Have the judges in the Prashant Bhushan judgment in the contempt case mixed up “ democracy: with “ autocracy”? Does the judgment need recalling?  Does this case remind us of an autocratic past that we must junk to realise the Constitutional vision of a true democracy where criticism and questioning of courts is an essential part of democracy and not a crime?  Prof. G. Mohan Gopal, former Director, National Judicial Academy and former Director of the National Law School of India University, Bengaluru, critiques the judgment.

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The August 14, 2020 finding of a three-judge bench of the Supreme Court in In Re Prashant Bhushan & Anr.,Alleged Contemnor that, by sending two tweets, Advocate Prashant Bhushan was engaged in an “attempt to shake the very foundation of constitutional democracy” in India by “destabilising” the Indian judiciary” is entirely unconvincing on facts and on law. It comes across as hyperbole unbecoming of the dignity, dispassionate sobriety and reliable precision that has come to be expected from one the world’s greatest Apex courts.

A charge that Mr. Bhushan has attempted to shake the very foundation of constitutional autocracy in India would, on the other hand, be credible. This, he has done. And there is every reason and every urgency for all of us to join him in attacking, through peaceful and legal means, “the very foundation of constitutional autocracy” in our country. 

Autocracy has, after all, been our norm since time immemorial. It is an ancient tradition for us. Democracy, on the other hand, is a new and nascent experiment, forced on an unwilling elite by a mass struggle for freedom. The language and culture of autocracy comes easily to us — a justice system in which the “king’s law” is conveyed by courts to an obedient people; the law is enforced with an “iron hand” which, with “firmness”,  “strikes” those who “attack” the “majesty” of courts (words in quotes are from the judgment). 

Autocracy is still seen by those who have faith in the ancien regime as the best — in fact, the only — way to establish order and achieve progress in our “chaotic” country. Returning to a Hindu monarchy — the best system according to Golwalkar — may not any longer be an option in today’s world. However, for them, a ‘constitutional autocracy’ founded in majoritarian religion — ‘constitutional’ but in name — is a necessary and feasible second-best option. Keep a hollowed-out Constitution nominally in the frame, but photoshop democracy out of it.

In this context, Advocate Prashant Bhushan’s powerful, persistent, fearless and effective campaigns against autocracy have become intolerable to autocrats in all branches of the State, and in our larger society. He must be stopped. Criminal contempt of court (“scandalizing” the court) becomes an appropriate tool to stop him because criminal contempt power is, jurisprudentially and procedurally, an unruly horse providing vast unchecked discretion to the judiciary to impose criminal conviction and criminal punishment on those who challenge the system, free of normal checks and balances. Many traditional grounds on which a person arrayed for other crimes can defend himself or herself are disabled when a Court unsheathes its awesome power of criminal contempt. 

As the Supreme Court is not acting under the Contempt of Courts Act in this case, it lacks power to act against Advocate Bhushan’s speech.

This is what enabled this case to race from the communication of the first tweet to conviction in 48 days — lightning speed that even Chinese criminal courts would envy — while one of India’s top lawyers was reduced to the role of a helpless spectator of his own trial and conviction, with little meaningful opportunity to defend himself. The Attorney General was given short shrift — even an Attorney General who is not in the least expected to defend Bhushan’s, or any one’s, free speech. Converting a matter initiated by a petition into a suo moto proceeding, making the cause its own, the judiciary became the accuser and the judge.

The judgment in In Re Prashant Bhushan is per incuriam. Three legal errors deserve to be highlighted in particular.

(1) The Supreme Court lacks power over contumacious speech when not acting under the contempt of courts act

The judgment says (paragraph 18), “It has been held, that the Court is vested with the constitutional powers [under Articles 129 and 142] to deal with the contempt and Section 15 is not the source of the power to issue notice for contempt…the Court is exercising its inherent powers to issue notice for contempt. It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that, the procedure followed is required to be just and fair and in accordance with the principles of natural justice.” 

This has major implications for the powers of the Supreme Court. Here’s why.

