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CONSTRUCTIVE CRITICISM : AN IMPORTANT INGREDIENT FOR THE DEVELOPMENT OF DEMOCRACY?

Author: Ritu Amarnarayan, V year of B.A.,LL.B.(Hons.) from Christ (Deemed to be University)


Introduction

Contempt of Court is an offence of being disrespectful or disobedient towards a Court of Law and its officers and portraying a behavior that vehemently opposes the authority, justice and dignity of the Court, and the same is given in Section 2(a) of the Contempt of Court Act, 1971. Further, Article 19(1)(a) of the Indian Constitution guarantees Right to Freedom of Speech and Expression to all the citizens and gives them right to express their convictions, but when this criticism has the tendency of lowering the authority of the judge or obstruct the administration of Justice then the Court has the power to punish such an act which demeans the value of the judiciary under the Contempt of Courts Act, 1971.


The most recent Contempt of Court case is the Prashant Bhushan Case1 which was brought about by Mehek Maheshwari, an advocate who filed a petition2 for criminal contempt against the respondent, but as the petition did not have a consent, the court decided to proceed suo moto based on this petition against the Advocate on Record3, Shri Prashant Bhushan for his two demeaning tweets on the working of the Judiciary. The first tweet was posted on June 27th which criticized the functioning of the Supreme Court in the past six years and the second tweet was posted on June 29th wherein Mr. Bhushan directed this tweet to the Chief Justice of India, Sharad Arvind Bobde who was seen sitting on a Harley Davidson motorcycle without wearing a mask or a helmet during the time of the lockdown.


Respondents Contention

The Senior Counsel appearing on behalf of the respondent raised a preliminary objection submitting that since the present proceedings were initiated on the basis of the petition filed by Mr. Maheshwari, the same cannot be treated as a Suo motu contempt petition, unless there was a consent of the learned Attorney General for India, the proceedings could not have been initiated on the basis of complaint of Mr. Maheshwari. Further contentions raised by the Senior Counsel Dave were regarding the nature of the tweets, stating that the two tweets were not against the institution and were against the judges in their personal capacity regarding their conduct and henceforth are not malicious and do not obstruct the administration of justice, and it was also contended thatthe said tweet is capable of giving an impression to a layman, that the Chief Justice of India was enjoying the ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he had kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice. The point which was highlighted by the Senior Counsel for the respondents was to look into the incongruity of the situation wherein the Chief Justice of India on one hand keeps the court virtually in lockdown due to the fear of COVID, with hardly any cases being heard and those heard are also done by an unsatisfactory process through video conferencing and on the other hand is seen in a public place with several people around him without a mask. Stating this the Senior Counsel submits that this was the respondent merely expressing his anguish by highlighting the said incongruity, and for the same reason, this tweet cannot be constituted as a contempt of court, as, if it is regarded so, then it would stifle free speech and would constitute an unreasonable restriction on the right of a citizen under Article l9(1)(a) of the Constitution.


Referring to the other tweet, it was contended that the said tweet had three distinct elements, each of which is his bona fide opinion about the state of affairs in the country in the past six years and the role of the Supreme Court in regards to it and in particular the role of the last 4 Chief Justice of India. It is submitted, that this tweet merely contains the respondent’s considered opinion, about how the democracy has been substantially destroyed in India during the last six years. The second part is his opinion, that the Supreme Court has played a substantial role in allowing the destruction of the democracy and the third part is his opinion regarding the role of the last 4 Chief Justices in particular in allowing it and though its outspoken or disagreeable it cannot be held as contempt of court.


Relying on the judgment of the Constitution Bench of this Court in Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh4, it was contended that what should weigh in the Court is the reflection of the conduct or character of a judge and if it is within the limits of fair and reasonable criticism and whether it is mere libel or defamation of the Judge. It is submitted, that if it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice or the proper administration of the law by such court, it is not proper to proceed by way of contempt.


