By Soorya Mariya Kurian 
“Justice is not hubris, power is not petulance and prudence is not pusillanimity, especially when judges are themselves prosecutors, and mercy is a mark of strength, not whimper of weakness.” This statement of India’s distinguished Judge V.R. Krishna Iyer in the renowned Mulgaonkar case, owes much import lately. Justice Krishna Iyer would then go on to state the rules to be complied by a prudent judge while looking into Contempt cases. The Court, he says, ‘must act with seriousness and severity where justice is jeopardized by a gross and unfounded attack on judges, calculated to obstruct or destroy the judicial process.’ That said, he also attests that, to criticize judge fairly and fiercely is no crime but a right in a democracy.
The Supreme Court has indicted senior advocate and social activist Prashant Bhushan of criminal contempt for two of his tweets; one a sarcastic remark on the photo of Chief Justice astride a motorcycle and another one citing the role of SC and its four former C.J.Is in destroying Indian democracy. Before pontificating on how these tweets would (or would not) mar the reputation of the apex court as a whole and shatter people’s faith in the judiciary, it is pertinent to note that the instant case has been taken up at an odd hour. What exasperated the ‘broad shouldered’ Supreme Court to crucify the senior advocate, at a time when a plethora of significant cases await final verdict, is intriguing.
The Contempt of Courts Act 1971 defines criminal contempt as the publication of any matter (by words, spoken or written, or by signs, or by visible representation, or otherwise) or the doing of any other act that scandalizes or tends to scandalize court; prejudices the administration of justice; or obstructs the administration in any other manner. Needless to say, the idea of contempt too, has its genesis in the British law. The authority of courts was deemed to be parallel to that of the king and presumably, none had the right to object the king. Over time, this notion matured into the present day Contempt Law. However, England, by virtue of Crime and Courts Act of 2013 has scrapped “scandalizing court” as a form of contempt.India, on the other hand, has not dispensed with this antique legal provision, but instead has shown keen interest in dusting it off every now and then, like a reminiscent of colonial rule.
The provision of criminalizing on grounds of scandalizing the court is vague and is highly subjective. This ambiguity has led to contrasting opinions among judicial luminaries. Many a times, it has overlapped with the fundamental right of freedom of speech and expression. In such legal quandaries, it is prudent to go by the oft quoted observation of Lord Atkin in Andre Ambard v. Attorney General that “Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.
It is fortunate that many Indian courts have made sagacious and liberal judgments in this regard. In Baradakanta Mishra v. The Registrar of Orissa High Court the court held that it was imperative to verify if the vilification made was to tarnish the reputation of the judge in his official capacity or in his personal capacity. In the latter case, the judge must resort to private remedies. The Contempt jurisdiction, the court stated, was not to uphold the personal dignity of any judges. The court should take into serious consideration the gravity of harm caused in impairing or obstructing the administration of justice.
Similar legal reasoning was applied in D.C. Saxena’s case of 1996 and the court asserted that ‘scandalizing the court or judge, undermines people’s confidence in the administration of justice and brings the court to disrepute’ amounts to criminal contempt. Any scandalous remarks made against the judge which can pervert the course of justice by interfering with the proper administration of justice amounts to contempt as reiterated in Shamsher Singh Bedi v. High court of Punjab and Haryana. These cases mandate the disruption of the due course of law to fix criminal contempt on a contemnor.
In the landmark case of P.N.Duda v. P.Shiv Shankar the contemnor, a cabinet minister, was acquitted even after comparing the judges of Supreme Court to ‘antisocial elements, foreign exchange violators, bride burners and a whole horde of reactionaries who have found their haven in the Supreme Court’. However, there was a world of difference in the judgment of SC in Mohd. Zahir Khan v. Vijai Singh when the apex court held a litigant liable for criminal contempt when all he shouted was a plain line-“Either I am an anti-national or the judges are anti-national”. The existing dichotomy in the legal reasoning was resolved in 2006 amendment of the Contempt of courts Act. The amendment substituted a new section for section 13 .By this amendment, courts can impose sentence if and only if it is satisfied that the contempt ‘substantially interferes or tends to interfere with the due course of justice’. Justification by the reason of truth made in public interest would also exonerate the contemnor from facing the charges as held in Indirect Tax Practitioners’ Association v. R.K. Jain. It is evident that neither of Adv Bhushan’s tweets amounted to criminal contempt, if we go by these precedents. Mr. Bhushan has only exercised the constitutional right of expressing his views and grieves with regard to the conduct of business at the top court of the nation.