Article 19(1)(a) of the Constitution guarantees that “All citizens shall have the right to freedom of speech and expression”. For an autocrat, this may be one of the most hated provisions of the Constitution. It is, however, the heart and soul of a democracy — a most precious right that can be restricted only in the rarest of rare cases, subject to strong safeguards. 

Under Article 19(2), our precious right to freedom of speech and expression may be restricted only by legislation made by the State imposing “reasonable restrictions” in the interests of nine enumerated considerations, one of which is contempt of court. 

The Constitutional scheme is clear. Under Article 19(2), only “reasonable restrictions” may be imposed on Article 19(1)(a) freedom by a legislature by enacting legislation. Restrictions cannot be imposed on Article 19(1)(a) freedoms directly by the judiciary or the executive. The judiciary is only to interpret and apply the restrictions imposed by the legislature. 

Accordingly, pursuant to Article 19(2), Parliament enacted the Contempt of Courts Act, 1971, imposing, inter alia,  “reasonable restrictions” on speech and expression that amounts to criminal contempt. Therefore, under Article 19(2), any restriction on speech and expression on the grounds of criminal contempt may be imposed only under the Contempt of Courts Act.

As a result, when the Supreme Court is not acting under the Contempt of Courts Act, it has no power to restrict contumacious speech or expression. The Supreme Court may punish other acts of contempt under its Constitutional contempt power, but not ‘speech and expression’.

It needs to be heard and tried afresh by a bench which does not include the judge whose conduct has been questioned by Advocate Bhushan.

As the Supreme Court is not acting under the Contempt of Courts Act in this case, it lacks power to act against Advocate Bhushan’s speech.

For this reason, the judgment is in error.

(2) The judgment is vitiated by conflict of interest

This judgment is vitiated by conflict of interest. As is well known, and as Advocate Prashant Bhushan’s affidavit in reply appears to have specifically said, he has raised serious questions in the past about the judicial conduct of the presiding judge. Accepted canons of judicial ethics would require that, if indeed this is the case, the concerned judge should not be deciding this matter.  It needs to be heard and tried afresh by a bench which does not include the judge whose conduct has been questioned by Advocate Bhushan. Justice must not only be done, it must be seen to be done.

(3) Some of the  legal standards applied in Prashant Bhushan to determine criminal contempt are illegal and unconstitutional

The judgment has convicted Advocate Bhushan on the basis of several extremely vague and imprecise grounds which have but the farthest logical link, if at all, to the statutory definition of criminal contempt. 

The types of conduct found to constitute criminal contempt in the judgment include: (i)“undermining the dignity  of the Supreme Court” (what is the Court’s legal understanding of the “dignity” of an institution?); (ii) “lacking deference and respect paid to judges and their acts”; (iii) “attack” on one or more judges which judges find to be “scurrilous, offensive, intimidatory or malicious beyond condonable limits”; (iv) “shak[ing] the very foundation of constitutional democracy”; (v) “destabili[sing] the very foundation  of the judicial system”; (vi)“caus[ing] non-Supreme Court judges to lose confidence in the Supreme Court”;  and (vii) “demoralizing” the Judges of the highest court.

Vague laws may trap the innocent by not providing fair warning.

These standards suffer from extreme vagueness and arbitrariness that violate Article 14  of the Constitution and are “void for vagueness” . In Grayned v. City of Rockford (1972), the U.S. Supreme Court said, ”It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.

Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abuts upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “steer far wider of the ‘unlawful zone’ . . . than if the boundaries of the forbidden areas were clearly marked.” In Kolender v. Lawson (1983) the U.S. Supreme Court said, “the void-for-vagueness doctrine requires that a penal statute define the criminal offence with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory treatment.”

Prashant Bhushan would not have ended in conviction had a Constitutionally compliant standard been used to define prohibited speech instead of the “bad tendency” test. 

The new prohibitions of speech introduced in the Prashant Bhushan judgment  also suffer from constitutionally forbidden “over-breadth” in as much as they prohibit currently constitutionally protected conduct, which does not fall within the restrictions in the Contempt of Court Act.

The expansion of the scope of criminal contempt by the judgment will have a chilling effect on legal discourse. The criteria applied in Prashant Bhushan to determine criminal liability are illegal and unconstitutional. For this reason also, the judgment is in error.

