Expression of opinion cannot constitute contempt of court: Prashant Bhushan to Supreme Court

The expression of opinion, “however outspoken, disagreeable or unpalatable to some”, cannot constitute contempt of court, activist lawyer Prashant Bhushan said on Monday in his reply to a show-cause notice issued by the Supreme Court.

The top court on July 22 issued notice to Bhushan for hearing on August 5 the criminal contempt proceedings initiated against him for his two alleged derogatory tweets against the judiciary, observing his statements prima facie “brought the administration of justice in disrepute”.

In a 142-page reply affidavit filed through lawyer Kamini Jaiswal, the activist lawyer has referred to several apex court judgements, speeches of former and serving judges on contempt of court and the “stifling of dissent” in a democracy and his views on judicial actions in some cases.

Bhushan also stood by his two tweets.

“The respondent (Bhushan) states that expression of his opinion however outspoken, disagreeable or however unpalatable to some, cannot constitute contempt of court. This proposition has been laid down by several judgments of the Supreme Court and in foreign jurisdictions such as Britain, USA and Canada,” he submitted.

He also referred to the freedom of speech and expression under Article 19 (1)(a) of the Constitution and said this right was the ultimate guardian of all the values that the Constitution holds sacred.

READ: Senior journalists N Ram, Arun Shourie, advocate Prashant Bhushan move SC challenging validity of contempt law

“The relationship between Article l9 (1A) and Article 129 (this gives power of contempt to SC) is governed by Article 19(2). Article l9 (2) (reasonable restrictions) recognizes the fetters that can be placed on freedom of speech & expression under the court's power to punish for contempt under Article 129.

“ 'Reasonable restriction' being the operative word under Article l9(2), any exercise of contempt powers by the Supreme Court must necessarily not be of a nature that goes beyond 'reasonable restrictions',” Bhushan said in the affidavit.

To prevent a citizen from forming, holding, and expressing a ‘bonafide opinion' in the public interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded, he said.

The affidavit said the power of contempt under Article 129 of the Constitution should be “utilized to aid in the administration of justice and not to shut out voices that seek accountability from the court for the errors of omissions and commissions”.

It said that to curb constructive criticism from “persons of knowledge and standing” is not a 'reasonable restriction'.

Preventing citizens from demanding accountability and reforms and advocating for the same by generating public opinion is not a 'reasonable restriction', it said, adding that the Article 129 cannot be pressed into service to stifle bonafide criticism.

The affidavit also raised objections related to procedures on taking up the contempt petition filed by one Mehak Maheshwari on July 21.

Earlier, the apex court had issued notice to Bhushan and had also sought the assistance of Attorney General KK Venugopal.

While referring to the tweets by Bhushan, the apex court had said these statements are prima facie capable of "undermining the dignity and authority" of the institution of the Supreme Court in general and the office of Chief Justice of India in particular, in the eyes of the public at large.

Recently, Bhushan filed a separate plea seeking recall of the show cause notice of July 22 order in the contempt proceeding initiated for his alleged contemptuous tweets against the judiciary.

Simultaneously, Bhushan along with former Union Minister Arun Shourie and veteran journalist, N Ram have also moved the Supreme Court challenging the constitutional validity of a legal provision, dealing with criminal contempt on the ground of “scandalizing the court”, saying it was violative freedom of speech and right to equality.