A similar proceeding was faced by Kapil Sibal in 2010, upon his publication in 1995.There he had stated the malaise affecting judiciary. He criticized the judges for disciplining the lawyers when the judges themselves need to be disciplined. He added that the legal community was ‘assailing and belittling the judicial system publicly’. In stark contrast to the 2020 contempt case, the division bench on August 7, 2010 ruled that “No one much less judges could claim infallibility”. The court also added that “A fair and reasonable criticism of a judgment which is a public record would not constitute contempt, rather it must be encouraged”. The court held Mr.Sibal’s message, an expression of the concerns of a senior advocate and that he had showed corrective measures to be adopted.
Foreign courts have also come a long way in this regard. Lord Templeman refused to initiate contempt proceedings against the British newspaper Daily mirror, following the Spycatcher case, when they published an upside down picture of the three judges captioned ‘You Old Fools’. Instead of reprimanding the contemnors, the wise judge shrugged off the publication with a witty remark –that he was old and whether a fool was a matter of perception! The very interesting Australian case of R v. Brett is worth mentioning in this context. The respondent, publisher of a newspaper, was charged of contempt for having criticized the appointment of Mr. Justice Sholl under the heading ‘”Mr. Justice Sholl-Diehard Tory” .In this article, the author had also stated that “the judiciary was an institution forming an integral part of the repressive machinery of the state”. Even then, learned Justice Bryan did not prove it contempt. The court conducted a meticulous study of the article and came up with the inference that “nothing in the article lowered the authority of the court or excited misgivings as to its partiality”.
The US protects the freedom of Speech and expression from any Govt. restriction by virtue of its first amendment. Section 17 of the judiciary Act of 1789 authorises the US courts to punish by fine or imprisonment, for civil or criminal contempts. More often, the concept of criminal contempt gets muddled up with the first amendment. To settle it once for all, the Congress passed a law in 1831 limiting the courts power to punish for criminal contempt. This novel law was upheld in the landmark case of Ex Parte Robinson.
In the much celebrated American case of Bridges v. California, the bone of contention was whether the Contempt charged against the two parties was unfounded on the Free Speech and Free Press clause to the first amendment. To determine the case, the court relied on various judicial precedents. The court based their decision on the “Clear and Present Danger” cases and stated that “substantive evil likely to result must be extremely serious and the degree of imminence extremely high before the utterances can be punished.” The Supreme Court also quoted the first amendment wherein it is stated that the state shall not deprive any person of his life, liberty or property without due process of law. The court applied this legal mandate in the instant case and crafted a reasonable judgement. It was held that “inherent tendency” or “reasonable tendency” of an out-of-court publication causing disrespect to the judiciary was not sufficient to establish punishable contempt. Justice Black relied on the standard set forth in Schenck v. U.S.A.
As Lord Denning said, contempt is not a means to uphold the court’s dignity. He explicitly stated that the provision was to be exercised ‘sparingly’ and that protection of freedom of speech was paramount. As per the Indian Judiciary report (2016-17) published by the Supreme Court ,Indian High courts had an impressive 96,310 civil contempt cases and 586 criminal contempt cases. The Indian judiciary must keep up the equanimity when faced with raucous comments. It is through shrewd and judicious decisions, that the courts must win people’s faith and confidence in the judicial mechanism. The Supreme Court’s obstinacy in the Prashant Bhushan’s contempt case, will only diminish its existing stature in the eyes of common people. Above all, it is pointless in crucifying a lawyer for two harmless tweets, when no contempt proceedings were initiated against four judges who overtly criticized the apex court at a press conference in 2018.It is high time the legal fraternity rethink their actions.
About the author
 Soorya Mariya Kurian is a 4th year student of Govt. Law College, Kochi, Kerala M.G University.