Memos from Asia

Supreme Court of India Holds Lawyer Guilty of Contempt for Two Tweets

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A general view of main building of the Indian Supreme court In New Delhi, India on Thursday, 26 September 2019. Supreme court is Indian Apex court situated at Bhagwan Das road in New Delhi.

India’s apex court has held Prashant Bhushan, an experienced Public Interest Lawyer, and Activist, guilty for contempt of court over two tweets.

The controversial case that was quickly listed for hearing by the SC, has left people discussing the boundary and difference between Freedom of Expression and contempt of court.

The Tweets

One of the tweets included a photo of the current Chief Justice of India on a bike that belonged to the BJP (ruling party) leader’s son without a helmet and mask.

Mr. Bhushan commented on the stopping of supreme court proceedings due to the COVID-19 pandemic, which he called “denying citizens their fundamental right to access justice!”

The other tweet read, “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.”

The second tweet was an attack on supreme court workings under the populist Prime Minister Narendra Modi’s government.

The two tweets in question are now withheld in India by Twitter after the platform was also called to the court as well. (The Tribune, https://www.tribuneindia.com/news/nation/twitter-withholds-prashant-bhushans-controversial-tweets-against-cji-117858)

Contempt of court proceedings

A complaint was filed against Prashant Bhushan by an individual, but the court initiated suo motu contempt proceedings before the Attorney General’s required consent for the individual application to be heard.

In court, Prashant Bhushan refused to apologize and claimed that his tweets are protected by the freedom of speech guaranteed by Article 19 of India’s Constitution.

He defended his tweet, in which he accused Supreme Court of aiding in “destruction of democracy”, by referring to the first-of-its-kind press conference held by four supreme court judges in 2018 questioning the administration of the Supreme Court and saying that democracy was at stake.

The three-judge bench talked about both tweets separately and maintained that the tweets tried to scandalize the Supreme Court and its judges.

About the June 27 tweet accusing the SC of aiding in “destruction of democracy”, the court said, “There is no doubt that the tweet tends to shake the public confidence in the institution of judiciary. The tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI.”

Talking about June 29 tweet, the court called the accusation of denying citizens access to justice, “patently false” and said that the proceedings of the Supreme Court were continued online even after physical proceedings were stopped due to the pandemic.

The court also added that the photo of the CJI was from the summer vacation of the court and that even then the court had benches working.

It stated, “Immediately after suspension of physical hearing, the Court started functioning through video conferencing. The total number of sittings that the various benches had from March 23 till August 4 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution.”

The court concluded that the tweets were not fair criticism of the court or made in good faith or interest of the public.

Finally, the bench ruled, “In our considered view, 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…. The tweets which are based on the distorted facts, in our considered view, amount to committing criminal contempt.” (Hindustan Times, https://www.hindustantimes.com/india-news/sc-holds-bhushan-guilty-of-contempt-for-his-tweets/story-DJ6BavieLqfM7JPlozEQhM.html)

An apology from Mr. Bhushan could end the case and he could be let off with a warning. Prashant Bhushan was asked to apologize by the court to which he refused twice in his affidavits.

He quoted Gandhi in his affidavit writing, “I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offense, and what appears to me to be the highest duty of a citizen.” (The Indian Express, https://indianexpress.com/article/opinion/columns/prashant-bhushan-contempt-case-supreme-court-6564711/)

The Attorney General KK Venugopal asked the court to show magnanimity, take a “compassionate view,” and forgive Bhushan.

Advocate Rajeev Dhavan who appeared for Mr. Bhushan asked the court to close the case, “put an end to controversy,” and send a “statesman-like message”.

Mr. Bhushan was given 30 minutes to think about his stance, but he refused to apologize.

The Reserved Verdict

The bench had asked the Attorney General to give his opinion on the quantum of punishment. The A-G asked the court to let off Mr. Bhushan with a warning.

The court said, “If a person says he didn’t make a mistake and he won’t apologize for it despite repeated opportunities, what will be the purpose of saying don’t do it again? It is not about him or us. It is about the institution, after all.”

The Supreme Court reserved its verdict on the quantum of punishment to be awarded to Mr. Bhushan. (The New Indian Express, https://www.newindianexpress.com/nation/2020/aug/26/prashant-bhushan-case-sc-reserves-verdict-on-punishment-after-long-courtroom-drama-2188270.html)

The punishment for contempt of court is simple imprisonment for a term up to six months and/or a fine of up to ₹2,000.

Update (August 31): The court has pronounced the verdict today and imposed a token fine of ₹1 (~15 US cents) on the lawyer. Court has also said that if Mr. Bhushan doesn’t pay the fine, he may be jailed for three months and may be debarred from practicing law for three years. (Bar and Bench)
Further Update (August 31): The lawyer paid the fine.

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