Law

In Contempt Proceedings Against Prashant Bhushan, SC Faces a Hurdle – Maintainability

A constitution bench should first decide whether the activist-lawyer has the right to express his bona fide opinion. And then, whether he is required to prove its veracity.

New Delhi: On Wednesday, the Supreme Court bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari issued a notice for contempt of court to activist and lawyer Prashant Bhushan for two tweets he recently posted.  

In a June 27 tweet, Bhushan had speculated on what future historians might say about the Supreme Court’s role – especially during the terms of last four Chief Justices of India – in the destruction of democracy in contemporary India, where he said an undeclared Emergency has been in force. 

His second tweet, on June 29, Bhushan posted a photograph of CJI S.A. Bobde sitting on a Harley Davidson motorcycle in Nagpur along with the following text:

“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!”

Stating that it was “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 court issued notices to Twitter Inc, which was allowed to file an application in the case.

Earlier, Twitter Inc’s senior counsel, Sajan Poovayya, promised the bench that it would disable Prashant Bhushan’s controversial tweet, if ordered by the court. 

Also read: Why Wait for Formal Order, Can’t You Take Bhushan Tweets Down on Your Own, SC Asks Twitter

Poovayya also told the bench that he did not defend the tweet.

The bench noted with concern that the June 27 tweet has been published subsequently by one newspaper (and by implication,  most media outlets) and therefore, wondered what the disabling of the original tweet by Twitter Inc. could achieve. 

The bench then issued notice to attorney general for India, K.K. Venugopal, to seek his opinion on the issue. 

Also read: Eight Highlights of Petition Seeking Contempt Action Against Prashant Bhushan, Twitter

The registration of the suo motu contempt case against Prashant Bhushan stems from a petition filed by Mahek Maheshwari, an advocate based at Guna in Madhya Pradesh, seeking contempt action against both him and Twitter India.   

Maheshwari had termed Prashant Bhushan’s other tweet, posted on June 29, as “inhuman” especially when, according to Maheshwari, the CJI and the other judges had been sacrificing their vacations and using video conferencing to satisfy the litigants, according to Bar and Bench.  

Screenshot of Prashant Bhushan’s tweet of June 29, 2020.

Maheshwari’s petition appears to have been placed before the bench on the administrative side, following which the bench has registered a suo motu case, In Re Prashant Bhushan and Anr. (SMC (Crl) No.1/2020).  

The non-listing of Maheshwari’s petition, along with the court’s suo motu petition against Prashant Bhushan shows that the former may have suffered from the vice of non-maintainability. The initiation of the suo motu petition by the bench could have been aimed at overcoming this procedural hurdle. 

The present suo motu contempt petition against Prashant Bhushan brings to the fore a similar petition filed in 2009, following an interview he gave to Shoma Chaudhury of the now discontinued Tehelka magazine, where he alleged corruption in the higher judiciary. Bhushan had accused half of the last 16 CJIs of corruption in the interview.   

Prashant Bhushan was also accused of making a serious imputation against the then Chief Justice of India, the late S.H. Kapadia. According to Bhushan, Chief Justice Kapadia heard a case concerning Sterlite, in which he had certain shares which made him vulnerable to the allegation of conflict of interest. 

Also read: SC Issues Notice to Lawyer Prashant Bhushan on Contempt Plea by AG and Centre

Justice Kapadia’s defence was that he had disclosed the fact that he held shares in the company during the hearing of the case, and the counsel, in response, had categorically stated that they had no objection whatsoever to the matter being heard by him.  

Subsequently, Bhushan, through his counsel, the late Ram Jethmalani, told the court that he had the highest regard for Chief Justice Kapadia, and no disrespect was meant to him in regard to certain statements attributed to him in the interview.

Although that case was registered as Contempt Petition (Criminal) No.10 of 2009, its maintainability became an issue during the proceedings. Jethmalani argued that the contempt proceeding was not maintainable on account of Section 15 of the Contempt of Courts Act, 1971, as well as the 1975 Supreme Court Rules regarding proceedings for contempt.   

Rule 3 of the latter enables the court to take action in a case of contempt other than contempt committed in the face of the court, as follows: 

(a) Suo motu, or
(b) On a petition made by attorney general for India, or solicitor general, or
(c) On a petition made by any person, and in the case of a criminal contempt, with the consent in writing of the attorney general or the solicitor general. 

Jethmalani pointed out that since Prashant Bhushan’s interview to Tehelka was brought to the court’s knowledge by the amicus curiae in the case, senior advocate Harish Salve, under Rule 3(c) on a petition made by him, the same ought to have been entertained only with the consent in writing of the attorney general or the solicitor general. As neither had given their consent, Jethmalani argued that the contempt proceedings were without jurisdiction of the court. 

