RESEARCH NOTE ON CONTEMPT OF COURT LAW WITH

SPECIAL EMPHASIS ON PRASHANT BHUSHAN’S CASE1

Sadin Karki2 (2020)

National Law College, Nepal

FACTS:

The contempt case against Prashant Bhushan revolves around two tweets posted by a him in
June 27 and June 29. The first tweet remarked that Supreme Court along with last four Chief
Justices played a significant role in the destruction of Indian democracy even without formal
emergency. The second tweet criticized Chief Justice of India, Justice Sharad Arvind Bovde,
for riding a motorcycle belonging to a BJP leader without wearing a mask and a helmet while
keeping the Supreme Court in lockdown mode denying citizens their fundamental right of
access to justice.3 With respect to the aforementioned tweets, three judges of the Supreme Court
Arun Mishra, B.R Gavai and Krishna Murari issued a notice for contempt of court and initiated
suo moto criminal contempt of court proceedings against Prashant Bhushan.

PROBLEM OF LAW:

The conviction of Prashant Bhushan meant that he has scandalized, prejudiced, degraded and
undermined the authority of court and entire judicial system whereas the acquittal meant that
his tweets were part of his freedom of speech guaranteed by the Constitution of India. So, the
prime question before the court in this highly anticipated case was, “Whether Prashant Bhushan
is liable for contempt of court through his two tweets or were they part of his right to freedom
of speech?”

COURT JUDGEMENT:

Supreme Court ruled that the two tweets were based on distorted facts, so they amounted to
criminal contempt and held Prashant Bhushan guilty fining him Re 1.4 The topmost court also
said that in the instance of failure of payment of Re 1 fine, Bhushan would be jailed for three
months and also barred from practicing for three years. The court in its obiter dicta also

1
In Re Prashant Bhushan v. Unknown, (2020) SCC Online SC 698 (India).
2
Sadin Karki is the author of this article and be accessed via [email protected].
3
Karan Deep Singh & Hari Kumar, A Lawyer’s Tweets Put India’s Supreme Court on Trial and Him at the Risk
of Imprisonment (Aug. 24, 2020), https://www.nytimes.com/2020/08/24/world/asia/india-lawyer-trial-
tweets.html.
4
Supra note 1.

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remarked that the legitimate criticism of both judgements and functioning of the institution has
always existed, however, when the criticism is calculated and actuated by malice, the authority
of court is undermined.5

ANALYSIS AND INTERPRETATIONS:

Contempt of court means any conduct that tends to bring the authority and administration of
law into disrespect or disregard.6 Contempt of Court Act, 1971, Article 129 of the Constitution
gives Supreme Court and Article 215 gives high court the power to initiate and punish for
contempt of court. In the case of Pritam Pal vs State of Madhya Pradesh, the Supreme Court
held that, “The contempt jurisdiction of the Supreme Court and the High Court is based on a
constitutional foundation.”7

Section 2(a) of the Act defines contempt of Court to be either civil contempt or criminal
contempt. 8 According to Section 2(b), civil contempt means the willful disobedience to any
judgement, decree, direction, order, writ or other process of a court or willful breach of an
undertaking given to a court.9 According to Section 2(c), criminal contempt means the
publication of any matter or the doing of any other act which scandalizes, prejudices or
interferes with the authority of court, judicial proceedings or the administration of justice.10

The law governing Contempt of Court in India i.e. Contempt of Court Act, 1971 along with
Prashant Bhushan’s case is not free from controversy. There are certain conflicting norms,
principles as well as practices which can be described in following five points:

1) Freedom of speech vs Contempt of Court:

Prashant Bhushan’s case along with most of contempt of court cases are the instances where
freedom of speech and the contempt of court collide with each other. The Court is faced with
a choice between two conflicting principles and with a principle of freedom of expression that
is subject to a number of exceptions which must be narrowly interpreted.11 In his defense,
Bhushan said that the tweets were part of his right to free speech in accordance with Article

5
Id.
6
James Francis Oswald, Oswald’s Contempt of Court, Committal, Attachment and Arrest upon civil process
(2019).
7
Pritam Pal v. High Court, AIR 1992 SC 904 (India).
8
The Contempt of Courts Act, 1971, Act No. 70, Acts of Parliament, § 2(a) (India) (hereinafter Contempt of
Courts Act).
9
Contempt of Courts Act § 2(b).
10
Contempt of Courts Act § 2(c).
11
The Sunday Times v. U.K., 2 Eur. Ct. H.R. 34 (1979), Series A No. 30, 65 EHRR 229.

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19(1)(a) of the Constitution and was bona fide criticism of the court. He also argued that the
tweets were only against the present and the past three Chief Justice of India in their individual
capacity and were not calculated to interfere in the course of justice.

