Terming the judgement of the contempt of court case as 'bad', senior lawyer Prashant Bhushan said that the judgement can be used to issue contempt proceedings against anyone who criticizes the judiciary.
Speaking to BOOM, Bhushan, who has been convicted of contempt for tweets criticizing the Supreme Court and Chief Justice SA Bobde, said, "The law is the same for everybody. They could charge any media person or any ordinary citizen also for saying those kinds of things or anything for that matter which is typical of the court. They picked upon me possibly, because they thought that what I say is heard carefully and seriously by a lot of people and therefore they felt that the damage that what I was saying was doing to them was far greater than the damage which any ordinary person or any media person saying would do to them."
Bhushan was given the option of paying a fine of Re 1 or face imprisonment. Choosing the former, Bhushan has said that he will be challenging the provision of the law by filing a review petition on the grounds that the law is vague and undefined, much like the sedition law and Section 66A of the IT Act. However, Bhushan also bemoaned the fact that people were still being charged with sedition and under section 66A of the IT Act.
The interview can be watched here.
Below are edited excerpts from the interview.
Govindraj Ethiraj: Hello and welcome. The concept of freedom of speech goes back a long way, maybe to the Roman Republic as some would say. The Universal Declaration of Human Rights in 1948 also talks about the freedom of speech, the freedom of speech and expression go together. Perhaps the freedom of speech expression and media freedom are linked, but perhaps not so directly. So what is freedom of speech exactly mean and more so, in a country like India, where we are right now, at this point, has it ever changed, have certain judgments in this case by the Supreme Court of India changed the way we look at freedom of speech or ought to look at freedom of speech? Let's try to understand that a little better, but by looking at what the Constitution says, what are the exceptions which was always there? And to that extent, do we as a country really enjoy freedom and speech as we would like, and even if we were to exercise freedom of speech as we would like to, what are the safeguards that we should perhaps impose on ourselves or should we not impose any safeguards.
That's really the question I'm posing and who better to pose it to then Supreme Court lawyer, Prashant Bhushan. Mr. Bhushan, thank you very much for being with us today. So tell me, you've been in a very very famous case, which has ended with the Supreme Court convicting you for contempt of court, which in turn links to the freedom of speech concept, and we'll come to that for which you have to you have to pay fine rupees one on face imprisonment, and you have paid the fine rupees one and you have now said that you will appeal against that. So let's come back to the primary question first, what is freedom of speech?
Prashant Bhushan: So freedom of speech is the right to say what you want really. That's the freedom of speech and that's protected fundamental right under our Constitution, because in any democracy, it is important that every citizen should be able to speak his mind freely, so as to be able to say what he wants, what he needs, what in his view is going right or wrong in our society, what in his view the government is doing, which it should not be doing, what is it that the government should be doing or what is it that any public authority should be doing? What is it that any institution is doing, which is not right.
So, all these are parts of freedom of speech, which are required in any democracy, because democracy means that, society is governed by the rule of law and by the rule of the people. The law of created by the people in the way that the people want and you can't do that unless the people are able to discuss what is it that they want? What do they feel about what is going on? And that is why all this, this freedom of speech was made into a fundamental right, and perhaps the most important fundamentals right. In any democracy,
Govindraj Ethiraj: How does this right flow from our constitution? I mean, what is the relevant statute and what is the other any provisos or exceptions?
Prashant Bhushan: Yes, so, under Article 19 (2), the freedom of speech can be restricted by way of reasonable restrictions imposed by law. So the key words are reasonable restrictions. Second, imposed by law and thirdly, in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense. So, the reasonable restrictions on the freedom of speech can be imposed by law, but those must be reasonable and they must be relatable to the things which I just mentioned. That is security, integrity, friendly relations, public order, even say morality, contempt of court, defamation. These are the only grounds on which freedom of speech can be restricted but only reasonably restricted.
Govindraj Ethiraj: Therefore, freedom of speech is not an absolute. It's not an absolute even in India
Prashant Bhushan: No, it's not.
Govindraj Ethiraj: How would you compare it with other democracies? Let's say Western democracies, maybe Scandinavia, European democracies, North America. I mean is are there any comparisons? I mean, do they have similar, let's say provisions or exceptions to freedom of speech?