The rationale for protection of free speech from contempt power

Protection of free speech depends crucially on the definition of prohibited speech. The broader the definition of prohibited speech, naturally, the greater the reduction of free speech.

The nearly half-century old Contempt of Courts Act, 1971, and several judgments including In Re Prashant Bhushan still follow, often without any explicit recognition, acknowledgement or discussion (as in this judgment), the outmoded “bad tendency” principle to define restricted speech. It has its origins in English common law. It prohibits all speech that has a mere “tendency” to incite or cause illegal activity, regardless of actual consequences arising from the speech.

In line with this principle, In Re Prashant Bhushan says that the two tweets tend to give an impression, that the Supreme Court has a particular role in the destruction of democracy in the last six years and the last four CJIs had a more particular role in the same. It says that the impression that the tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have a particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it. Further, the tweets are considered as having the tendency to undermine attitudes of people on which the justice administration rests (below); and that there is no manner of doubt that the tweet tends to shake the public confidence in the institution of judiciary. 

A century ago, the “clear and present danger” test enunciated by Justice Oliver Wendell Holmes of the US Supreme Court in his renowned dissent in Abrams vs. United States (1919) offered a modification of the “bad tendency” test that widened freedom of speech and narrowed restriction. Holmes argued that for any restriction on speech to be constitutional, the speech it prohibits must constitute a “clear and present danger” of an evil consequence. 

In my view, the “bad tendency” principle is unconstitutional.

The “clear and present danger” principle won only limited acceptance and co-existed with the “bad tendency” principle for several years. The “bad tendency” test was finally overturned by the US Supreme Court in Brandenburg v. Ohio (1969) and replaced by the “imminent lawless action” principle which refined and further developed the “clear and present danger” principle. Under the “imminent lawless action” principle, speech is restrained only where the speaker intends to incite by the speech an imminent and likely violation of the law. A mere tendency will not suffice. 

In my view, the “bad tendency” principle is unconstitutional. It hollows out our freedom of speech and expression under Article 19(1)(a) by setting an excessively broad and vague standard for prohibiting speech. 

Prashant Bhushan would not have ended in conviction had a Constitutionally compliant standard been used to define prohibited speech instead of the “bad tendency” test. 

To secure our freedom more effectively, we need to develop an alternative overarching principle that will protect free speech in all circumstances from State restriction, earning from tests used in other democracies. In his Abrams dissent, Justice Holmes explains the crucial importance of maintaining the broadest possible freedom of speech: 

“When men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

When the competition of ideas is suppressed using contempt power, or by other means, the truth is suppressed and the nation is blinded.

If the voyage of a nation (or of a vital institution such as the judiciary)  is to be charted safely through ever-dangerous waters, everyone must know the truth about where the dangerous rocks and whirlpools and sandbanks lie that can wreck the ship of nation  or institution, so that they may be avoided. The ship cannot be steered based on false information. Yet, in the words of Justice Holmes, “We have to wager our salvation upon some prophecy based upon imperfect knowledge”. 

So how do leaders and citizens of a nation ascertain the truth? Not from gods by divination. Not from astrologers.  Not from holy books. Or from priests. Or from oracles. Or from think tanks and smart people. Holmes says, the “best test of truth is the power of the thought to get itself accepted in the competition of the market [of ideas] and that truth is the only ground upon which ..the wishes of [men] safely can be carried out.” When the competition of ideas is suppressed using contempt power, or by other means, the truth is suppressed and the nation is blinded.

In re Prashant Bhushan will have a chilling effect on public and legal discourse essential for safeguarding and strengthening our judicial system. It reflects a mindset of an autocratic past that we must leave behind if we are to realize the Constitutional vision of a  true democracy where criticism and questioning of courts is an essential part of the ”the very foundation of constitutional democracy” rather than a crime. India and the judiciary will pay a heavy price if we accept the legally erroneous approach taken by the Court in In Re Prashant Bhushan restricting freedom of speech and expression.

(The author is Professor of Law. He is the former Director, National Judicial Academy and former Director of the National Law School of India University, Bengaluru.)