A seriously flawed judgment

“The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt much more than it would enhance respect”.

– Per Hugo Black J. in Bridges v California (1941) 314 US 252 at 271-72.

A petition was filed in the Supreme Court by Mahek Maheshwari on July 21, 2020, requesting the court to initiate contempt proceedings against Prashant Bhushan on the motor-cycle tweet that had been made on 29^th June, 2020-almost a month earlier. The Registry placed the petition on the administrative side of the Supreme Court seeking a direction as to whether it should be listed for hearing or not because the consent of the Attorney General had not been obtained for the petition. This was indeed strange because the Supreme Court can take action on a petition made by any person only with the consent of the Attorney General or Solicitor General. Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 reads as follows:-

“Rule 3.—In case of contempt other than the contempt referred to in rule 2, the court may take action—

(a) suo motu; or

(b) on a petition made by Attorney General, or Solicitor General; or

(c) on a petition made by any person, and in the case of a criminal contempt, with the consent in writing of the Attorney General or the Solicitor General.”

Thus, under rule 3(c), the petition would not be maintainable if the consent in writing of the Attorney General was absent. Maheshwari’s petition should have been rejected for want of such consent. There is no provision to place such a petition before the court for a direction as to whether it should be listed for hearing or not. This mistake was then compounded when the court directed the defective petition to be placed before itself and treated it as a suo motu exercise of power under rule 3(a).

The very requirement of placing the petition before the Attorney General was thus defeated. The Contempt of Courts Act, 1952, did not define civil or criminal contempt separately nor was there any requirement of getting the consent of the Advocate General or any other law officer. It was the Sanyal Committee, which submitted its report in 1963, that made the recommendation of obtaining the consent of the Advocate General or Attorney General. A similar recommendation had been made by Lord Shawcross and the Phillimore Committee in the UK. The Sanyal Committee (Chapter X, para 5) noted that the consent of the Advocate General was necessary not only to lighten the burden of the court but also to give considerable assurance to the individual charged and the public at large. The Sanyal Committee noted: “We therefore recommend that in every case of contempt outside the court, action may be initiated only on a motion made by the Advocate General or the Attorney General …..”.

Therefore, converting a petition coming under rule 3(c) into a suo motu petition under rule 3(a) was not proper. The very cognizance taken by the court was without jurisdiction. Once a petition is filed, it is only for the Attorney General to decide whether it amounts to a criminal contempt or not; the Supreme Court or High Court cannot take over the functions of the Attorney General on the ground that it has suo motu power. It has been repeated a thousand times that when the law requires a thing to be done in a particular manner, it should be done in that manner or not at all.

Under the Contempt of Courts Act, 1971, section 15 enables the Supreme Court or the High Court to take action either suo motu or a motion made either by the Attorney General or the Advocate General [see s. 15(1)(a)] or by “any other person, with the consent in writing of the Advocate-General [see s. 15(1)(b)].” The latter two categories are called “proceedings commenced on a motion” and s. 17(2) requires that the notice to the alleged contemnor must be accompanied by copies of affidavit on which the motion was founded. The Act does not permit the court to convert a petition under section 15(1)(b) into a suo motu petition.

Another tweet was made on June 27, 2020 about the role of the Supreme Court, which had already been widely circulated. It suddenly re-appeared in an English newspaper on the very date (July 22, 2020) on which Mahek Maheshwari’s petition was listed before the Supreme Court. The Supreme Court took suo motu notice of the second tweet, which it could do under rule 3(a). Perhaps the publication of a tweet made almost four weeks earlier on that very morning was just a mere coincidence.

The second serious error in the decision is the complete failure to consider the contentions raised by the contemnor in his reply-affidavit. The judgment of the Supreme Court runs to 108 pages and there are copious extracts from Indian and English judgments in the first 93 pages. At para 60 on page 93, the Supreme Court decides to analyse the tweets “in the light of guiding principles” of the earlier judgments. In para 2, the Supreme Court had noted that Prashant Bhushan had filed a detailed affidavit of 134 pages along with annexures that ran into 463 pages. In this affidavit, Bhushan had given his explanation or defence with regard to both the tweets. It is entirely a matter for the Supreme Court to accept the defence of the contemnor or reject it. But it is necessary that the court deals with the response. In contrast, in P.N. Duda v. Shiv Shankar AIR 1988 SC 1208, the Supreme Court considered the objectionable statements in detail and held that there was no contempt.

On the first tweet, the Supreme Court just stated that it was unable to accept that the criticism was bona fide and explained how the Supreme Court had functioned through video-conferencing during COVID-19 lockdown. None of Bhushan’s contentions in paras 31-38 have been considered.

As regards the second tweet, Bhushan’s affidavit seeks to explain his stand from paras 39 to 174, pages 37 to 134. Once again, the court should have considered his submissions and only then decided whether it amounted to criminal contempt. Under the amended section 13, the Court is required to consider whether justification by truth is a valid defence and whether the contempt was of such a nature that it substantially interfered with the due course of justice. Unfortunately, the court has only reproduced the criticism made by the tweet and held, inter alia, that it shook the foundation of Indian democracy and has to be dealt with an iron hand.

In criminal contempt proceedings, the Supreme Court functions like a trial court and is also the last court. Section 19(1) gives a statutory right of appeal to a person found guilty of contempt by the High Court. The fact that there is no appeal against an order of the Supreme Court makes it doubly necessary that it takes the utmost precaution to ensure that justice is not only done but seen to be done.

In Mukhtiar Singh v. State of Punjab (1995) 1 SCC 760, the trial court had not considered the evidence before it. The Supreme Court admonished the trial court in these strong terms:

“On the plainest requirement of justice and fair trial the least that was expected of the trial court was to notice, consider and discuss, howsoever briefly, the evidence of various witnesses as well as the arguments addressed at the bar. The trial court has not done so. The trial court apparently failed in the discharge of its essential duties.

…

The judgment is so infirm that we are unable to appreciate as to how the findings were arrived at. The judgment of the trial court is truly speaking not a judgment in the eyes of law.” (emphasis supplied).

It is the second tweet of Bhushan that merited serious consideration. One may disagree with his justification, but the contents of his affidavit are indeed disturbing and require introspection. Bhushan quotes the statements made at the historic press conference by four senior judges in January, 2018. He draws attention to statements by Justice Kurian Joseph (in Nov-December 2018) that there were external influences relating to “allocation of cases to benches headed by select judges” and that “someone from outside was controlling the CJI, that was what we felt”.

It is submitted that failing to consider the response of Bhushan is a serious error and requires the recall and reconsideration of the judgment. The contempt jurisdiction should never be used to bludgeon criticism. The Court would do well to ponder over the comment of Justice Hugo Black made 80 years ago.

The author is a Senior Advocate practicing in the Supreme Court of India.