Free speech vs contempt of court

Freedom of speech is the anti-thesis of contempt of court. And the father-son duo of Shanti and Prashant Bhushan know this very well. This is not the first time that Prashant Bhushan has received a notice for committing alleged contempt of court after he voiced his opinion in the media about ongoing proceedings in court. This time, the contempt proceedings against Bhushan will result in dos and donts for lawyers appearing in ongoing cases.

Prashant Bhushan’s latest imbroglio is alleging the Modi government misled the Supreme Court by fabricating documents to validate M Nageswara Rao being appointed as an interim CBI director while the matter was still being argued in court. Bhushan targeted attorney general K K Venugopal who got the apex court to invoke their contempt powers to ensure Bhushan knows when to speak and when not to.

The definition of criminal contempt of court is wide enough to encapsulate even allegations against the government because section 2 (c) of the Contempt of Courts Act, 1971, lays down that publishing material which scandalises or tends to scandalise, or lowers or tends to lower the authority of any court or even prejudices, obstructs or tends to interfere with any judicial proceeding or the administration of justice in any manner constitutes criminal contempt of court.

This is a brahmastra where the judge acts as complainant, prosecutor and judge all rolled into one. The Indian judiciary sometimes prevents the media from reporting trials in open court which is impossible in democracies like the USA where even media trials are allowed. Many jurists opine the judiciary should take criticism in its stride because it is the only state organ which is selected in secrecy and not elected.

Judges are trained to weigh evidence produced inside the court and disregard everything else including unfavourable public opinion which should not be a factor while convicting or acquitting a person. But the bench led by Justice Arun Mishra thinks otherwise because the judge stated the time has come to reign in lawyers who make disparaging tweets outside the court room about matters in which they appear.

Venugopal told the bench that “Bhushan deliberately intended to cast aspersions on his (Venugopal’s) integrity and honesty.” This provoked the bench to remark that “some members of the bar carry daggers to kill the judiciary.”

All criticism of the judiciary was blacked out from 1987 to 2003 because a bench of the Bombay high court pronounced that truth could not be raised as a defence after the court issued a notice for alleged contempt to a renowned Marathi editor, Madhav Gadkari in 1987.

He wrote in Lok Satta in 1987 that a certain judge of the Bombay high court was so enamoured by a woman advocate that he allegedly passed orders in her favour without dissecting the merits of the case. So much so, that he overruled his earlier judgment as a single judge when he sat on a division bench in appeal.

Gadkari caused a sensation by giving another instance of a judge who wore hearing aids but took them off when he grew tired of hearing arguments. In a third instance, the editor alleged that touts in the motor accidents claims tribunal shared their booty got from clients with the judges and lawyers. An advocate of the high court, V M Kanade initiated a contempt plea against Gadkari who appointed Ram Jethmalani as his lawyer. Much later, Kanade was elevated as a high court judge himself.

When Jethmalani offered to prove the veracity of these allegations, successive benches recused from hearing the contempt plea until a bench headed by the late R M Jahagirdar laid down that truth could not be raised as a defence to further scandalise the court, thereby nullifying the national motto of satyameva jayate which means truth alone triumphs.

Truth may not have triumphed when some judges of the Karnataka high court were alleged to have run up a huge bill at a guest house in 2002 with some women advocates living with them. This came to be known as the Karnataka sex scandal which ended with a three-judge probe declaring the scandal was concocted by the media as a result of which 14 newspapers had to apologise.

In 2017, the former CJI Dipak Misra said, “Prashant Bhushan is not worthy of contempt” when the latter accused the judge of not allowing him to speak in a matter involving a senior judge of the Orissa high court, I M Quddusi, who allegedly acted as a conduit for bribes to allow medical colleges without infrastructure to admit students, contravening a decision of the apex court.

And in 2010, former law minister Shanti Bhushan came to his son’s rescue in a contempt case when he named eight of 16 CJIs as being “definitely corrupt” while six others were “definitely honest” and no definite opinion could be made of two others.

“The judiciary has adopted the policy of sweeping all allegations of judicial corruption under the carpet in the belief that such allegations might tarnish the image of the judiciary. It does not realise that this policy has played a big role in increasing judicial corruption,” Bhushan declared in his affidavit.

The law states that contempt should rarely be used to silence all critics because the majesty of the courts does not take notice of trifles. It is no doubt true that reckless activists make even more reckless allegations against sitting judges who cannot defend themselves. However, it has been reiterated that the contempt weapon is not meant to uphold the dignity of individual judges but to ensure the people do not lose faith in the judiciary.

This is why the right to a fair trial of an accused is cited as an excuse to issue contempt notices or pass orders preventing the media from reporting sensational trials like the Sohrabuddin fake encounter case. More often than not, there is a miscarriage of justice when policemen and politicians are acquitted for lack of evidence. But evidence can be furnished by the media like the Sohrabuddin case which came to light only because a doughty Gujarati journalist who could have been examined in court, first published the story.

Olav Albuquerque holds a PhD in law and is a lawyer-cum-journalist of the Bombay high court.

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