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Why contempt case against Prashant Bhushan in Supreme Court could set a bad precedent

In episode 529 of ThePrint's Cut The Clutter, Shekhar Gupta says the top court’s capital is its own stature and it’s for the court to decide how fragile that stature is.

File image of Prashant Bhushan | Commons
File image of Prashant Bhushan | Commons

New Delhi: The contempt case initiated against advocate Prashant Bhushan could set a “bad precedent”, said ThePrint’s Editor-in-Chief Shekhar Gupta in episode 529 of Cut The Clutter.

Gupta was speaking in context of the contempt notice issued to Bhushan by the Supreme Court Wednesday for two of his tweets on Chief Justice of India (CJI) S.A. Bobde as well as former CJIs. The court has asked Bhushan to show cause as to why contempt proceedings should not be initiated against him.

In one of his tweets on 27 June, Bhushan had written about the “role of the Supreme Court” in the “destruction” of democracy during the last six years, and had also mentioned the “role of the last 4 CJIs” in it.

In another tweet on 29 June, Bhushan had commented on Bobde astride a Harley Davidson bike. He had questioned the CJI for riding a bike without a helmet and a face mask while “he keeps the SC in lockdown mode”.

Gupta spoke about instances where the apex court has taken a “large-hearted and broad shouldered view” in such cases and said that for it to “now get so touchy, doesn’t make sense”.

“Institutions run on their capital. Politicians run on political capital. Professions run on professional capital. Institutions run on institutional capital. So the Supreme Court’s capital is its own stature. It’s for the court to decide how fragile that stature is,” he said.  

“If the stature is going to be hit by a couple of nasty tweets, I think this will be a big mistake and the court will end up squandering a lot of that same quality, in its institutional capital,” he added.

Civil and criminal contempt

Gupta spoke about defamation laws and the contempt laws. He agreed that criminal defamation needs to go while civil defamation laws need to be strengthened. 

“It (criminal defamation) has no place in the law book of a civilised democracy,” he said.

As for contempt, he explained that in any such case, the accused are “at the mercy of the judges who have hauled you in for suspected or alleged contempt”.

The law of contempt in India includes civil and criminal contempt. According to Section 2(b) of the Contempt of Courts Act 1971, civil contempt means “wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court”.

Section 2(c) says criminal contempt includes publication of anything that “(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”.

According to the law, publication includes written or spoken words, signs or visible representations.

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The Spycatcher case

Explaining the law on the issue, Gupta referred to the aftermath of the Spycatcher case adjudicated by the House of Lords in 1987. Spycatcher: The Candid Autobiography of a Senior Intelligence Officer was written by Peter Wright, who worked for Britain’s MI5 intelligence service from 1955 to 1976.

While initially injunctions were issued against the book, co-authored by Paul Greengrass, these were reversed after the Observer Media Group published excerpts from the book. But the court held it liable for the profits it made through the publication. 

After this judgment, British newspaper Daily Mirror published an upside-down picture of three law lords with the caption, “You Old Fools”. However, British judge Lord Sydney Templeman refused to initiate contempt proceedings and said he was indeed old and whether he was a fool was a matter of perception, though he personally thought he was not one. 

Referring to this case, Gupta said that British judges take a “very liberal view” of the contempt law. 

When Indian SC was as liberal as British courts

Gupta also spoke about two contempt cases that he has been involved with as an editor. 

One of these cases involved one of the reporters at The Indian Express, Chanchal Manohar Singh, in 1996. The reporter, Gupta said, mistook a petition to be a court order.

The petition had demanded that all those who appeared for competitive exams, board exams etc, should get access to photocopies of their answer and marking sheets as a right. But before the judgment in the case could be pronounced, Singh wrote an article mistaking the petition for the judgment, and saying the court had allowed this to happen.

Due to the mistake and the consequent publication, the court had to dismantle the bench, saying the proceedings had been vitiated. The high court then initiated contempt proceedings against Singh, along with Gupta, who was The Indian Express editor at the time, and proprietor Viveck Goenka. 

Gupta recounted how the judges were “very angry” and treated them “quite rudely” during the hearings on the contempt proceedings. 

The court finally accepted the apologies by Gupta and Goenka, but imposed a three-month sentence, along with a Rs 2,000 fine on Singh. This, Gupta said, was because the judges thought there was “some mischief” on Singh’s part. 

The Supreme Court, however, set aside the punishment, saying that “this is a case in which a harsh view was not called for”. It noted that Singh had repeatedly apologised for the mistake and The Indian Express had also printed apologies acknowledging this. 

It then let him off with a warning, but directed Rs 2,000 fine to be deposited with the Legal Services Committee.

“This tells you that the Supreme Court of India has been as liberal with criticism, with the contempt law in public debate, as I would say, the British courts or Lord Templeman,” he said.

Watch the full episode of Cut The Clutter here.

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