Prashant Bhushan Contempt Case: Why the Judges Should Be Guided by Their Past Judgments

In the past, Justice Arun Mishra’s approach to criticism of the court from the bar has interestingly shown the other side of his personality: not inclined to respond disproportionately, but display broad shoulders to bear even vociferous attacks on the institution with indifference.

Just three instances will suffice.

In R. Muthukrishnan v The Registrar General of the High Court of Judicature at Madras, he held that circumstances may be grim, but the autonomy of the bar in the disciplinary matters cannot be taken over by the courts. It has other more efficient tools to maintain the decorum of the court, he suggested. He wrote:

“In case power is given to the court, even if complaints lodged by a lawyer to the higher administrative authorities as to the behaviour of the Judges may be correct, then also he may be punished by initiating disciplinary proceedings as permitted to be done in impugned Rules 14 A to D that would be making the Bar too sycophant and fearful which would not be conducive for fair administration of justice.”

“ Fair criticism of judgment and its analysis is permissible. Lawyers’ fearlessness in court, independence, uprightness, honesty, equality are the virtues which cannot be sacrificed” he held and struck down Rules 14A to 14D as framed in May 2016 by the high court of Madras as ultra vires to Section 34 of the Advocates Act.

Also Read: Why Prashant Bhushan’s Trial for Contempt Should Be Declared a Mistrial

Although Justice Arun Mishra maintained that the misconduct of a lawyer as specified in the impugned Rule 14A may in appropriate cases tantamount to contempt of court, his observations in favour of the lawyers’ irreverence are in contrast with his approach to Prashant Bhushan’s two tweets.

In Rakesh Tiwari v Alok Pandey, the appellant-advocate was convicted for his “undesirable” conduct by the high court and sentenced to simple imprisonment of six months and a fine of Rs 2,000, and in case of non-payment of fine, to undergo simple imprisonment for a further period for 15 days. The high court had directed him not to enter the premises of the District Judgeship, Allahabad for a period of six months w.e.f. July 15, 2015 , and remain under the constant watch of the District Judge, Allahabad, for a period of two years.

Considering the nature of misconduct, while upholding the conviction for criminal contempt, Justice Mishra suspended the sentence of imprisonment for a period of three years, subject to his maintaining good and proper conduct with a condition that he shall not enter the premises of the District Judgeship, Allahabad for a further period of three years in addition to what he has undergone already. If these conditions are not violated, the sentence after three years shall be remitted, he held. In case the advocate is in breach of any of these conditions, the sentence of imprisonment may be activated by the court, he warned.

The point to be noted here is that Justice Mishra wanted to appear more magnanimous than the high court in diluting the sentence of the contemnor, even though he agreed that his conviction for contempt of court was correct.

What Justice Mishra held as CJ of Calcutta HC

As the chief justice of the Calcutta high court, Justice Arun Mishra, sitting with Justice Joymalya Bagchi, decided a suo motu contempt case against the chief minister of West Bengal, Mamata Banerjee on December 18, 2012.  In a speech she delivered on August 15, 2012, to celebrate the 75th anniversary of the West Bengal legislative assembly, she reportedly asked, “Why should judgment be delivered in exchange for money?” She further claimed that corruption had made inroads into the judiciary and democracy as a whole. “This is unfortunate. We may have won freedom, but not economic freedom,” she had said.

From the transcript of her speech, it was disclosed to the high court that she made the following imputation:

“Why will judgments be given only in favour of those who offer money?  I am sorry to say this; people can condemn me for this.  I can be arrested and put in jail for this, but somewhere I will have to express my opinion.  I have seen it myself that a number of judgments are purchased.  It was very unfortunate that corruption had become the main pillar from democracy to judiciary everywhere.  This is unfortunate.  The judiciary has the responsibility to deliver justice to people.”

The bench, in its judgment, authored by Justice Bagchi, said:

“…having read the transcription of the said speech and also having viewed the same from the CD submitted by the various parties, we find that the speech was a discussion on the issue of impact of money power and corruption in the functioning of the various institutions of the state. In the course of the said speech, Smt.Banerjee dwelt at length with the impact of money power, particularly use of black money in elections and criticised such practice.”

