Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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The Supreme Court of India initiated suo moto contempt proceedings against public interest lawyer and activist Prashant Bhushan, based on two tweets posted by him on social media platform Twitter. The tweets, one of which was a comment on the Chief Justice of India riding an expensive Harley-Davidson motorcycle belonging to a ruling party leader, and the other, a critique on the Supreme Court’s role in destroying democracy in India, were viewed by the Court as a ’malicious, scurrilous, calculated attack’ on the institution of administration of justice. The Supreme Court declared that the tweets had the ‘effect of destabilizing the very foundation of [this] important pillar of Indian democracy’ and held Prashant Bhushan guilty of contempt of court. In response to a nationwide criticism of the judiciary’s attempt to thwart free speech, the Court handed down a symbolic punishment sentencing him with a nominal fine of Re. 1 (rupee 1).
The contemnor, Prashant Bhushan, is a senior advocate with more than three decades of experience pursuing public interest litigation in several high profile cases. On July 22, 2020, a petition was filed against him and Twitter Inc. before the Supreme Court of India, bringing to the Court’s notice two tweets published by Prashant Bhushan. The alleged tweets, made against the Chief Justice of India (CJI) and the Supreme Court, highlighted a declining trend of the independence of the judiciary and the Court’s role in protecting Indian democracy. The tweets were eventually blocked by Twitter. They are quoted below:
First Tweet (June 22, 2020): “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice!”
Second Tweet (June 27, 2020): “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
By an order dated July 22, 2020, the Court registered suo moto contempt proceedings against Prashant Bhushan, arguing that the tweets “brought the administration of justice into disrepute and [were] capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large.”[p. 3]
During the course of proceedings, Prashant Bhushan clarified that the initial tweet was made to express his anguish on the incongruity between CJI’s reckless attitude in riding a motorcycle without wearing a mask while at the same time restraining the SC from functioning physically and hearing cases during the period of lockdown on account of COVID-19. He also submitted that the contempt proceedings were an attempt to stifle free speech and violative of fundamental rights under Art. 19(1)(a) of the Constitution of India. On the second tweet, Prashant Bhushan argued that it was a bonafide expression of his opinion on the Court’s (and past four CJIs) role in impairing democratic ideals in the last six years (since the ruling BJP party came to power), which cannot constitute contempt – being a protected freedom under the Indian Constitution.
As per well-settled conventions of the Supreme Court of India, CJI is the ‘Master of the Roster’, having the privilege to assign cases to the judges. In the past, the exercise of this authority has increasingly been called into question, along with its use by CJIs to allow the spread of authoritarianism, majoritarianism and stifling of dissent in the country. Given that context, Prashant Bhushan claimed that raising such questions that concern the manner in which CJIs conduct themselves in individual capacities does not amount to scandalising the Court itself. Consequently, the tweets cannot be said to interfere with the due course of justice or the proper administration of law by the Court. ‘To criticize the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy’. [p. 13]
After adjudicating Prashant Bhushan guilty of contempt (see Decision Overview below), by an order dated August 20, the Court asked him to submit an unconditional apology. Upon refusal, however, the Court by an order dated August 31, 2020 sentenced him with a symbolic fine of INR 1, failing which the contemnor would undergo a simple imprisonment for a period of three months and be debarred from practising in the Supreme Court for a period of three years.
The three-judge bench was presided by Justice Arun Mishra, Justice B.R. Gawai and Justice Krishna Murari. The principle question before the Supreme Court was whether the tweets published by Prashant Bhushan were entitled to protection under Article 19(1) of the Constitution as a ‘fair criticism’ of the system, made in good faith in the larger public interest or not.
Article 19(1) of the Constitution of India grants a fundamental right to freedom of expression, but is subject to reasonable restrictions under Article 19(2).
