The Supreme Court of India convicted senior advocate Prashant Bhushan for contempt of court on August 14, 2020. The court found Bhushan guilty for his two tweets that were denounced as a scathing attack on the integrity of the judiciary. Bhushan’s case and the judgement have been perceived as a severe setback or blow to the freedom of expression in India. Liberals have perceived this case as a critical judgement on the status of freedom of speech in India. The dissenters’ believe that Bhushan’s tweets were simply criticising the Supreme Court and being able to express such criticism is a fundamental right of a citizen. However, reaching such a conclusion is not rational if one considers this case and judgement purely on its merits. This article will explore the limits and tensions of freedom of speech and prove how they justify Bhushan’s conviction. 

Contempt of Court and the Judgement

This section will explore the details of the case: the two tweets and the court’s judgement. Prashant Bhushan was charged for contempt of court for his two tweets posted on Twitter on June 27 and 29. 

The June 27 tweet accused the supreme court of being an equal contributor to the destruction of the Indian democracy over the past six years of the BJP government. Moreover, Bhushan indicated that the tenure of the last four CJIs has an even more particular role in this destruction. 

The June 29 tweet included a photo of CJI S.A. Bobde riding a Harley Davidson motorcycle, and said, “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!”

As far as the second tweet is concerned, the court decried it as undoubtedly false, malicious, and scandalous. The second tweet is problematic as a factual matter because the Supreme Court was not completely closed; the court was open and hearing ‘urgent’ cases. The court pointed out that Bhushan himself accessed the court during the lockdown. The court believed that the tweet gave a false impression that the CJI is enjoying a bike ride while he’s keeping the courts closed, denying the citizens their right to justice. 

Since this is a matter of facts, focusing on the first tweet is constructive to understand the various tensions between freedom of speech and contempt of court in this matter. 

The first tweet is a matter of serious consideration criminal contempt of court. Contempt of court, simply put, is an act that can scandalise the authority of the court or hinder the administration of justice. It’ll be useful to consider the supreme court’s judgement justifying how Bhushan’s actions amount to contempt of court:

“The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction….”

Analysing the Limits of Freedom of Speech and Harm

Criticising democratic institutions like the judiciary, bureaucracy, and the government is a fundamental right and necessary to keep their powers in check through public accountability, but does Bhushan’s tweet qualify as criticism? I’m inclined to disagree. Criticising the judiciary would constitute questioning or objecting to a court proceeding or a particular verdict. Questioning a court verdict on its merits seems a plausible and constructive way to criticise the court. However, Bhushan’s tweet has effects and implications that go beyond simply criticising the court on the aforementioned ground. The tweet does the job of a malicious accusation which blames the Supreme Court of being a co-conspirator in the destruction of democracy over the past six years. His exercise of freedom of speech, as a mere opinion, inflicts significant harm on the public confidence and integrity of the judiciary. It is important to keep in mind that Bhushan is a senior advocate of the SC, and his views have a wide readership and credibility in the public sphere, hence, the lack of magnanimity in the verdict.

The verdict reads, “It(the tweet) has the tendency to shake the confidence of the public at large in the institution of the judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice.” This statement narrows down on the harm caused by Bhushan’s tweets. The supreme court is the highest institution of justice in a democracy, deemed independent of any other institution of power. Accusing the apex court of partaking in the destruction of democracy has a detrimental effect on the image of the court. Such accusations inflict serious harm on the public confidence in the judiciary. Bhushan’s public expression of this particular opinion impairs the public perception of the judicial system. Malicious and false accusations of such kind do no more good than allowing one individual to express their opinion and, consequently, damage the stature of the judiciary in society. 

Bhushan’s expression of such an opinion, or anyone else voicing similar opinions, can deter millions from approaching the court as a result of their deplorable belief in the judiciary. A common citizen, educated or not, would receive a senior advocate’s opinion with a degree of optimism and, subsequently, alter their perceptions of the judicial system by adding beliefs of a broken, partisan institution. In this case, where Bhushan’s accusation on the SC’s involvement in the destruction of democracy holds no merit or truth, finding him guilty for his comments on the court is justified considering the harm it inflicts on the public confidence in the judiciary.

People condemning the court’s judgement have been swift to point out that upholding a citizen’s freedom of expression is paramount and duty of the court. They believe that this incident is an example of the court’s arbitrary use of its power to silence criticism. Though it’s intelligible that people are outraged at a high profile case where their freedom of expressing criticism is at stake, it is important to consider the damage such opinions have on the public opinion at large and the ease and trust with which a citizen seeks justice. 

An essential component of John Stuart Mill’s theory of freedom of expression was the Harm principle which states that for an action “to constitute harm, an action must be injurious or set back important interests of particular people, interests in which they have rights.” To analyse and understand the court’s reasoning for convicting Bhushan, referring to the Harm principle is instructive. Restricting Bhushan’s freedom of expression in this matter is justified due to the harm it inflicts on the public confidence at large. The court explains that “the trust, faith and confidence of the citizens of the country in the judicial system is sine qua non(essential) for the existence of rule of law.” The validity of harm on public confidence and the resultant inhibition of exercising one’s right to justice is considerable, especially when the accusations hold no merit. 

Here arises the question of what responsibility we owe to the supreme court. Do citizens have a responsibility to upkeep the confidence in or image of the judiciary? Primarily, we can posit that citizens have the responsibility of exercising their rights judiciously, being mindful of the effect it may have on other’s interest in exercising their own rights. Additionally, there is also a sense in which the judiciary is placed on a higher pedestal than other institutions in a democracy, justifiably so. One may criticise the government in all possible manner on its failures, shortcoming, negligence, etc. The first part of Bhushan’s tweet mentions the destruction of India’s democracy over the past six years. This claim, though irrelevant here, is one concerning political debate. Expressing criticism over the destruction of democracy by the government is completely justified, rather essential to make the citizens’ voices heard and hold the government accountable. However, considering the stature of the judiciary in a democracy is important to gauge the rationale behind making an exception for the sort of criticism that Bhushan articulated. 

The verdict mentions, “the Indian judiciary is not only one of pillars on which the Indian democracy stands but is the central pillar. The Indian Constitutional democracy stands on the bedrock of rule of law.” The judiciary is the last resort for a citizen seeking justice and protection from the government or their fellow citizens. Accusing the supreme court of destroying the system or ideals that it exists to protect is harmful to public sentiment and confidence and, hence, amounts to contempt of court. 

Aman Khullar is a second-year student of political science and economics at Ashoka University.