In Paragraph 16, the bench observed:

“Contempt proceedings should not be initiated at every irritant or pin prick.  Deference to judiciary cannot be secured by the scepter of contempt but is to be attained by the sublime quality of our judgment. Prior to invocation of such jurisdiction the Court must be prima facie satisfied that the alleged contumacious act was with the intention of denigrating the judiciary.”

The bench, in Paragraph 17, approvingly cited Lord Denning in Regina v Commissioner of Police of the Metropolis, ex parte Blackburn, as follows:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy.

Still less into political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.”

The bench then quoted approvingly former Chief Justice of India Gajendragadkar in Special Reference No.1 of 1964 thus:

“We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the Court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgment, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

In Paragraph 28 of the latest judgment convicting Prashant Bhushan for  contempt of court, Justice Arun Mishra heavily relied on certain paragraphs in the Supreme Court’s judgment in Baradakanta Mishra v Registrar of Orissa high court.

Interestingly, in the Mamata Banerjee case,  the bench presided by Justice Mishra used the relevant paragraph from Justice Krishna Iyer’s judgment in the same case to absolve Banerjee as follows:

“…if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife, must be above suspicion…”

In his August 14 judgment in the Prashant Bhushan case, Justice Arun Mishra chose to rely on Justice Krishna Iyer’s observations in Re:S.Mulgaokar to support his conclusion that Bhushan is guilty. Justice Arun Mishra acknowledges, however, in Paragraph 40, that these observations are important though the court “for different reasons”, did not decide to proceed against the alleged contemnor in that case.

In Paragraph 20 of the Calcutta high court judgment, the bench had observed:

“It is common knowledge that in today’s society there are discussions and/or deliberations in various quarters with regard to impairment of the efficacy of the judiciary due to prevailing corrupt practices. The imputation in question appears to fall in such genus. To react to each and every such criticism of judicial corruption would perhaps be counter productive as it may give an impression to the people at large that the judiciary is hyper-sensitive to such criticism or any adverse comment on the judiciary. A degree of wide latitude should be given not only to preserve the valuable fundamental freedom to free speech and expression but also but to bear in mind that in a democratic republic any institution, more particularly the judiciary cannot be construed to be ‘cloistered virtue’.”

In Paragraph 22, it held:

“We must therefore test the imputations in question in the backdrop of the entire speech to satisfy ourselves as to whether contempt proceedings ought to be initiated. The speech essentially deals with the impact of corruption on the role of various institutions including judiciary. It does not appear to be prompted by the desire to denigrate the institution in the eyes of society. It is the nature of an exasperated lament of the speaker to her perceived erosion of morals in every public institution before an august gathering of legislators and other dignitaries in a seminar organized by West Bengal Legislative Assembly. Under such circumstances, to call upon the speaker to explain as to whether she had any mala fide intention of denigrating the judiciary, when no such intention ex facie appears from a plain reading of the transcript of her entire speech, would amount to a fishing and roving enquiry which we are unwilling to embark upon.”

In Paragraph 26 of the high court judgment, the bench approvingly cited the Supreme Court’s judgment in P.N.Duda v P.Shiv Shankar (1988). In this case, the apex court declined to initiate contempt proceedings against P. Shiv Shankar, the then Union law minister, in spite of his allegedly intemperate utterances in a speech delivered at a seminar on ‘Accountability of the Legislature, Executive and Judiciary under the Constitution of India’ holding:

“….though there are passages in the speech which, torn out of context, may be liable to be misunderstood, but, reading the speech as a whole and bearing in mind the select audience to which it was addressed it must be held that no contempt has been committed by respondent No.1…”

Ironically, in Paragraph 44 of the Prashant Bhushan judgment, Justice Mishra cited observations in the same case to buttress his conclusion that Bhushan is guilty of contempt.

Also Read: In Finding Prashant Bhushan Guilty of Contempt, the SC’s Reasoning is Hardly Convincing

Interestingly, the Chief Justice Arun Mishra bench of the Calcutta HC had observed that Banerjee’s imputations were neither moderate nor couched in temperate language, although the same in the contextual matter might not constitute an act of criminal contempt.

One wonders why he has not given a similar benefit of doubt to Prashant Bhushan’s two tweets, especially after he explained them in his reply affidavit. During the sentencing hearing in Re: Prashant Bhushan, Bhushan’s counsel drew the bench’s attention to this Calcutta high court judgment.

