Can Prashant Bhushan be accused of Contempt of Court?

Dushyant Dave

Contempt of Court is not perceived contempt of an individual, howsoever high he may be. The Contempt Petition filed by the Attorney General of India, Shri KK Venugopal against Shri Prashant Bhushan, is devoid of any substance.

It is essentially based on the allegations that statements made by Shri Prashant Bhushan on a social media platform, Twitter, ‘scandalised or tend to scandalise and lower or tend to lower the authority of the Supreme Court’.

The other allegation is that the same ‘prejudice/interfere with the due course of a judicial proceedings currently pending’ before the Supreme Court, thereby ‘interfering with and obstructing the administration of justice, and that at the same time denigrating the Attorney General of India, an Officer of the Court, and interfering with the discharge of his duties.’

It is the latter charge which seems to have prompted the contempt petition. Denigrating the Attorney General of India, as alleged, can never amount to contempt of court. At best, it may amount to defamation.

Following statements made by Shri Prashant Bhushan do not constitute ‘criminal contempt’ of the Supreme Court as per well–settled law. 

“Today in CBI Dir appt case, the govt made a startling new claim that Nageswara Rao was selected as the interim director in the HPC meeting on 11th January when they decided to transfer out Alok Verma! This seems to be at variance from LOP Kharge’s version…

I have just confirmed personally from the Leader of Opposition Mr Kharge that no discussion or decision in HPC meet was taken re appt of Nageswara Rao as interim Director CBI. The govt appears to have misled the court and perhaps submitted fabricated minutes of the HPC meeting!”

It is a matter of record that the Minutes of the Meeting of the High Powered Committee held on 09.01.2019 and 10.01.2019 were indeed shown by the Ld. Attorney General to the Court, but were not shown to Shri Prashant Bhushan during the course of the hearing. Be that as it may, Shri Prashant Bhushan had made the statement based on what was informed to him by none other than Shri Mallikarjun Kharge, Leader of the Opposition, also a high dignitary and a responsible person.

In his letter to the Prime Minister dated 14.01.2019 Shri. Mallikarjun Kharge had categorically stated,

“The Government seemed to have made up its mind on appointing an Interim Director and hence this was never placed before the Selection Committee in the 10th January, 2019 meeting. This appointment of an Interim Director is illegal and against Section 4A (1) and 4A (3) of the DSPE Act.”

At best, it could be said that Shri Prashant Bhushan made a mistake in stating what he did, but had the Minutes of the Meetings been shown to him by the Ld. Attorney General in the Court, this mistake could have been avoided. It has unfortunately become a practice in courts to accept confidential documents especially from the Executive in politically sensitive matters to advance its case without disclosing the same to the other side. This is not a healthy practice and goes against the very grain of open proceedings and requirement of full disclosure to the other side.

AG KK Venugopal files Contempt Petition against Prashant Bhushan for “vindictive, reckless” Tweets

The Supreme Court’s warning in Rajindra v. Commr. of Police establishes beyond doubt that such practice must be avoided, when it said; 

“The indulgence shown by the courts in pursuing the file seems to have given an impression that the Central Government is under no obligation to file a counter-affidavit to explain the delay. We propose to remove this impression once and for all if it persists and to impress upon the Central Government that it is under obligation to file its counter within the time permitted by the Court failing which the case may go by default.” 

Shri Prashant Bhushan’s statements do not directly or even remotely relate to the Supreme Court or the Hon’ble Judges who comprised the bench. They cannot therefore ‘scandalise or tend to scandalise and lower or tend to lower the authority’ of the Supreme Court. Nor can they be said to prejudice or interfere with the due course of judicial proceedings. 

In one of the earliest decisions in Brahma Prakash Sharma v. State of UP, appearing before the Constitution Bench, the then Attorney General of India Shri MC Setalvad argued thus,

“The learned Attorney General who appeared in support of the appeal, characterised this way of approach of the High Court as entirely wrong. His contention is that any act or publication which is calculated to lower the authority or dignity of a Judge does not “per se” amount to contempt of court.”

The Court held,

“Proceedings for this species of contempt should be used sparingly and always with reference to the administration of justice. If a Judge is defamed in such a way as not to affect the administration of justice, he has the ordinary remedies for defamation if he should feel impelled to use them…

…In the first place, the reflection on the conduct or character of a judge in reference to the discharge of his judicial duties, would not be contempt if such reflection is made in the exercise of the right of fair and reasonable criticism which every citizen possesses in respect of public acts done in the seat of justice. It is not by stifling criticism that confidence in courts can be created.”

