Freedom of Speech and Prashant Bhushan’s case

-By Rakshinda Raheman, SY BA LLB C

“If the freedom of speech is taken away, then dumb and silent, we may be led, like a sheep to its slaughter.”

~ George Washington

The Constituent Assembly amended Article 19(2) in June 1951, just months after the Constitution went into effect, to add three additional specified limitations towards the right to speech- “Public order,” “friendly relations with foreign states,” and “incitement to an offence”.

The Constitution (First Amendment) Act of 1951 (hereinafter the “First Amendment”) was enacted for three reasons. Firstly, the Supreme Court and the High Courts of Punjab, Patna, and Madras decided to make it impossible for the government to prohibit speech that encouraged hatred among distinct groups, that as the Center did believe was accountable for significant ethnic riots between both Muslims and Hindus.

Secondly, courts made it close to impossible for the central administration to suppress speeches made by Syama Prasad Mookerjee, leading to war between India and Pakistan and rescinding of Partition — speeches made in opposition to the background of the Nehru-Liaquat Pact.

Thirdly, members of Parliament were profoundly concerned by a frightening comment was given by Justice Sarjoo Prasad of Patna High Court in a case in which he stated, “the Right to Free Speech in India encompassed the unrestricted preaching and incitement to murder and violent crime.”

The Right to Freedom of Speech and Expression ensures to all the citizens of India under Article 19(1)(a) of the Indian Constitution. The Indian Constitution’s Preamble also guarantees the people’s freedom of opinion and speech. This right, nonetheless, is not absolute, and Article 19(2) outlines the limitations that may be placed on the practice of this right.

The following examples demonstrate the significance of the Freedom of Speech and Expression:

  1. The most significant freedom given to people in a democracy is the Freedom of Speech and Expression. It lays groundwork for other rights granted to people, such as the Freedom of the Press. In turn, freedom of the press aids in the development of effective public and electorate.
  2. It guarantees that people may openly be vociferous and hold their elected officials responsible. This freedom also guarantees that vital information is disseminated and distributed among people in a lawful manner.
  3. It also serves as a forum for disadvantaged and minority views to be heard. The Right to Freedom of Speech and Expression may be used to spotlight and bring to the forefront issues that affect these communities.
  4. Artists’ creative license is protected by Freedom of Speech and Expression, enabling them to freely develop and disseminate ideas; Academic publications, satirical works, theatre, cartoons, visual arts, and stand-up comedy are all examples.

Freedom of Speech and its limitation

Article 19(2) of the Indian Constitution places limitations on the Freedom of Speech and Expression that covers the following topics:

  • Cordial Relationships with Other Countries – Maintaining amicable relations with neighbouring nations and other countries is critical in a globalised world with uneven power relations. As a result, if a person’s freedom of speech and expression threatens to stifle these relationships or damages a country’s foreign ties, it may be curtailed. This is necessary to prevent harmful acts by a few from jeopardizing the country’s image.
  • Security of the State – To preserve the state’s security, the government has the authority to restrict the freedom of speech and expression. On the other hand, security breaches must pose a greater threat to social stability, including rebellion, insurrection, or fighting a war against the state, among other things.
  • Contempt of court – The fundamental right to Freedom of Speech prevents contempt of the courts. Section 2 of the 1971 Contempt of Courts Act defines the phrase “contempt of court.” The Act states that “contempt of court” applies either as criminal or civil contempt of court.

Since the court is so important in a democracy, free speech and expression may be restricted concerning retaining its status and maintain public confidence in the institution. This is necessary to prevent the courts from being harmed or endangered. The Supreme Court and the High Courts, respectively, penalize contempt of court under Articles 129 and 215 of the Constitution.