Article 19(1)(a) of the Constitution guarantees freedom of speech as a fundamental right to

every Indian citizen12 subjected to reasonable restrictions under Article 19(2) whereas on the
other hand, Article 129 declares the Supreme Court to be the “court of records”13 and bestows
upon it “all the powers including the power to punish for contempt of itself.”14 The Supreme
Court in Prashant Bhushan’s case noted that the existing law of criminal contempt is one such
reasonable restriction of freedom of speech and the power to interpret the meaning of
“contempt” lies with the Supreme Court.15

2) Constitutional Bench:

Article 145(3) of the Constitution provides that, there shall be a quorum of minimum five
judges for deciding any case involving substantial questions of law as to the interpretations of
the constitution.16 Since, Prashant Bhushan’s case involves a substantial question of law on the
interpretation of the Constitution of India and has serious repercussions on fundamental rights,
so the matter ought to be heard by a Constitutional Bench however, the matter was heard by
the aforementioned three-judge bench.

3) Right to appeal:

An intra court appeal is provided under Section 19 of the Contempt of Courts Act, 1971 if the
order is passed by the single bench judge of the High Court.17 In the case of division bench,
appeal can be filed in the Supreme Court of India.18 This provision of right to appeal ensures
legal safeguard and avoids even the minute possibility of miscarriage of justice. The right to
appeal is a requirement of due process and is also the essence of judiciary.19 However, in the
case of conviction by Supreme Court in a suo moto criminal contempt, right to appeal is not
available which means that there is absence of mechanism of legal safeguard as well. The
absence of legal safeguard is the loophole of Contempt of Court Act which puts the defendant
in an unfair position. To overcome this loophole, there should be a provision for an intra court

12
INDIA CONST. art. 19 (1)(a).
13
INDIA CONST. art. 129.
14
Id.
15
Supra note 1.
16
INDIA CONST. art. 145.
17
Contempt of Courts Act § 19.
18
Contempt of Courts Act § 19(b).
19
Cassandra Burke Robertson, The Right to Appeal, 91 N.C.L. REV. 1219, 24 (2013).

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appeal against an order of conviction in criminal contempt passed in first instance by Supreme
Court.

4) Global Standards:

Most of the legal system globally including progressive democracies in the West, which have
influenced the Indian jurisprudence have dropped or modified the clause that criminalizes
scandalizing the court but the court may address direct contempt or misbehavior inside the
courtrooms.20 It means that contempt of court is no longer a criminal offence but only a civil
offence punishable with fines. However, in India, Contempt of Courts Act, 1971 provides for
a maximum jail term of six months or fine, or both.21 The delicate question is, “Whether the
criticism of courts should be criminally penalized in a democracy?” The answer to that question
is obviously no, the law governing the contempt of court needs to evolve with expanding
judiciary.

5) Unclear stance of judiciary in the Contempt of Court:

The stance of the India Legal System in the matters concerning the contempt of court is very
unclear. On one hand some remarks are regarded to be an act of contempt whereas on the other
hand, similar remarks are disregarded.

Retired Justice Beg remarked that Justice H.R. Khanna’s famous dissent in the ADM Jabalpur
case (1976), which cost his job as a Chief Justice made no contribution to law but only to his
popularity. The Allahabad High Court did not find Justice Beg guilty of contempt for his
remarks.22

However, after some time when Booker’s prize winner, Arundhiti Roy criticized Supreme
Court for the way it dealt with the evictees of the Narmada dam project, the apex court invoked
the contempt law against her and she was sentenced to a day in jail and was slapped with a
fine.23

Former Law Minister of India, Punjala Shiv Shankar said that, “Antisocial elements i.e. Federal
Exchange Regulation Act (FERA) violators, bride burners and a whole horde of reactionaries

20
Country ire: Criticism of Judiciary (July 30, 2020), https://www.telegraphindia.com/opinion/the-law-against-
contempt-of-courts-needs-to-evolve-with-expanding-democracy/cid/1787687.
21
Contempt of Courts Act, § 12.
22
Gautam Raman, Various Examples What is criticism and what is contempt? (August 18, 2020),
https://www.thehindu.com/opinion/op-ed/what-is-criticism-and-what-is-contempt/article32378502.ece.
23
In Re: Arundhati Roy v. Unknown, AIR 2002 SC 1375 (India).

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have found their heaven in the Supreme Court.” The Supreme Court held that these statements
did not impair the administration of justice and acquitted him on the charges of contempt.24

However, in the aforementioned Prashant Bhushan’s case, Supreme Court held that the tweets
impaired the administration of justice and convicted him.25

Hence, from the above-mentioned cases, it can be argued that judiciary is not clear in its
instance in the contempt of court cases.

CONCLUSION AND RECOMMENDATIONS:

Judiciary, one of the three branches of government is a vital organ which safeguards, protects
and promotes the rights as well as interests of citizenry. Contempt of Court law is essential in
a democratic society which safeguards the interest and work ethics of judiciary. In other words,
it is the law that protects the “Protector of all laws.” However, the provisions of contempt of
court are unclear, ambiguous and needs timely reform. The law governing contempt of court
should meet the global standards and the Supreme Court should clearly interpret the provisions
of those laws, only then, the democratic society dreamt by the framers of the constitution can
be transformed into a reality.

24
P.N. Duda v. V. P. Shiv Shankar & Others, AIR 1988 SC 1208 (India).
25
Supra note 1.

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