A recent order of the Supreme Court found senior advocate Prashant Bhushan guilty of contempt for two tweets — one relating to the Chief Justice of India astride an expensive motorcycle and the other a comment that the Supreme Court, in his opinion, played a role in the destruction of democracy in India over the last six years.
For the purpose of the topic at hand we are concerned only with criminal contempt and not those wilfully disobedient litigants who ignore the orders of the courts. Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as the publication of any matter or the doing of any other act which scandalises or lowers the authority of any court; or prejudices or interferes with the due course of any judicial proceeding; or obstructs the administration of justice.
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Does this mean that one can never voice any criticism of the judiciary? No. What the law permits you to say regarding the functioning of Indian courts forms the basis of this particular article, i.e., there is a thin line separating criticism and contempt.
Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2). In C.K. Daphtary v. O.P. Gupta (1971), the Supreme Court held that the existing law of criminal contempt is one such reasonable restriction. That does not mean that one cannot express one’s ire against the judiciary for fear of contempt.
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As long back as in 1968, Lord Denning M.R. set out guidelines in matters of contempt of court. He stated that contempt is not the means to uphold the court’s dignity. He said its jurisdiction is to be exercised sparingly and that protection of freedom of speech is paramount. While welcoming criticism, Lord Denning only requested that it be fair since judges, owing to their status, are not in a position to refute the comments so levelled against them.
What does the Indian judiciary deem permissible and impermissible? The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious. If the comment is made against the judge as an individual, the Court would consider whether the comment seeks to interfere with the judge’s administration or is simply in the nature of libel or defamation. The Court would have to determine whether the statement is fair, bona fide , defamatory or contemptuous. A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function. Criminal contempt does not seek to afford protection to judges from statements which they may be exposed to as individuals. Such statements would only leave the individual liable for defamation. Statements which affect the administration of justice or functioning of courts amount to criminal contempt since public perception of the judiciary plays a vital role in the rule of law. An attack on a judge in his or her official capacity denigrates the judiciary as a whole and the law of criminal contempt would come down upon such a person unless it is a fair critique of a judgment.
Sections 4 and 5 of the Contempt of Courts Act are akin to a defense a person may take in a case of defamation i.e., fair comment. In Re: S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary cannot be immune from fair criticism, and contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts. In this judgment, Chief Justice M.H. Beg opined that at times the judiciary adopts a “magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement.” The same Justice Beg remarked post-retirement that Justice H.R. Khanna’s famous dissent in the ADM Jabalpur case (1976) made no contribution to law but only to his popularity. The Allahabad High Court citing Brahma Prakash Sharma (1953) did not find Justice Beg guilty of contempt.
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Former Law Minister of India, P. Shiv Shankar, referring to landmark judgments of the Supreme Court, said once: “Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except the Supreme Court of India. And the bank magnates... got higher compensation by the intervention of the Supreme Court in Cooper’s case.” He also said: “Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.”
Speaking for the Supreme Court in 1988, Justice Sabyasachi Mukherjee found that these statements did not impair the administration of justice. He only opined that the language could have been milder given the Minister’s own legal background. He also said: “If antisocial elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The Courts are not deterred by such criticisms.”
Truth is also a defence in matters of criminal contempt if it is bona fide and made in public interest, as held by the Supreme Court in Indirect Tax Practitioners’ Association v. R.K. Jain (2010).
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However, all these precedents did not come to the aid of activist Arundhati Roy when the Supreme Court found her guilty of contempt. A petition was filed against Ms. Roy, which was dismissed by the apex court. However, it was Ms. Roy’s reply to the petition which was held to be in contempt. In that, Ms. Roy had admonished the Supreme Court for acting with undue haste in a frivolous petition and attributed it to her strong critique of the apex court’s decision in the Sardar Sarovar Dam case. The Supreme Court held that a statement that the Court willingly issued notice on an unsubstantiated petition affected the reputation and credibility of the Court before the public and therefore found Ms. Roy guilty of contempt.
The above cases would show that whether a comment would constitute criminal contempt or not depends entirely on the facts and circumstances of each case. In conclusion, tweets or remarks by conscientious citizens certainly do not affect the dignity of the Indian judiciary, to quote Lord Denning “that must rest on surer foundations”.
Gautam S.Raman is an advocate practicing at the Madras High Court