People watching the working of Indian courts have seen its functioning criticised numerous times, with varied consequences. A former judge of the Supreme Court was hauled up for contempt on account of his criticism of a judgment and an off-handed remark about the capacity of the judge. In 2018, we saw four judges of the Supreme Court holding a press conference, which many thought had lowered the majesty of the courts. But apart from articles in the media, nothing much was done about it. Not that judges of higher courts do not commit contempt, but the constitution and contempt laws have generally been interpreted to mean they cannot be proceeded against (notwithstanding the exception made for Justice Karnan, which itself was controversial).
In 1984, an unfortunate incident happened in Patna high court when a judge allegedly said uncharitable things to a lawyer. A contempt petition was filed on behalf of the lawyer (who, incidentally, became a high court judge later). A larger bench was constituted and it was held that since the petition was filed without the consent of the advocate general, it was not maintainable. The bench also said the constitutional scheme and the Contempt of Courts Act did not provide for contempt proceeding against judges.
Once it has been held that judges cannot be proceeded against in contempt for having done any act defined under section 2(c) of the Act, then even the fact that they might have accepted a false affidavit which has the potential of subverting justice goes unnoticed.
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I do not have more than a nodding acquaintance with Prashant Bhushan, but he has always asserted his opinion on things he thinks matter – like the politics and politicians and policies of of the day, the manner some judges have conducted themselves and how cases have been decided one way or the other. If I am not mistaken, he had also tweeted on the propriety of political big wigs attending the function held for a baby born to a relative of one of the judges who convicted Prashant Bhushan.
Most people take law, order and justice for granted like the protagonist of The Trial by Franz Kafka and some face a similar fate in court when they have to fight intangible charges and encounter invisible law and frustrations of inevitability. Like Kafka’s character, they are made to realise that protests of innocence are themselves interpreted as an admission of guilt.
When one reads the Supreme Court’s judgment in the Bhushan case one finds the bench has held that in the motorcycle tweet, the first part was a criticism of the Chief Justice of India in his personal capacity and thus not contempt, but the second part was misleading and hence objectionable. As for the second tweet, it held that it would not go into the truth of the first part of Bhushan’s claim (of there being an undeclared emergency) because it would “bring in politics” but the effect of the tweet was that it had damaged confidence in our judicial system and demoralised judges.
While I will address the importance of truth further down, the court’s reasoning has raised a lot of ire and debate in civil society because many are wondering whether Bhushan was convicted on account of his entire body of tweets and not these two alone. In other words, the verdict he received seems akin to winning the Nobel prize – which is given to a scientist or writer for the entire body of her work and not just for one or two elements. Except, of course, that in the case of the Nobel, the broader evaluation is permissible and there is a proper assessment, whereas here Bhushan’s wider work was not the subject of any formal adjudication. And of course, there are laurels which accompany the Nobel whereas here there is only condemnation.
I can state with some authority that every court comes with its own complement of lawyers and judges whom many think do not conduct themselves as they should. Unseemly things do happen but people move on because the majesty of law is too great for an individual to be able to endanger. Unfortunately, arguments are advanced on either side about the need for ‘an iron hand’ or ‘broad shoulders’, throwing up imagery of a strong load-bearing male, on the lines of Atlas holding the weight of the earth. This imagery contradicts the female figure of justice balancing the scales with sobriety, calmness, maturity – virtues which are gender neutral.
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People mistakenly believe it is easy for a court to haul someone up for contempt and hold him or her guilty. In fact, the procedure mandates a very diligent exercise. For example, criminal contempt can only be initiated on the certification of the highest government counsel of the Centre or state. Section 9 bars one from implying anything unless it is specifically punishable under the Contempt Act. Section 13 lays down another test at the stage of punishment – that the act so committed must be substantially in the nature of obstruction or interference.
Another important clause here is that truth is a valid defence. Before I come to the merits of the Bhushan case, truth per se, as far as I understand the Indian judicial system, is never a subject of adjudication. This is because in our system, a judge rules not on the truth or otherwise of the matter but only on the ability of the party to have established its case, which may or not be true. Truth is not within the ambit of adjudication.
In criminal law, truth as a defence can be pleaded in cases of defamation. For example, the first exception to Section 499 of the IPC (which penalises defamation) is “imputation of truth which public good requires to be made or published”. It further elaborates that whether or not it is for the public good is a question of fact.
Now look at Section 13 of the Contempt of Courts Act to which clauses (a) and (b) were added in 2006. Clause (b), in line with Section 499 IPC, permits truth as a valid defence if it is in public interest and is bona fide. Here, public interest and bona fides – being a question of fact – have to be gone into but only after truthfulness is established. This requirement cannot be brushed aside lightly. The party concerned must be given a reasonable opportunity to establish the truthfulness of his act or words or publication or tweet – whatever it may be – as well as the public interest and bona fides involved.
In its judgment, the Bhushan bench says it did not want to go into the truthfulness or otherwise of one part of the tweet because it did not want to make it ‘political’, yet it ruled that the tweet undermined the dignity of the court without adjudicating either the truth, public interest or bonafides of what Bhushan had tweeted. When the Contempt Act excludes truth as contemptuous and permits its pleading as a defence, and bars construction, can the court assume truth and nail the man? It is like the saying, ‘give a dog a bad name and hang him’.
It is also important to remember that judges are not the sole guardian angels of the reputation of courts, nor are they single handedly responsible for upholding the majesty of law. The identity of judges as individuals is not interchangeable with the institution. In fact, all persons involved in the working of the courts such as lawyers, staff from top to bottom, constantly work towards the same goal of maintaining the absolute integrity and sanctity of the courts – conscious that their identity is interlinked with the courts and if it collapses so do they. This effort must be unselfishly given due recognition.
Anjana Prakash is a former judge of the Patna high court and practices in the Supreme Court