  • Defamation – Article 19 clause (2) prohibits anybody from making a comment that disparages another’s reputation. Defamation is a criminal offence in India, defined by Sections 499 and 500 of the Indian Penal Code. The right to free expression is qualified. It does not entail the right to damage another person’s reputation, protected by Article 21 of the Constitution. While the truth is used as a defense for defamation, it is only valid if the claim arises “for the public good.” However, it is a factual question that the courts will determine.
  • Public order – The Constitution (First Amendment) Act of 1951 introduced this basis to address the situation created by the Supreme Court’s judgment in the Romesh Thapar case (AIR 1950 SC 124). The Supreme Court has defined public order as being different from law and order and state security. The phrase “public order” denotes a sense of public tranquility and security.  “Anything that disturbs public tranquility undermines public order,” says Om Prakash v. Emperor (AIR 1948 Nag, 199). Nevertheless, merely criticizing the administration does not always lead to civil unrest. It has been determined that legislation that prohibits deliberately harmful remarks to religious feelings of any kind is a valid and reasonable restriction related to maintaining public order.
  • Decency and morality – Speaking and expressing oneself in a good and moral manner are required. It should not be in violation of modern society’s ethics. Sections 292 to 294 of the Indian Penal Code deal with restrictions on Freedom of Speech and Expression enforced for the sake of decency and morality; they deal with material that is considered obscene. Standards of decency and morality, on the other hand, develop and vary with society and are not static. The Hicklin test, which developed in England, is among the methods for determining a publication’s decency or morality by examining its impact on society’s most vulnerable individuals.
  • Sovereignty and integrity of India – Citizens have been prohibited from making comments that may jeopardize the country’s hard-won sovereignty and integrity. The Constitution (Sixteenth Amendment) Act of 1963 introduced this basis to impose limitations on persons or organizations inciting separatist activities in the nation.

Prashant Bhushan’s case

Prashant Bhushan, the contemnor, is a senior attorney who has spent more than thirty years litigating public interest litigation in high-profile matters. A petition was filed at the Supreme Court of India on July 22, 2020, against him and Twitter Inc., brought two tweets Prashant Bhushan to the attention of the court. The reported tweets, allegedly directed against the Chief Justice of India (CJI) and the Supreme Court, demonstrated a degradation in the judiciary’s independence and the Supreme Court’s role to protect Indian democracy. Twitter finally acted against the messages and banned them. Following is a list of them:

The 1st Tweet (June 22, 2020): “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice!”

The 2nd Tweet (June 27, 2020): “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

The initial tweet, according to Prashant Bhushan, was intended to show his displeasure at the CJI’s irresponsible attitude in riding a motorcycle without even a mask while also prohibiting the SC from physically operating and hearing cases during the COVID-19 lockdown.

 He further claimed that the violation procedures were an effort to suppress liberated expression and violate the Indian Constitution’s Article 19(1)(a). The second tweet, according to Prashant Bhushan, was a real expression of his thoughts on the Court’s (and preceding four CJIs) role in weakening democratic ideals over the last six years (while the BJP (Bharatiya Janata Party) has been in office), and that it could not be considered contempt because it was protected under the Indian Constitution.

The Supreme Court of India has initiated Suo Moto contempt proceedings against public interest lawyer and activist Prashant Bhushan based on two tweets posted on the social media site Twitter. The comments were deemed a “devious, disreputable, measured strike” on the organization of justice administered by the Supreme Court, with one making comments on the Chief Justice of India riding an expensive Harley-Davidson motorbike belonging to a ruling party leader and the other ridiculing the Supreme Court’s role in undermining democracy in India. Prashant Bhushan was charged with contempt of court and was found guilty after the tweets significantly influenced “destabilizing the fundamental basis of the vital pillar of Indian democracy.” The Court imposed a ceremonial penalty, fining him Rupee 1, in response to widespread condemnation of the judiciary’s efforts to curb free expression.

Contempt of court and Freedom of speech

The two most fundamental and essential components of democracy are the Freedom of Speech provided by the Constitution and the court’s independence. The most crucial element for the growth of democracy is constructive criticism, and the Supreme Court should safeguard free speech. But where should the line be drawn? The Court has the right to penalize any conduct that attempts to reduce the importance of the judiciary under the Contempt of Courts Act, 1971, if the criticism has the effect of lowering the judge’s authority or even obstructing the administration of justice. Fair criticism is not constituted contempt of court, as per Section 5 of the Act. The absurdity of the issue is emphasized when the judiciary, against whom the comment was made, is given the authority to determine whether the remark was helpful.