What Justice B.R. Gavai ruled as a high court judge 

In Prashant Bansilal Bamb v Nand Lal and Others, which Justice Gavai decided as a single judge on January 22, 2008, two officials of the state election commission were held guilty under Article 215 and section 2(b) of the Contempt of Courts Act.

In this case, the Maharashtra state election commission issued an order prescribing reservation of seats in the electoral divisions of Aurangabad district for Zilla Parishad general elections, 2007. It was challenged as not in accordance with the provisions of the Maharashtra Zilla Parishads and Panchayat Samitis (Manner and Rotation of Reservation of Seats) Rules, 1996. The petitioner sought rotation of seats. The state EC argued that the 1996 rules would be applicable only in the subsequent elections and not in 2007.

The high court directed the commission to allot the reservation by observing the rotation policy in its letter and spirit. While the high court had stayed it for a period of four weeks, the Supreme Court continued the stay for two more weeks. However, the State Election Commission, during the stay period, published the election programme for zilla parishads and panchayat samitis, ignoring the high court’s direction.

The court had proceeded against the assistant commissioner of the State Election Commission, taking into consideration the fact that he had neither admitted his mistake, nor tendered his unconditional apology. The official did not remain present in court in response to the notice issued to him.

Justice Gavai, relying on the Supreme Court’s decision in T.N. Godavarman v Ashok Khot, refused to accept the belated unconditional apology of the official after the framing of charges.

In Para 65, Justice Gavai observed:

“The court could have taken a serious view of the matter and considered sentencing the respondent No.1 to suffer imprisonment or to pay fine. However, it is to be noted that the contempt jurisdiction is not a vindictive jurisdiction. Respondent No.1 has an unblemished record of 35 years of service in the IAS cadre. It is also not in dispute that there is no stigma to his long career. He is 62 years of age. In that view of the matter, I am not inclined to pass an order of imposing sentence against present respondent No.1. However, I find that the act of the respondent No.1 is clearly in contempt of the orders passed by this court. As such, I am inclined to issue admonition to the respondent No.1 for having committed contempt of this court.”

In Pranjali v State of Maharashtra, the division bench of the high court presided by Justice Gavai had directed the Director of Technical Education, who was a member of the Admission Monitoring Committee, (a Tribunal) to approve the admission of the petitioner in the peculiar facts and circumstances. Notice was issued to the chairman and the two members of the committee to show cause why action for disobeying the order of the high court be not initiated against them. One of the members of the committee was a former judge of the high court.

The bench, however, accepted the apology tendered by the contempt-accused observing thus: “Majesty of law is supreme. However, at the same time, majesty of law lies not in punishing someone in contempt but for forgiving him.”

In the first case, Justice Gavai came close to sentencing the contemnor, clearly dissatisfied with his apology. Yet, he refrained from sentencing him by merely admonishing, even though he found him guilty. In the second, he was about to punish the former judge of the high court, just to send a message that law is common to everyone. In the end, however, he accepted the apology tendered by the contemnors, and discharged them.

Also Read: The Prashant Bhushan Contempt Case is About Power and Politics, Not Law

Justice Krishna Murari’s high threshold

In Sajal Kumar Singh v Surya Bali Singh and Others, decided on September 18, 2013, Justice Krishna Murari as a single judge of the Allahabad high court held that contempt of court is essentially a matter which concerns the administration of justice and the dignity and authority of courts and judicial tribunals. He held:

“It is not a right of a party to be invoked for the redress of his grievances. When the matter relates to mere infringement of an order, as between parties, it is clearly inexpedient to invoke and exercise contempt jurisdiction as a mode of executing the order, merely because other remedies may take time or are more circumlocutory in character. Contempt jurisdiction should be reserved for what essentially brings the administration of justice into contempt or unduly weakens it.”

In this case, the court held that an application under Section 12 of the Contempt of Courts Act, 1971, for alleged violation of a temporary injunction granted by the civil court is not liable to be entertained under the contempt jurisdiction and accordingly, the court dismissed it.

In view of the high threshold insisted by Justice Murari for entertaining petitions for invoking Contempt of Courts Act, 1971, it may be asked whether the bench was correct in rushing to convict Prashant Bhushan and sentence him without even a finding on how his tweets have unduly ‘weakened’ the administration of justice or brought it into contempt.