Prashant Bhushan: So probably the US has the most expansive freedom of speech law. For example, in that Pentagon Papers case where the New York Times published the Pentagon Papers which revealed a lot of defense secrets during the Vietnam War. The court held that even that the government tried to restrict it on the grounds of security of the state. But the court, the US Supreme Court held that no, that cannot be restricted because even about what is going on by way of what the government is doing, by way of the security of the country, that also needs to be known to the people, that needs to be freely discussed. So, see in India, this has been attempted. Freedom of speech has been an attempted to be restricted or stifled by use of the sedition law, which is part of the penal code, which says that if you do something which creates disaffection against the government of the day. Then it says "Whoever by words either spoken or written, or otherwise brings or attempts to bring into hatred or contempt, or excites, or attempts to excite disaffection towards the government established by law in India shall be punishable."
So the question arose because the law of sedition, this is a colonial law. This was made by the British government and for the pre-constitution law, and it was still being used even after the constitution. It was being used to, to prosecute people who were speaking against the government, who were criticizing the government. And therefore, this question arose as to whether this law as it is literally worded, that attempt to create this disaffection against the government, whether such a law can be considered to be a reasonable restriction in the interest of the security of the state. And the court held in 1962, in the Kedarnath case, is that no, it cannot be said to be a reasonable restriction unless you interpret it differently. Unless you say that sedition offense will only be committed if you are trying to overthrow the government by violent means, or by creating public disorder. So they restricted the meaning, but unfortunately even today, because the law has it, It is still on the statute book. So there are a lot of governments and a lot of police authorities which are still continuing to misuse it to charge people who are merely criticizing the government, which is a clearly a fundamental right.
Govindraj Ethiraj: So you're saying that it's only the sedition law when read with freedom of speech, which causes the problem. So if sedition was not there, then the freedom of speech law that we have, are the clauses that we have fine?
Prashant Bhushan: No, I'm not saying that. So another instance arose when the 66 A of the Information Technology Act process, because the Act says that anything which is indecent or causes alarm to people, which is grossly offensive, etc, without defining any of these things, is an offence under the Information Technology Act. And the court said that, look, this is too vague and undefined. And there were a lot of people who were being charged under this provision of the Information Technology Act, just because they were posting something which was highly critical of another individual which that individual said was causing him alarm or calling him that was indecent reverts. And, and therefore the court struck it down saying that this was too vague and therefore, does not constitute a reasonable restriction in the interest of either public order, or decency or morality. Same thing we tried to do when we challenged this contempt of court, a part of it, that is scandalizing the court or lowering the authority of the court. Contempt court is civil contempt of criminal contempt, and even in civil contempt means disobeying a court order. Criminal contempt is also in two parts. That is interfering with court proceedings or with the administration of justice. So that is not a problem but the other part; scandalizing the court or lowering the authority of the court, we challenged it on the ground that this is also very vague and undefined
Govindraj Ethiraj: There is freedom of speech there is freedom of expression and there is a press freedom. Now are all three interlinked and do they flow from the same clause two of Article 19 that you spoke of or does media freedom differ as in the, you know, the you mentioned, you talked about state security, public order, decency and morality to the same professors apply to media as well.
Prashant Bhushan: Yes, freedom of speech of any individual or the media. Media has the same rights of freedom of speech as any individual and therefore, the rights of the media to speak can be restricted in the same way for the same reasons as an individual. However, today, the difference between media and individual has been obliterated, because with the advent of social media, every individual exercising his freedom of speech. So for example, my tweets are in a way my personal expression of opinion, but because they are being expressed through the social media, it also involves the right of the media to speak. So that the right is exactly the same. The restrictions are exactly the same whether they are on any individual or whether they are on.
Govindraj Ethiraj: Is freedom of speech, the same as freedom of expression, for instance, artists and performers, creative expressions?
Prashant Bhushan: Yes, they are the same. They have the same. So some people say that well, you should have absolute freedom even on the social media to say anything that you want, that's not really correct. Because, for example, under the Indian Penal Code, spreading hatred between communities on religious or other sectarian grounds is an offense. And that would constitute a reasonable restriction on the basis of public order. Because if you are trying to spread hatred, then you are clearly giving a signal to people to take the law in their own hands and create public disorder. So, so that can be restricted. But as I said, the restrictions have to be reasonable restrictions.
