Mr. K.G.Raghavan, Senior Advocate, Bangalore
Over the last few days much debate has erupted on the judgment of the Supreme Court in the Prashant Bhushan contempt case. There are two views. The one, that is expressed a bit too loudly, is that the judgment stifles honest criticism of the judicial system which necessarily includes the court and the judges,which stifling undermines not only the guaranteed right under under Art.19(1)(a) of the Constitution but also denudes the fundamental spirit of democracy, namely, the participation of the citizenry in the functioning of the democratic institutions which includes the judiciary. The contra view is that judicial system being robust and fragile at the same time, has to protect itself from scurrilous attacks which undermines not only the dignity of the court but the administration of justice. Judges do not go to press to defend themselves and the institution. Unlike the executive which resorts to press statements and interviews, judges do not as a matter of tradition and decorum take resort to public defence of their actions while the legislature debates vociferously on its actions. Judges speak only through their judgments.
Judges have a constitutional duty to protect themselves and the institution against malicious, scurrilous, offensive,or intimidatory attacks. And if in the facts of a particular case, it is established that the attacks were of the nature described above, how can judges discharge their constitutional duty?
Action for contempt of court is a self protective mechanism. It is not that the jurisdiction is exercised to vindicate anyone’s self respect or assuage a feeling of hurt or irritation, but in the larger interest of the institution i.e.judiciary itself, and ultimately democracy. This jurisdiction, as a reasonable restriction on the exercise of freedom of speech guaranteed by Art.19(1)(a) of the Constitution is recognised by the Constitution itself namely in Art 19(2) which saves laws in relation to Contempt of Court from the sweep of Art 19(1)(a). Additionally Art.129 postulates that the Supreme Court shall be a Court of record and shall have the powers of such a Court including the power to punish contempt of itself. These provisions and the various provisions of the Contempt of Court Act have been debated and deliberated upon in several judgments of the constitutional benches of the Apex Court. It is not necessary to dwelve upon the same here. They have been elaborately discussed in the Prashant Bhushan judgment. The principles are clear. It is in the application if the principles to the facts of case that the problem arises. It is so in every case.
Whether the concept or jurisdiction of contempt of court should exist at all is larger issue which requires mature debate shorn of any heat and passion and devoid of persons involved.
Even Justice Karnan was in a manner of speaking espousing a pubic cause, namely the discrimination in judicial appointments against the socially backward class of persons. But he was convicted of contempt and had to suffer imprisonment. Not a whimper of protest. Just because in the present case, a lawyer is involved should not make a difference. Law is the same for everybody, however high or low one may be in the society. The question therefore simply put is this, namely, given the established legal principles, whether the act or acts complained of constitute actionable criminal contempt? If facts as understood and accepted by the judges constitute such criminal contempt, the judges would be failing in their duty if they do not act, for posterity will blame them for not protecting a sacred institution of democracy, namely the judiciary.
From the above point of view, let’s examine the judgment of the Supreme Court in the Prashant Bhushan’s case. There are two parts to it. The first is the legal aspect and the second is the finding on facts applying the legal position.
On the first aspect, the judgment discusses the legal position laid down by the various earlier judgements and in fact accepts the position in law as canvassed by Bhushan’s lawyer that criticism of a judge as an individual is not contempt but that he has to be criticised as a judge and in the former case the judge will have to have recourse to ordinary civil law like anybody else. The Supreme Court also accepts the contention of the counsel for Bhushan that a constructive criticism to enable systemic correction in the system would not constitute contempt warranting the invocation of contempt jurisdiction. The court recognises and accepts the legal position canvassed by Bhushan relying on Baradakanta Mishra’s case. The court also notices the law declared in Re.S.Mulgaonkar’s case to the effect that the court will act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process. Thereafter,the Supreme Court refers to the observations of Justice Krishna Iyer that scurrilous,offensive,intimidatory or malicious acts are unacceptable and the strong arm of the law must, in the name of public interest and public justice, strike a blow on him, who challenges the supremacy of the rule of law by fouling its source and stream. Having so understood the law, which I believe is the correct legal position, the Supreme Court embarks upon the second aspect of the decision namely, whether the two tweets fall within the general law laid down in Baradakanta Mishra’s case or the exception carved out in Mulgaonkar’s case.
After a consideration of the case on facts, the court has recorded that the tweets do constitute contempt of court. These are pure findings on facts. There may be two ways of looking at it. For some it may be contempt but for others it may be. But what prevails in every case is how the judges view a particular set of facts and the inferences as flowing therefrom. That is final. Sometimes even if it is wrong and unpalatable.
The so called “Civil Society” cannot become the final arbiter on facts when the highest court has arrived at a conclusion on the same, may be right or wrong. For a civil society to exist based on rule of law, numbers for or against the judgment on factual aspects, do not matter. The debate should centre around not on whether Bhushan was rightly or wrongly convicted for criminal contempt, the debate should be on whether the concept of criminal contempt should be abolished as in Great Britiain. It would therefore be more profitable for the self proclaimed members of the “Civil Society” to focus on the larger issue as to whether criminal contempt should be abolished and not on whether the tweets of Bhushan constitute culpable criminal contempt. And mind you, persons who hold a view contrary to those of the members of“Civil Society” are not less civil!
Daksha Legal 