An Anecdote
At
the cost, consequence, and risk of being either a B for “Bhakt” or a C for “Chamcha”,
because these are the only two categories of citizens living in the Country
today. Or, being ostracized and kicked out of some ‘club of perception’ before
being judged on personal and trivial preferences – like, having a JIO Sim or
Airtel (Jio is B and everything else is C); prefer Ladoo or Barfi (Ladoo is
Bhakt and Barfi is Chamcha, keep guessing, why?). Let me put this straight “I
would rather like to be called a B than being a C or a BC)”. Everyone seems to
be so much so on the verge of a huge divide and the fault finding mechanism that
is so razor sharp that even a fair criticism of the opposition or the
government will quickly rechristen you as B or C. When you choose cow urine you
are B, choosing camel urine makes you C, and, if you say that urine does not
make a good drink or you choose none, you are such a BC. So, in contemporary times,
when B and C are the only options and remaining silent is also counted as
sympathizer of either B or C, let’s try and explore this very important and
relevant topic of the “Contempt of Court” in its true, neutral and third-party
perspective. Yes, you can always label it the BC school of law and blame this
article of being legally logical.
Being
a student of law (a lawyer is a student of law, the moment the student dies,
the lawyer dies!), I quickly learnt to look at things rationally. Between
law and morality; god and evil; or, virility and sedately, there is always a
scope for the Third Dimension. Let’s keep our Morality, perceptions, good, bad,
and ugly in the parking lot for a little while and test the incidence and the
irritant (yes, there is difference - an irritant is “a cause or potential
cause of one or more incidents”), from a true state of neutrality. As a
third party perspective where does the law of contempt finds a space. But, before we do that, I have a reminiscence of an interesting incident
that I myself was witness to.
In the year 2005, being a fresh law graduate, I had little or no knowledge of practical application of law and the court's functionality. The law schools do not teach you that and things are more than meets the eye. I was more or less a trainee junior associate with a senior (we will not be taking names, except Prashanth Bhushan who is our Star Actor in this article. I or my Senior are no ways related to Mr. Bhushan 😁) practicing at the Supreme Court of India and the Delhi High Court. There was an infamous judge (Hon’ble Justice who retired long back) at the Delhi High Court who was highly short tempered and a know-it-all judge (remember the rules, we are not taking names, unless you have already made it 😊) . If that was not enough, he often used to humiliate the advocates for having little or no knowledge or on one or more trivial counts. There was an interesting courtroom exchange that I was witness to and is as follows, to the best of memory:-
Court
: Mr. Senior Counsel, what is this revision application all about?
Senior
: My client’s application was rejected by the lower court because it was filed
after 60 days of the commencement of the trail.
Court
: 60 days are you sure? When does a trial commences?
Senior
: Yes My Lordship. Trial Commences after the framing of the Issues.
Court
: No. Trial commences after the filing of the Written Statement. You are a
senior and you should know this.
Senior
: My Lordship, I still believe trial commences from the framing of the issues.
Court
: The revision application is without merit and dismissed without any order as
to the cost. Detail order to follow. CAV.
Senior
: But My Lordship has hardly heard me out.
Court
: If you do not know simple things you cannot be allowed to waste the time of
the court.
Senior
: How can you even pass such personal comments? You do not know simple things.
Court
(furiously) : I will initiate a contempt proceedings against you for what you
just said.
Senior
: I am standing here for the next two hours and I want to see the contempt
powers of this Court.
At
this, the temperature of the courtroom was high and other members of the Bar
immediately jumped to calm the situation. The judge, out of frustration, went for a small break and
I with my Senior were out of the court premises for our chamber. After some passage
of time, I asked my senior whether he had given it a thought what would on
earth happen if the contempt was initiated against him. With calm he said “the
contempt power is hardly a power and I am happy about recriminating.” Despite dictating
the order of dismissal in the open court, the case was not dismissed and was
simply released from the list of the Court to be placed before the other court.
That was wise of even the Judge because the relief claimed was for condonation
of delay (indirectly) and delay unless inordinate is usually condoned. Court
looks into procedural aspects compassionately and the “commencement of trial”
was an academic issue barely touching the issue at hand.
