Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment

Editor’s Note 1: Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).

---

Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].

---

I began reading the 108-page long judgment (link) of the Supreme Court, which found Prashant Bhushan guilty of serious “contempt”, with a view to analysing its legal reasoning. On finishing the judgment, however, I found myself in a conundrum: there is no legal reasoning, and therefore nothing to analyse. In particular, Mr. Bhushan had filed an extensive reply (link) to the contempt proceedings against him, contextualising and defending the two tweets for which these proceedings were initiated; among other things, this Reply set out the basis for Mr. Bhushan’s opinion about the role of the last four Chief Justices in the decline of Indian democracy.

In the 108-page long judgment (the substantive part of which begins at page 93), the Supreme Court refuses entirely to engage with Mr. Bhushan’s reply. There are some colourful – and somewhat confusing – references to the Supreme Court being the “epitome” (?) of the judiciary, the need to maintain “the comity of nations” (?!), and an “iron hand” (!). There is, however, no legal reasoning, and no examination of the Reply.

It stands to reason that if an individual has been accused of contempt of court because they expressed an opinion about the role of four Chief Justices in undermining democracy, and that individual has filed a Reply setting out the facts upon the basis of which they arrived at that opinion, a “judgment” holding that individual guilty of contempt cannot pretend that the Reply does not exist. It reminds me of the times I used to take a football from the halfway line, dribble it across the pitch, and kick it into the goal – without any opposition players on the field.

But if the Court chooses not to explain itself, then there is little purpose to be served in excavating an explanation that it ought to have made, and then engaging with that imaginary explanation on legal grounds.

Consequently, I end this post here. Interested readers may consult the Reply, the “Judgment”, and draw their own conclusions.