Prashant Bhushan has clearly said in his long response that his tweets are free speech, according to the Suo Motu procedures on August 5 and that any kind of critique, “however forthright, unpleasant, or distasteful, cannot constitute contempt of court.” He also stated that “it is the essence of a democracy that all institutions, including the judiciary, perform for the citizens and people of the country, and that they have every right to freely and fairly discuss the state of an institution and construct public opinion to rehabilitate the institution.”

Under this case, the primary question was whether Prashant Bhushan scandalizes or diminishes the Supreme Court’s authority, as specified in section 2(c)(i) of the Contempt of Court Act, 1971 or not. Unfairness in Supreme Court and High Court Contempt Powers – In India, the word “scandalize,” that is used in section 2(c)(i) of the Contempt of Court Act, is not defined, and the Supreme Court and High Courts have unrestricted contempt powers. This leads to arbitrariness and raises the chances of it being abused.

As a result, it is past time for the Supreme Court to either eliminate this violation or clarify the phrase “scandalizing the court” and establish rules to prevent courts from misusing it. On the other hand, article 19(2) of the Constitution offers eight reasons for limiting the Contempt of court, which is one example of Freedom of Speech and Expression. Because the key phrase in Article 19(2) is “reasonable limitations,” courts may only use contempt powers to assist the administration of justice, not to silence individuals who seek responsibility from the court for errors or omissions in the law.

The irony was that the very court which has spent decades protecting the Right to Freedom of Speech has suddenly declared any forms of condemning sighted it to be an attack on democracy itself. The comprehensive ruling came when the country was dealing with a pandemic and awaiting habeas corpus petitions from citizens in Jammu and Kashmir, suggesting the court’s underlying agenda of silencing any condemnation.

Prashant Bhushan’s instance illustrates a troubling trend in which judges are using their suo motu capacity to penalize individuals who damage their self-esteem in the name of preserving the court’s dignity and influence. With rendering any condemnation of the judges’ actions unlawful, the problem would only become distressing, but since enforced silence will not command precisely the sort of respect and authority which the court requires. Contempt proceedings harm the institution as a whole and since they disqualify any critique of the court. However, it is legitimate if used indiscriminately by courts to salve their wounded egos.

The life and blood of democracy is constructive criticism. On the other hand, the senior judges have neglected to be open-minded in contempt cases. They have used their extensive authority to act immediately in opposition to remarks that have wounded their personal feelings but do not significantly impact the public’s perception in the court. While going through this pattern, it has served to infringe the Constitution’s civil rights and has dealt severe damage to India’s already shaky democratic underpinnings.

Before commencing contempt proceedings, judges must be able to differentiate between comments that cause personal harm and those that degrade the court’s reputation. Moreover, to prevent becoming like an authoritarian government that is above any criticism, the courts must become more broad-shouldered and liberal in their attitude to criticism. Just time will tell what impact this case will have on the fate of the Indian democracy at a moment when accusations of authoritarianism are becoming more prevalent.

Conclusion

Article 129 of the Indian Constitution gives the Supreme Court the authority to punish contempt of court, whereas Article 215 provides the High with Courts the authority to punish contempt of court. These powers are wide in scope, leaving plenty of opportunities for the court to interpret laws and use its judgment. Because there are no standards for utilizing these powers, they are often abused, leading to restrictions on people’s fundamental right to free speech and expression. As a result, people lose their ability to properly criticize the court, just as they do other government institutions.

The purpose of the contempt authority in a democracy is to allow the court to operate efficiently, not to preserve an individual judge’s self-esteem. The judiciary’s basis is built on the people’s unwavering belief in its capacity to provide courageous and unbiased judgment. In the case of former Madras High Judge C.S. Karnan, the Constitutional bench of the Hon’ble Supreme Court stated, “The law of contempt is not designed for the protection of judges who may be sensitive to the winds of public opinion.” Judges are meant to be muscular guys who can survive in a harsh environment.”

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