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From Criticism to Contempt: Twitter and Free Speech in India

Shrutika Pandey and Gursimran Kaur Bakshi
SEPTEMBER 17, 2020 09:48:51 AM
Edited by:
Vishwajeet Deshmukh | Government Law College Mumbai, IN

Shrutika Pandey, Litigation Assistant at the Human Rights Defenders Alert, and Gursimran Kaur
Bakshi, a student at National University of Study and Research in Law, Ranchi, from India discuss
the tweeting and contempt of Adv Prashant Bhushan...

Justice H.R. Khanna from the Supreme Court of India once observed ‘Judges should not silence criticism
with threat of Contempt of Court but should remove the weakness and drawback that crept into the
judicial system.’ Administration of justice and upholding the majesty of law is undoubtedly a herculean
task but not a cloistered virtue. 

Recently, the Supreme Court of India (SC) held Advocate Prashant Bhushan for the offense of criminal
contempt for publishing two tweets on his twitter handle. The court observed that his posts criticizing
the Chief Justice of India (CJI) and other previous Chief Justices were calculated interference with the due
course of justice or the administration of law by the court.
In India, contempt of court is sui generis and traces its root from the inherent powers of the court that
must be invoked in extraordinary circumstances to meet the end of justice. The power to hold someone
for contempt finds its mentioned under Article 129 and Article 215  of the Constitution of India
respectively. These powers are read in conjunction with Article 142(2) of the Constitution and section
228 of the Indian Penal Code, which mandates a maximum punishment of six months for intentionally
insulting a public servant during a judicial proceeding. 

Moreover, the Contempt for Courts Act was enacted in 1971 (1971 Act) on the recommendation of the
special committee headed by H.N Sanyal, the Additional Solicitor-General of India. The 1971 act refers
to two types of contempt – civil and criminal. The Oxford dictionary defines the term criminal
contempt of court as ‘A conduct that obstructs or tends to obstruct the administration of
Justice’. Notably, contempt law is drafted to accommodates two constitutional values – the right to free
speech and the right to independent justices, as observed in M/S. Chetak Construction v. Om
Prakash.  Freedom of speech and expression, including the right of a free press, is mentioned under
Article 19(1) (a) of the Constitution whereas Article 19(2) allows the state to put reasonable restrictions
in the larger interest of the public. 

In a constitutional democracy, the rule of law necessitates that law is above the three organs of the
government. The acts of the executive are accountable to the citizens, the laws made by the legislature
are within the ambit of judicial review of the courts, and the judicial organ is held accountable through
public criticism. If the judicial organ is not subjected to public criticism, then it would be nothing less
than a ‘Command of the Sovereign’. This is primarily because of the court’s unusual type of contempt
jurisdiction that combines “the jury, the judge, and the hangman.” 

Holmes J. observed the right to speech and expression as the lifeblood of democracy that includes the
right to fairly criticize in good faith, the work of the court in private or public in Regina v. Secretary of
State for the Home Department. However, the right to free speech is threatened in case a person is
charged with criminal contempt under the court’s inherent power or through the 1971 act. This is
primarily for two reasons – first, the inherent powers have no limitations and the court itself has to
exercise judicial restraint. Previously, the SC has exceeded its contempt powers in In Re Vinay Chandra
Mishra, wherein the court suspended the license of the practicing advocate who was guilty of criminal
contempt. The correctness of this judgment was made in the Supreme Court Bar Association v. Union
of India. It was observed that the court, in the exercise of its contempt jurisdiction, cannot expand its
grounds of punishment to determine whether an advocate is guilty of professional misconduct or not.
Moreover, inherent powers must be exercised sparingly to do complete justice to the parties. 