The portion of the resolution to which prima facie objection was taken in that case described the concerned judicial officers as “thoroughly incompetent in law and whose judicial work does not inspire confidence.” 

The Supreme Court held that assuming that these statements were defamatory, they certainly did not amount to contempt of court, observing,

“No doubt, there was publication as is required by the law of libel, but in contempt proceedings, that is not by any means conclusive. What is material is the nature and extent of the publication and whether or not it was likely to have an injurious effect on the minds of the public or of the judiciary itself and thereby lead to interference with the administration of justice. On the materials before us, it is difficult to say that the circumstances under which the representation was made by the appellants was calculated to have such effect. There might have been some remote possibility but that cannot be taken note of.”

Attorney General Shri. MC Setalvad was as respected a Law Officer as the present Attorney General is. But the difference in approach is stark. 

Later, in Perspective Publications (P) Ltd. v. State of Maharashtra, the Supreme Court has beautifully culled out the principles of law on criminal contempt, holding,

“We may restate the result of the discussion of the above cases on this head of contempt which is by no means exhaustive.

(1) It will not be right to say that committals for contempt scandalizing the court have become obsolete.

(2) The summary jurisdiction by way of contempt must be exercised with great care and caution and only when its exercise is necessary for the proper administration of law and justice.

(3) It is open to anyone to express fair, reasonable and legitimate criticism of any act or conduct of a Judge in his judicial capacity or even to make a proper and fair comment on any decision given by him because “justice is not a cloistered virtue and she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.

(4) A distinction must be made between a mere libel or defamation of a Judge and what amounts to a contempt of the court.

The test in each case would be whether the impugned publication is a mere defamatory attack on the Judge or whether it is calculated to interfere with the due course of justice or the proper administration of law by this Court. It is only in the latter case that it will be punishable as Contempt.

(5) Alternatively the test will be whether the wrong is done to the Judge personally or it is done to the public. To borrow from the language of Mukherjee, J. (as he then was) Brahma Prakash Sharma case [(1953) SCR 1169] the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the court’s administration of justice or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties.”

In Indirect Tax Practitioners’ Assn. v. R.K. Jain, the Supreme Court went even further, observing,

“In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one’s mind have always been respected. After Independence, the courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements. Such criticism cannot be castigated as an attempt to scandalise or lower the authority of the court or other judicial institutions or as an attempt to interfere with the administration of justice except when such criticism is ill-motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons.

Ordinarily, the court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power.”

The comments by the editor of the weekly law reporter, which were strong, were ultimately held to be not amounting to contempt of court, with Supreme Court observing,

“We agree with the learned counsel for the respondent that this petition lacks bona fides and is an abuse of the process of the court. The petitioner is a body of professionals who represent the cause of their clients before Cestat and may be other tribunals and authorities. They are expected to be vigilant and interested in transparent functioning of Cestat. However, instead of doing that, they have come forward to denounce the editorial and in the process misled the Attorney General of India in giving consent by suppressing the factum of appointment of the Inquiry Committee by the President, Cestat. We are sorry to observe that a professional body like the petitioner has chosen the wrong side of the law.”

Shri Prashant Bhushan’s comments may be unpalatable or factually incorrect but they do not scandalise the court or interfere with administration of justice in any manner. If at all, it seeks to impute wrong information on the part of the Government of India. That cannot amount to contempt of court.

He has done yeoman service to the cause of Public Interest and governance in the country. He has brought very serious cases of corruption and environmental damage before the Supreme Court and High Courts and persuaded the Courts to intervene and examine such cases closely. In numerous matters, he has been successful in his petitions resulting in cases being filed under Prevention of Corruption Act and stoppage of environmental damage with punitive damages being paid by polluters.

He is doing it selflessly. It is true that many of his petitions or issues raised by him may not be agreeable to some of us. But that does not make him a villain. He has been under attack from ‘vested interests’. This is because those who want corruption to continue or environmental damage to persist will be interested in maligning such a person.

A section of the media is critical of him by calling him ‘Activist Lawyer’ and questioning his motives. But the answer to that lies in the many judgments of the Supreme Court and High Courts argued by him sub-serving huge Public Interest.

Shri Prashant Bhushan is my friend and I write this to defend him not because of the friendship, but for the sake of preservation of purity in administration of justice.

I have the greatest respect for Shri KK. Venugopal, the distinguished Attorney General. I have always received warmth and affection from him and so I must end in the fond hope that he will reconsider his decision of filing this contempt petition. I pray that he does.

The author is a Senior Advocate and the former President of Supreme Court Bar Association

Disclaimer: The views and opinions expressed in this article are those of the author’s and do not necessarily reflect those of Bar & Bench.