Much has already been written about the suo motu contempt proceedings initiated against lawyer Prashant Bhushan, which culminated in the Supreme Court holding him guilty of contempt on August 14.
The 108-page long judgment has been widely criticised for its intended as well as unintended effect on free speech which the authors do not seek to reiterate. However, few scholars have managed to analyse the legal reasoning behind the judgement on account of the apex court’s failure (more worryingly, the absence of an attempt) to examine the defence raised by Bhushan in his extensive affidavit in reply.
However, in the sentencing hearing that took place on August 20, the court gave an explanation for this. During the hearing, Rajeev Dhavan, appearing for Bhushan, argued that the court had failed to take Bhushan’s affidavit into account in its judgment. In reply to this contention, Justice Mishra replied that this was because Dushyant Dave, counsel for Bhushan, had argued other points.
Source: Bar and Bench
Justice Gavai went a step further and stated that Dave had referred to only some portions of the affidavit which were taken into account in the judgment (a plain reading of the judgment shows that even the first 40 pages of the affidavit were not considered), giving the impression that the remaining portions of the affidavit were not taken into account as they were not orally argued before the bench.
Source: Bar and Bench
Consider the implications of this statement: The Supreme Court, in a suo motu contempt proceeding, did not take the affidavit in reply of the contemnor into consideration while holding him guilty of criminal contempt because the defendant’s counsel did not read the entire affidavit in open court.
The court’s failure to consider Bhushan’s entire reply is contrary to the law laid down by the Supreme Court in previous contempt cases.
Also read: Prashant Bhushan Contempt Case: Why the Judges Should Be Guided by Their Past Judgments
Power and procedure in contempt cases: Is there no difference?
The power to punish for contempt flows from Article 129 of the constitution. As referenced in the judgment, the said power cannot be curtailed by the Contempt of Courts Act, 1971, however the Act lays down the procedure to be followed.
“18…. Section 15 is not the source of the power to issue notice for contempt. It only provides the procedure in which such contempt is to be initiated…. 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….”
Under the Act, Section 17 provides for the procedure to be followed after the court takes cognisance of contempt, while subsection 5 thereof provides:,
“Any person charged with contempt under Section 15 may file an affidavit in support of his defence, and the court may determine the matter of the charge either on the affidavits filed or after taking such further evidence as may be necessary, and pass such order as the justice of the case requires.”
Thus, after the court issues notice of criminal contempt to any person, it has to examine the matter either based on the affidavit in reply or after taking such further evidence as may be necessary. This section is just an elaboration of the principles of natural justice, which the court is bound to uphold, as every accused must have a chance to defend themselves, and the court is bound to give a fair consideration to this defence.
Also read: Prashant Bhushan Sentencing: SC Reserves Judgment, Asks ‘What Is Wrong in Seeking Apology?’
In the present case, the court did not deem it necessary to consider further evidence, but seemingly did not even deem it necessary to consider the entire defence of Bhushan before holding him in contempt!
Burden of proof
Let us divert our attention to the question of burden of proof in contempt cases. In Mrityunjoy Das & Another v. Sayed Rahman & Others (2001) 3 SCC 739 Para 14, the Supreme Court had held that,
“The common English phrase “he who asserts must prove” has its due application in the matter of proof of allegations said to be constituting the act of contempt. As regards the “standard of proof”, be it noted that a proceeding under the extraordinary jurisdiction of the court in terms of the provisions of the Contempt of Courts Act is quasi-criminal, and as such the proof required is that of criminal proceeding and the breach shall have to be established beyond reasonable doubt.”
In the present matter, the Supreme Court took suo motu notice of Bhushan’s tweets, so it was purely between the court and Bhushan. Surely the burden was on the court to show beyond reasonable doubt why Bhushan is being held in criminal contempt. This burden cannot be discharged without rebutting the reply furnished by the defendant, or at least providing an explanation as to why the justifications given by him were unacceptable.
Another point to consider is that while Section 19 of the Act provides for a right to appeal against decisions of the high court, no such appeal is available from an order of the Supreme Court, so naturally, the Supreme Court should be extremely careful in using its “iron hand” in the first instance.
Also read: Why Prashant Bhushan’s Trial for Contempt Should Be Declared a Mistrial
Defence of truth
Let us also consider one of the main defences available to a person in a contempt case: the defence of truth. The same is available under Section 13 of the Act as amended in 2006. This defence has also been read into Articles 129 and 215 of the constitution by the Supreme Court in Indirect Tax Practitioners’ Association v. R.K. Jain, (2010) 8 SCC 281, wherein it held:
“In our view, if a speech or article, editorial, etc. contains something which appears to be contemptuous and this Court or the High Court is called upon to initiate proceedings under the Act and Articles 129 and 215 of the Constitution, the truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice.”
This view was quoted with approval by a constitution bench in Subramaniam Swamy v. Arun Shourie, (2014) 12 SCC 344.
Time and again, the Supreme Court has held that truth is a valid defence in contempt cases, and the burden is on the person alleging contempt to show that the explanation of the alleged contemnor is incorrect. Since the present case was a suo motu petition, the burden of proving that the explanation of Bhushan was unsustainable in law was on the court, and only after a detailed examination of the reply could such a burden be discharged.
Instead of examining the affidavit, the Court held that (Para 71), “We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate.”
The opportunity to file a reply was also given to Justice C.S. Karnan when suo motu cognisance of contempt was taken against him (2017 SCC Online 703, para 42). Only after Justice Karnan refused to file any response, did the court continue with the proceedings presuming he had nothing to say in his defence and then convicted him of contempt.
In the present case, the court allowed Bhushan to file his affidavit in reply justifying his tweets, in accordance with the principles of natural justice, however, it chose to not examine the contents thereof (professedly because Bhushan’s counsel failed to read the entire affidavit before the court) and proceeded to hold Bhushan guilty of contempt, thus ensuring that the spirit of the principles of natural justice were thrown out the window.
Even in Re Vijay Kurle & Ors.. 2020 SCC Online 407, a case on which the court heavily relies on in the judgment, the Supreme Court had considered the defendant’s defence of truth, it held that:
“Though not so much in the oral arguments but in the written arguments the alleged contemnors have also raised the plea of truth as a defence. Truth as a defence is available to any person charged with contempt of Court. However, on going through all the written arguments and the pleadings, other than saying that the Judges had misinterpreted the judgments of this Court or had ignored them or that Justice R.F. Nariman was biased, there is no material placed on record to support this defence.”
The defence was refused only after the court examined the entire written arguments and pleadings, an exercise which has evidently not carried up by the court in the present case.
The most basic understanding of established law in India is that the pleadings in a case are the written pleadings, and the oral pleadings are based on the written pleadings.
A counsel chooses to argue the points which she thinks are most relevant from the written pleadings, but does that mean that the court can disregard written pleadings in its entirety if the counsel chooses not to read the entire written pleadings in open court?
In this case, the court shifted the entire burden of proof on to Bhushan to defend his alleged contemporaneous tweets, and then passed a judgment without considering the defence presented by him. No matter what one thinks of Bhushan’s tweets, the court had the responsibility to ensure that due process of law was followed before holding him in criminal contempt, and as can be seen from the judgment and explanation furnished by the judges in open court, the court seemingly forgot its responsibility in order to hastily convict him.
Pranav Narsaria is a lawyer practicing in Mumbai. Vishal Sinha Pranav is an advocate practicing before the Supreme Court of India.