Secondly, certain amendments were made in 2006 through section 13. According to section 13, the
court cannot punish for contempt unless the court is ‘satisfied’ that there has been an obstruction to
the administration of justice and where the person charged with contempt ‘justifies’ his acts by truth as
a valid defense and the court is satisfied that such ground has been invoked in the public interest and in
a bona fide manner. The authors in this blog argue that there is a manifestation of prejudice when the
court relies on terms like satisfaction and justification to punish someone for contempt. International
guidelines on judicial accountability, which are part of the Bangalore Principles on Judicial Conduct
necessitates that the court must be impartial. One of the manifestations of prejudice is the misuse of
contempt powers. According to Principle 2, contempt of court should be a last resort and must conform
to procedural standards.
In the Prashant Bhushan’s case or in many other cases, the court does not follow a procedural standard
while punishing an individual for contempt which is required when freedom of speech and expression
is reasonably restricted under Article 19(2) of the Constitution. While the use of section 13 is frequent,
the provision is not free of subjectivity. The authors suggest that there must be a procedural standard
on the punishment of contempt. The European Court of Human Rights (ECtHR) in The Sunday Times v.
The United Kingdom established a three-prong test for a restriction on freedom of expression to be
justified. 

According to General Comment No. 34, freedom of speech and expression is a foundation stone for
every free and democratic society and for the promotion and protection of human rights. Importantly,
Article 19(2) of the International Covenant on Civil and Political Rights (ICCPR) embraces expressions
that may be deeply offensive, as held in Malcolm Ross v. Canada. 

According to the three-prong test, first, the restriction must be provided by law. Advocate Bhushan said
the law invoked in the instant case was the 1971 Act. However, the court failed to investigate whether
the tweets substantially obstructed the administration of justice under Article 142(2) of the Constitution.
Moreover, the court fails to satisfy requirements under Section 13(a) and mentions why the defenses of
‘truth’ provided under Section 13(b) have not been provided to Bhushan. The court opines in paragraph
71 of the Judgement: “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.”

A simple reading of section 13(a) and (b) establishes that the statute, therefore, puts an obligation on
the court to assess the situation itself as regards the factum of any interference with the course of
justice or due process of law as established in C.K. Daphtary v. O.P. Gupta. But when such an
investigation runs parallel to Article 19(2) of the Constitution, it is found that the threshold followed in
the statute is the likelihood of obstruction to the administration of justice. Section 13 suffers from
vagueness as it lowers the threshold of reasonable restriction by constructive hinders to the
administration of justice whereas, there must be ‘actual’ obstruction to claim the grounds of Article
19(2) of the Constitution as held in the landmark judgment of Shreya Singhal v. Union Of India.

Second, the interference must pursue a legitimate aim. Article 19(3) of ICCPR clearly sets out the
‘legitimate aims; under two points:

(a) In respect of the rights or reputations of others;

(b) For the protection of national security or of public order (order public), or of public health or morals. 

Of the aims mentioned in the ICCPR, only the one relating to ‘protection of … public order’ is related to
the instant case. However, the judgment fails to mention how ‘public order’ (also a ground under Article
19(2) of the Constitution of India) is affected by the statements of Mr. Bhushan. Rather, the court
focuses on ‘public confidence in the administration of justice or the majesty of justice’, which is wholly
subjective and has no measure whatsoever.

Third, the restriction must be necessary to secure one of those aims. The word “necessary” means that
there must be a “pressing social need” for the restriction. At this point, such an approach was
unnecessary as it is impossible to determine whether public confidence has been undermined by these
tweets or not. On the contrary, the court itself pointed out in paragraph 63 that it has heard 12748
matters during the lockdown period.
It is crucial to be cautious against the criminalization of speech as it is counter-effective and the threat
of harsh sanctions exerts a significant chilling effect on Article 19 of the Constitution. India’s subjective
approach discredits the very idea of accountability. Subjectivity is a form of the human element and if it
enters into awarding the punishment as contempt of court, it is to be feared that few in or out of the
profession will escape. To settle the uncertainty in the approach of the court and to address pertinent
questions on the Act of 1971, a reference to the constitutional bench would be the need of an hour. 

Shrutika Pandey is a Litigation Assistant at the Human Rights Defenders Alert in New Delhi.

Gursimran Kaur Bakshi is a final year student at the National University of Study and Research in Law,
Ranchi.

Suggested citation: Shrutika Pandey and Gursimran Kaur Bakshi, From Criticism to Contempt: Twitter
and Free Speech in India, JURIST – Professional Commentary, September 14, 2020,
https://www.jurist.org/commentary/2020/09/pandey-bakshi-bhushan-contempt-criticism-twitter/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not
necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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