Under the Indian Contempt of Courts Act, 1971, any attempt which does or tends to scandalize, lower, prejudice, interfere or obstruct the administration of justice is regarded as a ‘criminal contempt’. By virtue of Article 215 and 129 of the Constitution of India, the High Courts and Supreme Court have an inherent power to engage in ‘judicial self-dealing’ as a constitutional right, thus enabling the Courts to initiate contempt suo moto. This power is vested in Courts to uphold its authority and prevent impairment of a sense of confidence which people have in the administration of justice.
Notably, the Court initially began by positing a clear correlation between remarks affecting strict performance of duties of judges’ and their ability to hinder the administration of justice. By delving into past precedents, it noted that such insinuations (as in the present case) implicitly derogated dignity of the Court and amounted to undermining confidence of the people in the integrity of judges. By doing so, the Court inevitably equated criticism towards judges as criticism of the Court – rejecting Prashant Bhushan’s argument that comments on the conduct of judges in their individual capacities do not affect the administration of justice adversely.
The Court, however, sought to draw an important distinction. It observed that while vilification of a judge as a judge deserves contempt, a vilification of the judge as an individual does not – the judges in such cases are left to resort to private remedies. Essentially, it relied on six considerations propounded by Justice V.R. Krishna Iyer in Re: S. Mulgaokar, (1978) 3 SCC 339 to adjudicate contempt cases: (i) wise economy of the use of contempt power by the Court, (ii) harmonising constitutional values of free criticism and the need for fearless curial process, (iii) separating personal protection of libelled judge and community confidence in the prevention of the obstruction of justice, (iv) discretionary exercise of authority, (v) not being hypersensitive even when criticisms overstep limits and (vi) declaring contempt in cases of malicious, scurrilous, intimidatory or offensive remarks beyond condonable limits.
Given the multifold tests propounded by Justice V.R. Iyer, the Court then delved into an analysis of the tweets. Remarkably, it dissected them into various segments, observing that the first part of the first tweet (‘CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet’) was a personal criticism against the CJI as an individual. However, the second part of the first tweet (‘at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice’) was an ‘undisputed’ attack on CJI in his capacity as administrative head of the judiciary. The Court concluded that Prashant Bhushan’s initial tweet gave the impression that the CJI as the head of the Indian judiciary had kept the Supreme Court in lockdown mode, thereby denying citizens their fundamental right to access justice. [p. 95]
It is important to note that the Court observed numerous flaws with the factual accuracy of the first tweet. While physically non-functional, the Court was functioning through video conferencing tools and discharging their duties during the period of impugned tweets. Given that context, a ‘patently false’ and ‘wild allegation’ about the CJI had the tendency to shake the confidence of the public in the institution of the judiciary as well as undermine the authority and administration of justice, according to the Court. As a result, the Court also rejected Prashant Bhushan’s claim of bona fide criticism on account of his anguish of the physical non-functioning of the courts.
On the second tweet, the Court made three observations. First, Prashant Bhushan’s comment that the Supreme Court had played a substantial role in allowing the destruction of democracy and the role of past four CJIs in perpetuating it was a direct criticism of the institution of the Supreme Court and the institution of CJI. [p. 100] Second, given the huge extent of the reach of the tweet and the character of the contemnor (who is a lawyer himself), the Court concluded that Prashant Bhushan behaved irresponsibly and thus, the tweets were not eligible for good faith protection. Third, it was also not a fair criticism of the functioning of the judiciary made in bona fide in the public interest, rendering it ineligible for protection under the Article 19(1) freedom of expression rule.
Combined, the tweets had an effect of dissuading an ordinary litigant and risked losing confidence in the Supreme Court and CJI. The Court also believed that if it failed to protect itself from malicious insinuations such as the present case, it may open floodgates of similar attacks on other judges. In effect, preventing malicious attacks was a question of national honour and prestige in the comity of nations and required to be managed with with a degree of firmness. [p. 105] The Supreme Court found Prashant Bhushan guilty of having committed contempt of the Court.
With respect to Twitter’s involvement in the contempt proceedings, the Court discharged the social media platform as an intermediary, also taking cognizance of its action in suspending the tweets in July upon the Court’s notice. A number of activists said the company set a dangerous precedent that could apply to similar future accusations of defamation. In a statement, Twitter said it was committed to protecting free expression in India and around the world.
