Prashant Bhushan on Contempt, Constructive Criticism and Nuisance

Prashant Bhushan on Contempt, Constructive Criticism and Nuisance

The Author, Adv. Ms.Himanjali Gautam is an Advocate under the Supreme Court of India, Founding-Partner at the Chambers of Himanjali Gautam, Ex-President at Law Centre 2, Faculty of Law DU, Columnist, Public Speaker, and a media Personality

From the eyes of a budding lawyer, working with senior advocates, I have witnessed several instances where there have been clashes between the judges and the advocates for several reasons. I observed that all these actions time and again have been given a blind eye to when done by someone on a high pedestal in the profession.  Does it mean all the senior advocates can get away with such behaviour towards the Court? There are also instances where small mistakes in the Courtroom have been held as grave mistakes, such differences in reactions to similar incidents, definitely cannot be overlooked. Decorum must be maintained whatsoever and it cannot be compromised upon. Law is a noble profession and the advocates are the torch bearers of change since time immemorial. In order to bring the change in the society, lawyers had a major role to play, be it in the freedom movement or the revolutionary movements. Recent behaviour from senior advocates who represent the bar attracting contempt charges is a matter of shame. Precedence should be set to ensure strict discipline in the courtroom towards senior advocates so that the public does not lose faith in the judiciary.

A bare reading of Article 129 clearly shows that the Supreme Court, being a Court of Record shall have all the powers of such a Court of Record including the power to punish for contempt of itself. This is a constitutional power which cannot be taken away or in any manner abridged by statute.

I was shocked when I saw the viral visual of a senior advocate smoking hookah during a virtual hearing. I got more disappointed when none of the prominent members of the bar, who otherwise are very vocal on different issues did not condemn this act. The question which crossed my mind was what if there had been any junior member of the bar or me in place of Dr Rajiv Dhawan, would the bar had the same reaction? The senior members of the bar, who came for the defence of Mr Prashant Bhushan in the recent contempt case, had an indifferent attitude toward Dr Rajiv Dhawan’s conduct. Are we going to set a wrong example for the coming generation that it is okay to smoke during the court proceedings?

A Writ Petition has been preferred under Article 32 r/w Article 14 of the Constitution of India, pertaining to the conduct of Sr. Advocate Rajeev Dhawan during the course of hearing concerning 6 BSP MLAs of Rajasthan Assembly, wherein Adv. Dhawan was smoking in the virtual court room while Mr.KapilSibal was arguing.

Thus, the petition is based on the fact that Sr. Adv. Rajeev Dhawan’s, smoking during virtual courtroom proceedings are outright contumacious, and affront to the dignity and majesty of the Honourable Court. And is a fit case of being recalled of his Senior Advocate designation. Reliance was also placed on the ruling of this Honourable Court in E.S. Reddi v. Chief Secretary, Government of A.P,“By virtue of the pre-eminence which senior counsel enjoy in the profession, they not only carry greater responsibilities, but they also act as a model to the junior members of the profession.”The Court also referred to Indira Jaising v. Supreme Court of India whichruled, in the event a senior advocate is guilty of conduct, which according to the full court disentitles the senior advocate worthyof its designation, the court may recall the designation of such senior advocate.

That during the course of hearing; Dr. Rajeev Dhawan was smoking; an outright affront within the meaning of Section -2 (c) of the Contempt of Courts Act r/w the Bar Council Rules, as to Advocates Code of Conduct. Conduct of Adv. Dhawan certainly was disgraceful in soiling the hallowed gown of Senior Counsel. Under Rule 1 & 2 of Bar Council of India, Code of Conduct Rules, enjoins an advocate to act in a dignified manner before a Court & with self-respect. The term Court certainly includes a virtual Court, and the adherence to dignified conduct is a ‘must’ without any known exception for a designated senior advocate.

In my opinion harassing, humiliating, scandalising and bullying judges is not activism. Are we going to make heroes of people who tarnish the image of the court? Interestingly, Dr. Rajiv Dhawan who himself is guilty of misconduct is the advocate for Mr. Prashant Bhushan.

The tweets made by Adv. Prashant Bhushan were highly disregarded by people, days after which a petition came to be filed in the Honourable Supreme Court by one Mahek Maheshwari bringing to the notice of this Court, a tweet made by Mr.PrashantBhushan, Advocate, praying therein to initiate contempt proceedings against the alleged contemnors for wilfully and deliberately using hate/scandalous speech against this Court and entire judicial system.

The Supreme Court relied upon Re: Arundati Roy,,where it was observed As already held, fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the courts in the name of fair criticism which, if not checked, would destroy the institution itself”

Thus, it observed that it is well settled that a citizen while exercising right under Article 19 (1) is entitled to make a fair criticism of a judge, judiciary and its functioning. However, the right under Article 19 (1) of the Indian Constitution is subject to reasonable restriction under clause (2) of Article 19. An attempt has to be made to properly balance the right under Article 19 (1) and the reasonable restriction under clause (2) of Article 19. If a citizen while exercising his right under Article 19(1) exceeds the limits and makes a statement, which tends to scandalize the judges and institution of administration of justice, such an action would come in the ambit of contempt of court. If a citizen makes a statement which tends to undermine the dignity and authority of this Court, the same would come in the ambit of ‘criminal contempt’. When such a statement tends to shake the public confidence in the judicial institutions, the same would also come within the ambit of ‘criminal contempt’. And thus held him guilty for contempt of Court.

Further, on August 19th 2020, a petition was filed by Adv. Prashant Bhushan to defer sentence hearing in the contempt case so as to file a review petition against the judgment. The Court refused to accept it and continued the sentence hearing on 20th august, however when asked to reconsider the statement made by Mr. Prashant Bhushan in the Court justifying his tweets, he declined the offer by the Supreme Court. The court even gave Mr. Prashant Bhushan a chance to submit an “unconditional apology” by 24th of August.

Thus, we can conclude and say that contempt of court cannot be taken lightly so as to ensure the public’s faith in the judiciary. There are various things that are to be considered apart from the arguments made in the court and cannot be neglected at any cost. The judgment of the apex court in  Prashant Bhushan Case well as several other judgments in the past have time and again held the same thing, that freedom of speech and expression cannot be to such an extent that it infringes upon rights of others, and in the instant case, being the reputation of the judiciary as a whole.

REFERENCES

  • S. Reddi v. Chief Secretary, Government of A.P; 1987) 3 SCC 258 ¶ 10.
  • Indira Jaising v. Supreme Court of India ; (2017) 9 SCC 766.
  • Re: Arundati Roy (2002) 3 SCC 343 ¶ 28.