Bhushan Fiasco Again? Why There Should be NO Contempt Case Against Kapil Sibal

There's no guarantee that the Attorney General will consent to a contempt case against Sibal. And he should not!

"Indian judiciary is considered by the citizens in the country with the highest esteem. The judiciary is considered as a last hope when a citizen fails to get justice anywhere. The Supreme Court is the epitome of the Indian judiciary."

These were the words of a Supreme Court bench of Justices Arun Mishra, BR Gavai and Krishna Murari in a judgment in 2020. These words needs no elaborate explanation, but for the unacquainted, in simple terms: The Indian judiciary is a really big deal, and the Supreme Court bigger still.

Naturally, for an institution that embodies hope and justice and all things great, a few lines of criticism should be like well cooked spaghetti on a wall (ie not stick). And yet in this same judgment, in which they had waxed eloquent about the esteem of the Indian judiciary, the Supreme Court held Advocate Prashant Bhushan guilty of contempt of court for his tweets criticising the then Chief Justice of India and India's top court.

Even though Bhushan, on refusing to apologise for his remarks, was only fined a rupee, the judgment by itself went on to set an extremely problematic precedent in which archaic notions about "scandalising the court" which are no longer even applicable in English law (where they are believed to have historically originated) were given precedence over a citizen's fundamental right to free speech.

Now, on what appear to be woefully similar grounds, two lawyers have filed a request letter with the attorney general of India for his consent to proceed with a criminal contempt of court case against former Congress leader and senior advocate Kapil Sibal for allegedly "scandalising the Indian judiciary and disgracing its dignity”.

Wait, What?

Sibal had, on Saturday, 6 August, said in an event held at the Constitution Club of India in New Delhi, that there was no hope left in the Supreme Court, given that its judgments do not translate on the ground level.

According to the Bar and Bench, Sibal expressed unhappiness at having to say these things, but also pointed towards the discrepancy between what a court orders, and what subsequently follows, illustrating with an example of how despite the top court’s privacy judgment, the same is violated when an Enforcement Directorate (ED) officer shows up at someone’s home.

As per LiveLaw, he also criticised:

• The apex court’s judgment dismissing Zakia Jafri’s plea challenging SIT’s clean chit to state functionaries in Gujarat riots

• Adverse remarks made in the Zakia Jafri judgment that were cited in the police complaint that led to the FIR against and subsequent arrest of Jafri’s co-petitioner Teesta Setalvad

• The top court’s order upholding the provisions of the Prevention of Money Laundering Act (PMLA) which allowed vast powers to the (ED)

Further, he reportedly alleged that politically sensitive cases are given to certain judges rendering the verdict predictable.

Lawyers Vineet Jindal and Shashank Shekhar Jha, in their request for a contempt case to be filed against Sibal, claimed, as per PTI:

"The speech of the contemnor is not only against the Supreme Court and its judges but is a process to undermine the dignity and independent nature of the Supreme Court by scandalising the authority of both the Supreme Court and its judges..."

But What is Contempt of Court?

Under the Contempt of Courts Act, 1971, “contempt of court” can either be civil or criminal.

“Civil contempt”, means wilful disobedience of any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court.

“Criminal contempt,” meanwhile, is defined as publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever, which—

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

While the top court has the power to take suo motu cognisance in matters of contempt, criminal contempt petitions by third persons can only be filed with the apex court after they get consent in writing of the Attorney General or the Solicitor General. Thus, obviously, these two lawyers have written to the Attorney General because they can’t themselves haul up Sibal for contempt.

What are the Attorney General's Powers?

It must be clearly stated at this juncture that just because the lawyers have sought permission, it does not mean that they will necessarily get it.

For instance Attorney General K K Venugopal had in 2020 refused his consent for initiating criminal contempt of court proceedings against Bollywood actor Swara Bhaskar in connection with her comments made in the aftermath of the Supreme Court verdict in the the Ram Janmabhoomi-Babri Masjid case.

But he had that same year consented to such cases being filed against comic Kunal Kamra and cartoonist Rachita Taneja.

In Bhushan’s case, however, the Supreme Court had decided to take suo motu cognisance, even though a petition filed by one Mahek Maheshwari had not received Venugopal’s approval and was merely being considered on the administrative side. During the course of the hearing, Venugopal had even gone on to suggest that Bhushan wasn’t the only critic of the top court, submitting that he had a list of five Supreme Court judges speaking of threats to democracy and another nine who had spoken of corruption in the higher judiciary.

However, as pointed out in this article before he could complete his arguments, Justice Mishra interrupted him saying ‘we are not hearing on the merits’.

So while the Attorney General’s views are mandated to hold great import in criminal contempt cases by both Supreme Court Contempt Rules 1975 and the Contempt of Courts Act 1971, precedent indicates that it remains unclear to what extent.

One thing is clear, though, until the top court decides to take matters of contempt in their own hands, the A-G wields significant power.

Still, one does not know how the A-G will react to the lawyers’ grouse against Sibal. While in Bhushan’s case he had urged lenience, reacting to the complaint against Kamra, Venugopal had warned:

“…freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiably and brazenly will attract punishment.”

And Why the A-G Shouldn't Consent to a Contempt Case Against Sibal

The similarities in Bhushan and Sibal’s cases are striking. Not only are both advocates with decades worth of experience, they are both vocal critics of the ruling dispensation.

Is that necessarily a bad thing, though?

Article 19(1)(a) of the Constitution of India allows each citizen the right to freely express their opinions. This includes opinion that may even be unsavoury to those in power.

In Shreya Singhal v Union of India, the apex court had stated that an innocent speech cannot be held to be fundamentally wrong just because it was grossly offensive or causing inconvenience.

In an order rejecting a plea to ban a book by Salman Khurshid, the Delhi High Court had said:

“The freedoms guaranteed by Article 19 are not liable to be freely expressed only if they fall in line with a majoritarian view. The right to dissent or to have and express a contrarian view with respect to current affairs or historical events are the essence of a vibrant democracy.”

Various legal luminaries, including retired and sitting judges have over the course of years talked about the importance of dissent as the bedrock of democracy, and the right to do so as being important to the constitution.

With regard to criticism of the judiciary too, the apex court is known to have upheld the value of free speech.

In Special Reference No.1 of 1964, the then Chief Justice of India Gajendragadkar had famously said:

“We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely.”

The former CJI had gone on to add:

“Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”

In light of the above, it would make little sense for the Attorney General to pay any heed to the contempt petitions, and lesser still if the wise judges of our country do so.

In an order granting bail to television news anchor Arnab Goswami in an abetment to suicide case, Supreme Court’s Justice DY Chandrachud had not only underlined the importance of press freedom and freedom of speech, but had also quoted renowned writer Yuval Noah Harari as saying in his book “21 Lessons for the 21st Century”:

“Questions you cannot answer are usually far better for you than answers you cannot question.”