It was given, that in the present case, it can be said that the allegations in the tweets are only against the present Chief Justice of India and the past three Chief Justice of India and that too, in their individual capacity and that in no way they can be calculated to interfere with the due course of justice or the proper administration of the law by Court and therefore, it is not proper to continue with the present contempt proceedings. Relying on the Constitution Bench judgment of this Court in the case of Baradakanta Mishra vs The Registrar Of Orissa High Court & another5, learned Senior Counsel submits, that when proceedings in contempt are taken for the vilification of the judge then the question which the court has to ask is whether the vilification is of the judge as a judge or it is the vilification of the judge as an individual and if the vilification of the judge is as an individual, then he is left to his private remedies and the Court has no power to punish for contempt.


Petitioners Contention

As far as the observations made in the case of Pallav Sheth v. Custodian6, it could be seen that the source of power of this Court for proceeding for an action of contempt is under Article 129 and it was held that the power of this Court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971. It was also said that the Court is vested with the constitutional powers to deal with the contempt and Section 15 is not the source of the power to issue notice for contempt. It only provides the procedure in which such contempt is to be initiated, so accordingly as far as suo motu petitions are concerned, the Court could very well initiate the Suo moto proceedings on the basis of information received by it. So henceforth it was contended that the Court definitely had the authority to take up this matter as a suo moto petition.


This Case comprised of a three-judge bench headed by Justice Arun Mishra, Justice B.R Gavai and Krishna Murari and further it was contended before the bench that the date on which the Chief Justice of India was alleged to have taken a ride on a motorbike is during the period when the Supreme Court was on a summer vacation. In any case, even during the given period, the vacation Benches of the Court were regularly functioning and the impression that the said tweet intend to give is that the Chief Justice of India as the head of the Indian judiciary has kept the Supreme Court in lockdown mode, thereby denying citizens their fundamental right to access justice. In any case, the statement, that the Supreme Court is in lockdown is factually incorrect even to the knowledge of the respondent and it is a common knowledge that on account of COVID-19 pandemic the physical functioning of the Court was required to be suspended in order to avoid mass gathering in the Supreme Court and to prevent outbreak of the pandemic. However, immediately after suspension of physical hearing, the Court started functioning through video conferencing and in this premise, making such wild allegation thereby giving an impression, that the Chief Justice of India is enjoying riding an expensive bike, while keeping the Supreme Court in lockdown and thereby denying citizens their fundamental right to access justice, is undoubtedly malicious and scandalous and it has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the Chief Justice of India by undermining the dignity and authority of the administration of justice.


Learned Chief Justice stated, that the judiciary cannot be immune from criticism. However, when that criticism is based on obvious distortion or a misstatement and made in a manner which seems to lower the respect for the judiciary and destroy public confidence in it, then it cannot be ignored. He opines, that when the question is of injury to an institution, such as the highest Court of justice in the land, one cannot overlook its effects upon national honor and prestige of the nation. Even in the case of Pritam Pal vs. High Court of Madhya Pradesh7 the Court was considering an appeal filed by an Advocate, who after failing to get a favorable judgment in his own writ petition had moved a contempt petition against the judges of the High Court, who had dismissed his petition, therein casting allegations against their conduct in the discharge of their judicial function which bore reflections on their integrity, honesty and judicial impartiality. The High Court invoking the jurisdiction under Article 215 of the Constitution had initiated Suo motu proceedings against him and had convicted him for having committed criminal contempt. This was one of the cases that was cited by the court which favored their contention of charging the respondent with the Contempt of Court.


Finally, the Court by referring to the precedents referred above and by keeping in mind that the Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar and that the trust, faith and confidence of the citizens of the country in the judicial system is sine qua non for existence of rule of law. The very attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand and the aforesaid tweet has the effect of destabilising the foundation of this important pillar of the Indian democracy as it tends to give an impression, that the Supreme Court, which is a highest constitutional court in the country, has in the past six years played a vital role in destruction of the Indian democracy. There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of judiciary and as the Court is considered with the damage that is sought to have been done to the institution of administration of justice. It is considered by the Court that the said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law. Thus, the Constitutional Bench held, that a publication which attacks on individual judges or the court as a whole with or without reference to particul ar case, casting an unwarranted and defamatory allegations upon the character or ability of the judges, would come within the term of scandalizing the Court, and such a conduct clearly creates distrust and impairs the confidence of the people in the Judiciary and such an act cannot be tolerated. Henceforth why, the Court ruled out the contentions put forth by the Counsel for the Respondent and held that the tweets were based on distorted facts and that it amounted to criminal contempt.