Jethmalani also referred to the decision of the Supreme Court in Bal Thackeray v. Harish Pimpalkhute and others (2005).  In this case, in the absence of the consent of the advocate general in respect of a contempt petition filed by a private party under Section 15 of the Contempt of Courts Act, without a prayer for taking suo motu action of contempt, it was held to be not maintainable. 

Also read: The Supreme Court of India is a Court of Rights, Not of Contempt

Jethmalani urged that the power vested in the high courts and the Supreme Court under the Contempt of Courts Act, 1971, was a regulatory measure imposing a fetter on a citizen’s fundamental right to freedom of speech and would have to be invoked and exercised with utmost caution so as not to infringe upon such a fundamental right.  

“Any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt,” he had submitted.

Senior advocate Shanti Bhushan who had also appeared on behalf of son Prashant in that case, had submitted that Salve’s application for initiating contempt proceedings could have been placed only before the Chief Justice of India in chambers on the administrative side and not on the judicial side, in accordance with the decision in P.N. Duda v. P. Shiv Shankar and others (1988).

Refusing to accept these contentions on July 14, 2010, the Supreme Court bench of Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu, had pointed to Salve’s allegation that Prashant Bhushan ‘s interview deliberately aimed at tarnishing the image of the judiciary as a whole, and, in particular, a sitting judge of the Supreme Court, in the eyes of the general public without any foundation or basis therefore.   

The bench had alleged that by publishing the interview, the then editor of the Tehelka magazine Tarun Tejpal was also responsible for lowering the dignity of the Supreme Court in the eyes of all stake holders in the justice delivery system. 

“Prima facie, a case for issuance of notice having been made out, the Hon’ble Chief Justice of India directed issuance of notice to the respondents to show cause in regard to the allegations contained in the application filed by the learned Amicus Curiae.  The error committed by the Registry of the Supreme Court in placing the matter on the judicial side instead of placing the same before the Hon’ble CJI on the administrative side, is an administrative lapse which does not reduce the gravity of the allegations,” the bench noted in its order. 

More important, the Supreme Court asserted its power to take suo motu cognisance, if the petitioners prayed for it, even without the consent of the attorney general, but said that such a recourse should be confined to rare occasions only. The bench held that the case against Prashant Bhushan was one such rare case. 

“The issues involved in these proceedings have far greater ramifications and impact on the administration of justice and the justice delivery system and the credibility of the Supreme Court in the eyes of the general public than what was under consideration in either Duda’s case or Bal Thackeray’s case,” the bench held.  

The bench made it clear that the contempt  proceedings against Prashant Bhushan are covered by clause (a) of rule 3 of the 1975 Rules, dealing with the suo motu jurisdiction of the court. 

Also read: The Supreme Court Is in the Thrall of the Government

Merely because Salve, as amicus, had brought information regarding the allegedly contemptuous statements of Prashant Bhushan published in Tehelka to the knowledge of the court, the proceeding cannot lose its nature or character as a suo motu proceeding, the bench ruled. 

The petition filed by Salve constituted nothing more than a mode of laying the relevant information before the court for such action as the court may deem fit, the bench reasoned.  

The 2009 suo motu case, however, did not progress further, despite the court’s expression of grave concern over Bhushan’s interview. 

In 2011, Prashant Bhushan asked for a reference to the constitution bench on whether expressions of bona fide opinion on the extent of corruption in judiciary would constitute contempt. 

Bhushan also sought to know whether a person who expresses such opinion about the extent of corruption in a section of the judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he held that bona fide opinion.  

Meanwhile, Shanti and Prashant Bhushan both submitted to the bench in a sealed cover the names of eight CJIs, who according to them, were corrupt.

The last hearing in this case took place on May 2, 2012, when it was adjourned to July 25, 2012 with a request to the CJI to reconstitute the bench for the next hearing. Justices Altamas Kabir, H.L. Dattu and J. Chelameswar were on the bench, when it was heard last.   

Records show that the case was not listed after that, even though the date of the next listing of the case is now shown as July 24 before the bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari – the same bench which has initiated contempt action against Bhushan for his tweets.

If the 2009 case could not be heard after 2012 because of the plea for reference to a constitution bench seeking consideration of two relevant issues raised by Bhushan, then the present case can also be said to revolve around the same issues.  

It may be asked whether Bhushan could indeed not have expressed his bona fide opinion about the role of the Supreme Court in these times, and whether mere expression should constitute contempt of court.  

It also may be asked whether, in expressing his opinion on the manner, he is also required to prove that his opinion is correct. Is it not enough to show that he held that bona fide opinion?

The plea for hearing of these two issues by a constitution bench ultimately makes sense because it involves a substantial question of law as to the interpretation of the constitutional guarantee of freedom of speech and expression, as envisaged under Article 145(3) of the constitution. Thus, this is a question that the constitutional bench can decide, and not the current three-judge bench.