the top court's action was warranted. BloombergQuint reached out to senior lawyers for their view. Here's what they said.

'Contempt Jurisdiction Is Not ... A Remedy For Thin Skin'

Navroz Seervai, Senior Advocate, Bombay High Court

The suo motu contempt proceedings initiated by a bench of the Supreme Court against Mr. Bhushan constitutes an abuse of the court's contempt jurisdiction, which—for good reason—is to be exercised sparingly and with circumspection. It is no more than an attempt to silence legitimate comment, and criticism as to the functioning of the court and it's judges, both inside and outside the judicial sphere, through the unjustified threat of contempt . It is tragic that some judges invoke the court's “dignity and authority”, whilst acting in a way that undermines it. Contempt jurisdiction is not, has never been, and ought never to be, a remedy for thin skin.

Mr. Bhushan's tweets are an exercise of his fundamental right under Article 19 (1) (a) to freely express himself by way of comment and criticism on the conduct of the CJI as a private citizen, and on the well known fact of corruption in the higher judiciary—a fact adverted to, by (amongst others) [former] Chief Justice SP Bharucha.

Prima facie, in my opinion, there is nothing in Mr. Bhushan's tweets that qualify as contempt of Court. Historically, dictators silenced their critics; the spectacle of a Bench of the highest Court, entrusted by our Constitution to uphold the freedom of speech, doing just that, is deeply disquieting.

'Court's Shoulder Should Be Broad Enough To Face Criticism'

Raju Ramachandran, Senior Advocate, Supreme Court

The shoulders of a court should be broad enough to withstand criticism, even what it thinks is unfair or distasteful criticism, keeping freedom of speech uppermost in mind. This is how courts have cautioned themselves. And rightly so, because ultimately in contempt action, the judiciary as an institution becomes a judge in its own cause. Two tweets ought not to have made the court depart from its own norm.

'Tweets Are Bhushan's Perception, Don't Qualify As Contempt'

Sanjay Hegde, Senior Advocate, Supreme Court

The two tweets in question appear to be in the realm of perception and comment and don't seem to have transgressed into contempt. The general principle on contempt is that one can criticise a judgment but you can't attribute motives to the judge.

Lord Atkin has summarised the normal standard related to contempt and criticism of court when he said that justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful … comments of ordinary men.

In the tweet on four chief justices, it is a comment on the general functioning of the court. Is he [Bhushan] not entitled to perception? More so considering that one of the Chief Justices himself went out in a press conference against his predecessor. It is a matter of perception of the court's function. And on the other tweet, if there is a photograph and none of the facts are false then he can share his perception.

'It Would Appear To Be A Case Of Shooting The Messenger'

Aspi Chinoy, Senior Advocate, Bombay High Court

Mr Prashant Bhushan has over the years taken up numerous public causes/Public Interest Litigations dealing with important issues regarding the functioning of our institutions and the protection of the constitutional rights and liberties of citizens. Mr Bhushan's first tweet expresses his concern at the continuing lockdown of the Supreme Court for more than four months - video hearings clearly being an inadequate/poor substitute for real court hearings. Peculiarly while the Supreme Court and High Courts are refusing to conduct in-court hearings, the Bombay High Court and most others have directed the subordinate courts to resume in-court hearings.

Mr Bhushan's second tweet clearly expresses his anguish, that the Supreme Court has over the past six years , failed to adequately and expeditiously respond to and decide matters/issues that have sought to undermine and hollow out our constitutional institutions and the essence and substance of our constitutional democracy.

Mr Bhushan's comments would appear to be justified by the consistent failure of the Supreme Court over the last 5 to 6 years to expeditiously decide petitions which have challenged issues such as demonetisation, electoral bonds, the deletion of Art 370 , the Citizenship Amendment Act , diverse Habeas Corpus petitions as well as its virtual abdication of its constitutional duty in matters such as the ban on internet/4G in J&K. It is extremely regrettable that the Supreme Court should have responded to Mr Bhushan's tweets [which in substance raise matters of grave public importance and concern] by initiating proceedings against him for contempt of court. It would appear to be a case of shooting the messenger.

The Supreme Court's contempt response to Mr Bhushan, in fact appears to support the lament expressed by him in his second tweet . Judicial introspection and corrective action might have been a more appropriate response.

An earlier version of this story was updated on Friday to include the comment of Aspi Chinoy.

On Friday Twitter took down the two tweets by Prashant Bhushan in India even though there has been no judicial order passed yet by the Supreme Court.

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