Now,
there were academic and behavioral learning from this incident. Some quick and
some after due deliberation. Three quick learning were - First, it takes two
to Tango and it is always comity between the Bar and the Bench that works in
the dispensation of justice. Second, vanity is concomitant of animosity, and
Lastly, recrimination injures mutually. Three deep learning from the same
incident that I learned in the last 15 years are at the end of this Article. Lest
we dilate, let’s see what this contempt power is all about.
Law of the Land
The
Framers of the Constitution were conscious of the fact that the Judiciary needs
some weapon to protect itself from its own contempt. While deciding upon a
dispute brought before it in law, or suo motu, judiciary has to deal
with retrograde, recalcitrant, dilatory, refractory, discomfiting, maudlin,
facetious, rile, and the bemused with pensively, conscientiously, sedately and
sans bias. While doing so, the Judiciary directly exposes itself to contentious
opinions with deep animosity that is detrimental and deign to its valor. Often such
attacks are from the known quarters. The framers of the Constitution thus kept
Article 129, 142(2) and 215 of the Constitution, that gives the power to the
Court of Records (read Supreme Court and the High Courts) the power to punish
for its own contempt. The Contempt of Courts Act, 1971, a small piece of
legislation, was enacted in furtherance to the constitutional mandate to allow
the judges to dispense justice sans fear, favour, affection or ill will. The
freedom of Speech and Expression as enshrined in Article 19(1)(a) of the
Constitution is subject to reasonable exceptions enumerated in Article 19(2).
In the fight between Freedom and Exception, Freedom shall and must win but not
sans Exception. Freedom, is not Freedom to Interference; it is not Freedom to Scandalize; and, definitely not
Freedom without consequences. With such intention the legislature divided
Contempt as Civil and Criminal under the 1971 Act. Scandalising the Court is a
Criminal Contempt under the 1971 Act alongside interference in the due course
of a judicial proceeding or obstructing the administration of justice. The
Supreme Court and the High Courts have the power to punish for contempt of court,
either with simple imprisonment for a term up to six months or with fine up to
Rs. 2,000 or with both.
The Incident
By
judgment dated: 14.08.2020 pronounced by a Bench of 3 Judges of the Supreme
Court, Mr. Prashanth Bhushan, has been found guilty of having committed
criminal contempt of court and the case is adjourned to hear regarding his sentence.
The basis for action for contempt are two tweets admittedly posted by the
contemnor. The first one reads as
follows:
“CJI
rides a 50 lakh motorcycle belonging to a BJP leader at Rajbhavan, Nagpur
without a mask or helmet at a time when he keeps the SC in lockdown mode denying
citizens their fundamental right to access justice”
The
second tweet reads as follows:
“When
historians in 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 Supreme Court in this destruction and more particularly the
role of the last 4 CJIs”
Now,
there has been a lot of hullabaloo regarding the judgment delivered, freedom of
speech or expression, right to fair criticism, and suppression through
hegemony.
On
merits, however the judgment is correct. Contempt of Courts Act 1971, is a
valid and constitutional piece of legislation. It is a settled proposition of
law that the Supreme Court has power to take action suo motu and that, in such
an event, consent of the Attorney General is not required. The tweets are contemptuous and amount to
Criminal Contempt on the face of it. It is
equally a settled principle of law that whether the context is contemptuous or
not is for the court of record to decide. In the present context, to decide
whether the remarks amount to criminal
contempt or not, one has to see the repercussion of such imputation in the minds of the plebian. [In the first tweet the
allegation that CJI was riding the motor cycle is admittedly not true
(underlining supplied) and hence the question of wearing a helmet does not
arise. Reference to the owner of the
motorbike as a BJP leader and reference to the premises of Rajbhavan are also
not without significance. Evidently, the contemnor intends to inject politics and
hospitality into the episode. More than all these, as pointed out in the
judgment, the averment that the “CJI has kept the Supreme Court in a
lockdown mode, denying citizens of their Fundamental Right to access justice”
is patently false. The court has been
functioning even during lockdown through video conference and the contemnor
himself has approached the court both as a litigant and a lawyer and has
obtained relief. The tweet read as a whole is calculated to create an
impression that the Chief Justice of India has closed down the Supreme Court
disowning his responsibility and is enjoying ride in a costly motorcycle
sponsored by the Ruling Party. Undoubtedly this remark (which is prima facie
false), is scandalous and calculated to undermine the dignity and authority of
the court. So far as the second tweet is
concerned, not much argument is required to show that it amounts to gross
criminal contempt. The clear meaning of
the imputation is that the Supreme Court in general and the four Chief Justices
of India in particular, have been responsible for destroying democracy in this
country during the last 6 years. This is
a clear case of condemnation of the Supreme Court and four Chief Justices, are
responsible for destruction of democracy.
