One of the reasonable restrictions placed on the freedom expression in the Indian Constitution is contempt of court. Any act by a person that would bring the image of the judiciary down in the eyes of the public or that is seen as influencing the court could be a potential contempt of court case.

On Wednesday, the Supreme Court issued notice to lawyer Prashant Bhushan in two separate contempt petitions moved against him by Attorney General KK Venugopal and the Union government. It said the matter would be heard on March 7, ANI reported.

The petitions relate to comments Bhushan made on Twitter on February 1, in which he accused the Union government of misleading the Supreme Court regarding the appointment of M Nageswara Rao as the interim director of the Central Bureau of Investigation on January 11. Bhushan had moved the court on January 14, challenging Rao’s appointment.

Venugopal accused Bhushan of intentionally raising doubts about his integrity and honesty through his tweets. The government, in turn, argued that the tweets “wilfully and deliberately” made a false statement related to a case being considered by the Supreme Court. While Venugopal told the court that he was not seeking punishment for Bhushan but for the court to address some larger questions he had raised in his petition, the Centre insisted that Bhushan be held accountable for his comments.

Bhushan’s comments on Twitter are nowhere close to be construed as contempt. The Centre’s stand therefore reeks of vendetta and is a clear attempt to muzzle a lawyer who has given the Narendra Modi government a serious headache in the Supreme Court.

On Wednesday, a bench led by Justice Arun Mishra that is hearing the contempt petitions, correctly pointed out that contempt is a “brahmastra” – the ultimate weapon of destruction in Hindu mythology. Given this understanding, the court should have thrown out the petitions considering how frivolous the charge is and how convoluted the allegations are to portray Bhushan’s comments as a case for contempt.

Complaint against Bhushan

During the court proceedings related to the Centre’s appointment of Rao as interim director of the CBI, the Centre submitted before the Supreme Court that the decision was taken at a meeting of a high-powered committee headed by the prime minister on January 10.

Bhushan took to Twitter to point out that this may not be so. He said that he had spoken to Mallikarjun Kharge – the leader of the largest Opposition party in the Lok Sabha, who is also member of the committee – who confirmed that no discussion on Rao’s appointment had taken place at the January 10 meeting. “The govt appears to have misled the court and perhaps submitted fabricated minutes of the HPC [high-powered committee] meeting,” his tweet said.

In his petition, Venugopal said that Kharge had signed the minutes of that meeting and was aware of the appointment. Bhushan’s statement, the petition argued, was an attempt to interfere with the functioning of the court and prejudice the proceedings. It also said the comments lowered the dignity of the attorney general, who is an officer of the court.

The Centre’s petition sought to paint Bhushan’s comments as an attempt at gaining publicity. “If such conduct is permitted to occur, the very faith of the people in the system of administration of justice would be shaken,” it said.

Both petitions make a painfully convoluted attempt to convert what could at the most be a simple mistake by Bhushan into a diabolical attempt to shake the authority of the Supreme Court.

A simple question that comes up from the contempt petitions is this: How can a statement accusing the Centre of fabricating its submissions in court be seen as contempt of court? Bhushan was the petitioner in the case challenging Rao’s appointment. He came across a piece of information that he thought was crucial to the case and took to Twitter to make it public. If the allegation was not true, the court would have simply dismissed it and perhaps warned Bhushan to be careful in the future. Also, the Supreme Court rarely goes by tweets to decide on a matter. The question on the high-powered committee meeting would have come up only if Bhushan had put it on record before the court. Additionally, his tweet does not raise any questions on the integrity of the judges who were hearing the case.

Second, it is ludicrous for the attorney general to say the effect of Bhushan’s tweet on him was contempt of court. Every lawyer is an officer of the court. The Supreme Court cannot initiate contempt every time something unsavoury is said about a lawyer. If this is done, half the court’s time would be spent on dealing with such cases.

Contempt of court

One of the legendary cases involving the question of contempt was fought in the United Kingdom in 1968. A petition was filed against a British member of parliament Quintin Hogg for publishing an article that the petitioners said brought the UK Court of Appeal into ridicule. In R vs Metropolitan Police Commissioner, the court of appeal said:

“Criticism, however vigorous, of a judgment or a decision of a court will not constitute contempt of court, if it is made in good faith and is reasonable, even though it contains error. 

“The authority and reputation of our courts are not so frail that their judgments need to be shielded from criticism, even from the criticism of Mr Quintin Hogg. Their judgments, which can, I think, safely be left to take care of themselves, are often of considerable public importance. It is the inalienable right of everyone to comment fairly on any matter of public importance. This right is one of the pillars of individual liberty-freedom of speech, which our courts have always unfailingly upheld.”

This judgement has often been quoted by courts in India. In Perspective Publications (P) Ltd vs State of Maharashtra, the Supreme Court said contempt could only be made out if a calculated attempt is made to interfere with the due course of justice. The court added that “a distinction must be made between a mere libel or defamation of a Judge and what amounts to a contempt of the court”.

As articulated by the UK court, the right to fairly criticise judgements and the functioning of the court should be open to all. This will include lawyers. It is quite ironical that Attorney General Venugopal, for all practical reasons seen as an important leader of the Bar, would choose to raise questions about lawyers criticising proceedings outside the court and would initiate contempt proceedings for it.

Also, given the discretionary nature of contempt laws, the courts have time and again reiterated that the process should be used sparingly.

Bhushan’s statements clearly do not create an extraordinary situation that could prejudice the due course of justice. Further, Kharge has made it clear that the agenda of appointing an interim director was not placed before the appointments committee on January 10. Bhushan also did not have access to the minutes of the meeting when he made the comments on Twitter.

Given this context, it will be wholly inappropriate to punish Bhushan for his tweets. Such action will nullify the carefully constructed jurisprudence of contempt.