Did the tweets by Shri Prashant Bhushan scandalize the Supreme Court OR was fair criticism?
Critical Analysis of the decision of Hon’ble Supreme Court in Suo Motu Contempt Petition (Crl.) No. 1 of 2020 titled,
Prashant Bhushan, In re, 2020 SCC OnLine SC 698
The suo-moto contempt petition was initiated against advocate Mr. Prashant Bhushan (hereinafter referred as ‘contemnor’) based on two tweets. Court opined that the tweets gave the impression that the Hon’ble Supreme Court was the reason of destruction of democracy, and thus, Mr. Bhushan was held guilty of criminal contempt with a fine of Re. 1 failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practicing in this Court for a period of three years.
The Attorney General (hereinafter referred as ‘AG’) asked the contemnor to withdraw the allegations and the court to show magnanimity by warning him and not to impose any sentence on him because he represented various causes in PIL and rendered services to different classes of society, which is a completely bizarre argument.
Other than the power granted by the Constitution of India under Article 129, the judgment also logically states that just the way review/appeal petition against a judgement given by a judge is heard by other set of judges, it is legal for court to punish for its own contempt, because it is the duty of the judge to act impartial and unbiased.
Further, the court dealt with the chilling effect between the freedom of speech and expression (hereinafter referred as ‘freedom’) under Article 19 and fair criticism. Pointing out the thin line difference between the two, court held that freedom comes with restrictions, and the tweets were neither bona fide nor in public interest, as they not only shook the confidence of public in the administration of justice but also damaged the right of dignity of judges under Article 21.
Criticism of judiciary is not protected under freedom; however, fair criticism based on authentic/acceptable material is permissible unless it creates apprehension which amounts to contempt. It would have been possible to decide whether the tweets come under restriction or freedom, only if the court considered the evidence amounting to the opinion of the contemnor. The contemnor submitted that the tweets were his opinion based on certain documents. The question is what if those allegations in the documents are true, then would the tweets be counted in freedom? Is it not the responsibility of the court to safeguard the belief of its citizens by proving those allegations incorrect? Because tweets stated that there are flaws in the system so the way to safeguard the belief was not only by holding contemnor guilty but also proving those allegations incorrect. The allegations can be said to be in public interest if not bona fide because this could have brought corrective/remedial measures. And, thus could be a part of freedom.
Court did not take the allegations into consideration because it would have required the judges to be brought into the court for explanation which would cause undue delay. The judges need not answer every allegation, but they must at least answer the one’s that become the ground of holding someone guilty of contempt.
Further, the cognizance of the conduct was taken so that no wrong message is given to lawyers, then why did the court become magnanimous and imposed a fine of Re. 1 only. If he is guilty, he should have been given with a considerable punishment which would have had deterrence effect on lawyers and litigants.