What will be the impression created in the mind of the public? – That an
institution which has to protect democracy has destroyed it. Undoubtedly it
lowers the dignity and authority of the Supreme Court and four Chief Justices,
in the estimation of the public in general.
It is impossible to comprehend, that these assertions have been made
bonafide and in public interest.]
[***colored portion is inspired from - Sri Prashanth Bhushan’s conviction for contempt – Justified, by B.V.Acharya,
Senior Advocate and Former Advocate General, Karnataka for a detail discussion
on the merit of the case.]
The Irritant
There is a far bigger and
significant issue that we are facing today, and, that is what we begun this
Article with. For, the tweets made by Mr. Bhushan; the judgment delivered
against him; his refusal to apologize; and, the strong protest by a group of
advocates, media and the members of Civil Society (who claims to be the
conscience keeper of the democracy and independence) are all but incidents. The
larger picture is something else. Those
who are themselves the most Intolerant of the lot, will recriminate of
intolerance, with a victim card in hand. Spit and Run is a fashionable trend. Spit on Face, Run again and play victim card in loop, is all so HOT and demanding. There
is a conscience, consistent and incessant attempt to undermine all the
institutions and pressurize them to act or at least take side against the
Government. Criticizing all and every efforts of the government and its institution
is the symbol of high-intellect. Keeping neutral is not an option and remaining
silent is to support the establishment (remember B, C and BC). The same person can become relevant and irrelevant to the same set of B and C and the only thing that matters is which line a person is toeing. Let’s get back to where
we started. How may of us have observed
that there is a rapid and spontaneous polarization happening and the most
vociferous braggart is the leader. In all it’s anxiety, it is just that Mr.
Bhushan’s vociferous opinion was appalling and crossed the line. The Supreme
Court was also in no mood to show any mercy. It is the long-standing tradition
of tolerance and comity that has built the Bar and the Bench and it is mutual. Mr Bhushan could
have avoided this act of temerity and the Courts equally could have shoveled it
below the red-carpet. But it seems, for once, the court thought the incident and
the irritant both needs to be dealt with iron hands and punished as per law to
maintain the Rule of Law and the Constitution it has to swear and abide by.
MAY it Please your Lordships
The punishment for the contempt of
Court is rather symbolic (simple imprisonment for a term up to
six months or with fine up to Rs. 2,000 or with both). Conditional Apology is also more
of a Spit and Run to Spit again. I am sure and going by the nature of Mr. Bhushan, he will choose to be behind bars rather than submit fine, even if a minimum Fine is the only punishment given. Remember, Victim Card is very important if you want to sustain yourself in this murky game.
Every member of the Bar and the
bench have collective responsibility to maintain the comity. This has happened
all along. As I mentioned in the anecdote above, even the worst of
short-tempered ones are left with regret and bad taste in this fight. Nobody wants
a pyrrhic victory at the cost of the institution. Avoidance is the best
medicine and I am sure the punishment given in Mr. Bhushan's case will be mere symbolic.
With that hope, I would end with
the three learning, that I have now made out from the golden words that my senior said 15 years ago : “the contempt power is hardly a power
and I am happy about recriminating.”
1)
The
elephant is never won by anger; nor must that man who would reclaim a lion take
him by the teeth. Therefore be courteous before the court and other lawyers. Never bad mouth
about the judges.
2)
In the fight between Freedom and
Exception, Freedom shall and must win but not sans Exception. Freedom is not freedom to interference; Freedom is not freedom to scandalize; and, Freedom is definitely not Freedom without
consequences. Choose your Freedom wisely.
3)
Those who attack the judiciary must
remember that they are attacking an institution which is quintessential when it
comes to saving the aggressor himself.
Aur ha –
ek Prashanth Bhushan ko contempt ki punishment milne se SAMBIDHAN KHATRE MEIN
NAHI AAYEGA!
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