The Three Judge bench rejected the contentions made by the counsel for the respondents and Mr. Bhushan (respondent) was held guilty of criminal contempt and the court gave time to Mr. Bhushan to apologize for the same, but he refused to apologize and henceforth why the Court[i] decided to fine Mr. Bhushan with Re 18. After hearing the verdict of the Apex Court, Mr. Bhushan paid the penalty of Re 1 levied on him and stated that he would definitely respect and abide by the decision of the court and pay the penalty, he is subjected to. But, along with it he also mentions to reserve the right to seek review of the conviction and sentencing by a way of an appropriate legal remedy.


What does this case mean for Freedom of Speech?

Freedom of speech cannot be curtailed but rights of others need to be respected, said the bench, also comprising Justices B R Gavai and Krishna Murari futher rendering the judgement ‘ We, therefore, sentence the contemnor with a fine or Re.1/-(Rupee one) to be deposited with the Registry of this Court by 15.09.2020, 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’9.Prashant Bhushan pronounced that he would be paying the fine of Re1 but under protest. It is said that Mr. Bhushan would be filling a writ petition and review under article 32 and article 145 of the Indian Constitution The freedom of expression guaranteed under the constitution and the independence of the judiciary are the two basic and most important constituents of a democracy. Constructive criticism is the most important ingredient for the development of democracy and the Supreme Court should protect free speech. India’s Supreme Court has jettisoned its long history of protecting free speech by finding Prashant Bhushan guilty of criminal contempt for his social media posts. The judgement is a disproportionate response that would have a chilling effect on people expressing critical views of the judiciary. This judgment does not restore the authority of the court in the eyes of the public, whereas this judgement will only discourage the lawyers of this country to express their views. The reason that judiciary is an independent body should not deprive the citizens their basic fundamental right. The status of an independent judiciary will be undermined if the voices of citizens is silenced under contempt of court.


Conclusion

This case is one of the landmark judgements as mentioned above that emphasizes on Contempt, Right to Freedom of Speech and Expression, and the Independence of the Judiciary, which is the most essential and prudent part of a democratic society. As said by some experts this case draws a fair line between Freedom of Speech and it’s exceptions. But the real question is if the said line has been read disproportionately by having an impact on the Fundamental right and disabling the concept of constructive Criticism.

[i] 1 2020 SCC Online SC 588. 2 How Prashant Bhushan criminal contempt case progressed in Supreme Court, Hindustan Times (Aug. 31, 2020, 09:54 P.M), https://www.hindustantimes.com/india-news/prashant-bhushan-criminal-contempt-case-how-the-case-progressed-in-sc/story-Cn7mKnM3gP8IBa8MxiIcxN.html 3 Rajeev Rambhatla, Free Speech vs Contempt of Court, An Analysis in Light of the Prashant Bhushan Case, Ksk, (Aug. 29, 2020),https://blog.ksandk.com/constitutional/prashant-bhushan-contempt-of-court/ 4 1954 AIR 10 1954 SCC 1169 5 (1974) 1 SCC 374 6 AIR 2001 SC2763 7 Air 1992 Sc 904 8 Raghav Ohri, Prashant Bhushan held guilty of "criminal contempt", fined Re 1 by Supreme Court, The Economic Times,(Aug. 31, 2020, 12:53 P.M), https://economictimes.indiatimes.com/news/politics-and-nation/prashant-bhushan-held-guilty-of-criminal-contempt-fined-re-1-by-supreme-court/articleshow/77846926.cms 9Fr. Cedric Prakash, 1 rupee for a new India, Matters India, (Sep. 1, 2020), https://mattersindia.com/2020/09/1-rupee-for-a-new-india/