After an adjudication by the Court dated August 14, 2020 whereby the Court found Prashant Bhushan guilty of contempt, Prashant Bhushan approached the Court to invalidate the proceedings on procedural grounds (claiming that a copy of the complaint on the basis of which the suo motu notice was issued was not served on him). He also contested the decision on other grounds: vagueness (on account of inconsistency with various other decisions of the Court on the issue), free speech, truth (as a defence), principle of proportionality (tilting balance in favour of rights as against restrictions) and an attempt to coerce him into rendering an apology (by an order dated August 20, 2020, the Court had asked Prashant Bhushan to submit an unconditional apology, if he so desired).
Given the widespread public debate that ensued following the Supreme Court’s judgment, in the sentencing order dated August 31, 2020, the Court adjudicated on some of the aforementioned arguments. It declared that scandalising the Supreme Court was an abuse of freedom of speech. While fair criticism was a permissible defence, it was subject to reasonable restrictions under Article 19(2) on account of public interest. Among other things, the Court noted that criticism of the judiciary was not protected under Article 19(1)(a) of the Constitution and amounted to contempt. In cases when there was a conflict between freedom of expression and maintenance of respect for judicial independence, one could not prevail over the other.
Ultimately, the Court declared: “while it was not possible to control the thinking process and words operating in the mind of one individual, when it came to expression, it has to be within the constitutional limits [p. 73]… no doubt that while exercising the right of freedom of speech the fair criticism of the system is welcome and the judges cannot be hyper sensitive even when distortions and criticism overstep the limit. However, the same cannot be stretched to permit malicious and scandalous statements…Other grounds raised by the contemnor were also rejected for similar reasons.” [p. 77]
Accordingly, Prashant Bhushan was sentenced with a nominal fine of INR 1 instead of a severe punishment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Indian jurisprudence on contempt lays down a number of considerations which the Court has to consider: free market of ideas, fair criticism in good faith when it is in the public interest, the surrounding circumstances, the person who is making the comments, his knowledge in the field regarding which the comments are made and the intended purpose. Accordingly, the Court has to exercise jurisdiction with great care and caution and only in cases that are clear beyond reasonable doubt exercise contempt jurisdiction.
As observed in the case, to criticize the judge fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a democracy. Where freedom of expression, fairly exercised, subserves public interest in reasonable measure, public justice cannot gag it or manacle it. [p. 70] Free people are the ultimate guarantors of fearless justice.
The judgment of the Supreme Court, therefore, grossly undermines freedom of expression. It comes at a time when Indian authorities have increasingly resorted to the use of criminal laws against dissenters, protesters, activists and students on grounds of terrorism, sedition and defamation. The case also follows a historic 2018 open letter by four judges of Supreme Court which openly expressed concerns about the functioning of the Supreme Court.
Alarmingly, the decision is a sequel to another seven-judge bench judgment of the Supreme Court where a serving judge was declared guilty of contempt and sentenced to six months in jail. In that case, Justice CS Karnan’s had alleged several claims of caste discrimination and rampant corruption in the judiciary. The Supreme Court imposed prior restraint prohibiting media from carrying any statements made by him.
Irrespective, the Supreme Court’s verdict in this case solicited widespread criticism across various sectors of civil society. Thousands of former judges, retired bureaucrats, journalists, and lawyers signed a statement calling the judgment a disproportionate response’ resulting in a ‘chilling effect’ on free speech rights. Over 1,800 lawyers signed a statement challenging the decision of the Court and called on the Court to stall the enforcement of the judgment unless criminal contempt standards were reviewed by a larger bench. Several rights groups and opposition leaders also criticized the judgment, calling the contempt law a ‘colonial legacy’ in need of reform.
The verdict also sets a dangerous precedent and will continue to pose a threat to freedom of expression in the future. The idea that the judiciary’s integrity is derived from, and maintained by public perception towards it, will also act as a serious impediment to dissent in subsequent years.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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