Govindraj Ethiraj: How does a freedom of speech violation lead to contempt of court? Is it only because someone like you maybe an officer of the court or someone who is practicing in court, or is it something that can apply to me too?
Prashant Bhushan: No, it applies to everybody. There is no distinction just like that there is no distinction between the rights of an individual and that the media regarding freedom of speech. There are there is no distinction between the rights of a lawyer or an officer of court or a retired judge or a sitting judge vis-à-vis any other ordinary individual and everybody has the same rights. So as I said, there are two parts of contempt of court, civil contempt, which is disobedience of a court's order that has nothing to do with speech, then criminal contempt. Which is, again in two parts, interfering with court proceedings or interfering with the administration of justice. That also usually has nothing to do with speech. It's the third part, which is scandalizing the court or lowering the authority of the court. That offense under the contempt of courts, the act is usually committed by speech. And it is if you say something which is which is against the court or against some judge, then that can be treated.
You see, this is not defined anywhere, what is scandalizing and what is lowering the authority of the court. And that is why we have challenged this provision on the same ground on which 66 A of the Information Technology Act was challenged and struck down, that it's very vague and undefined. And also because this is a jurisdiction which is exercised by judges in their own cause where they are sitting as the accuser. So if you say something like, for example, that I said that the Supreme Court has failed to protect democracy in the last six years, and that the role of the last four Chief Justices has been crucial in failing to protect democracy. Now, then I was accused of contempt of court by the same Supreme Court whose judges are some of whose judges would be the same, or many of whose judges would be the same which I was criticizing. As I said, every individual in a democracy has the right to criticize any institution. Therefore, if you try and make a law which restricts or makes it an offence, to criticize even the court, that should be deemed to be an unreasonable restriction on the freedom of speech. You can restrict freedom of speech, even on the ground of contempt of court. But not unreasonably.
Govindraj Ethiraj: To a to a student of political science, this was to me it would seem that because it's not defined, it could work in both ways. It could work in the courts favor if it were to take a stringent position on a certain issue, and it can work in your favor if you're trying to argue it out.
Prashant Bhushan: Yeah, but if it is not defined, you see, the citizen is not aware of what he can do and what he can't do. And that makes it unreasonable. If you want to impose reasonable restrictions on the freedom of speech, the citizen must know what those restrictions are, and if it is so vague and undefined, as 66 A was of the Information Technology Act or as this scandilizing or lowering the authorities, then that's an unreasonable restriction.
Govindraj Ethiraj: So then how does one address that? I mean, so let's say we are at this impasse of sorts, because there are certain interpretations of reasonable application which are left open, and it could be deployed in either ways. So then is it not incumbent on someone to then define it? And then how does one do that?
Prashant Bhushan: Yes, so that's why we went to court saying that either you strike it down, or you read it down. 66 A of the Information Technology Act was struck down on the ground is too vague and define what constitutes annoyance to somebody or not. I mean, you have a right to criticize an individuals, especially an individual who's in public life. If he says 'this is causing me annoyance', and therefore, it's an offence and he registers an FIR. So that was considered to be unreasonable because it was too vague and undefined. Same thing about scandalizing. It needs to be either defined or it needs to be struck down. It needs to be very, very clearly defined, so that people know exactly what is permissible. Suppose they say, if you accused any judge of being corrupt or giving judgments for extraneous considerations, then that would constitute scandalizing the court. That one can understand. Even their truth is a defense that the contempt of court's act an Amendment was made by which truth has been made a defense. Not only that, you cannot punish somebody for contempt of court, unless it has substantially interfered with court proceedings or with the administration of justice. So therefore, strictly speaking, normally, speech by itself should not constitute a punishable offense under the contempt of court side.
Govindraj Ethiraj: So if I'm trying to say or ask, why is my country whether it's the executive or judiciary not defining what is a reasonable boundary for freedom of speech. So who do I pose that question to?
Prashant Bhushan: It has to be posed to either to the legislature which makes which makes these laws or it has to be posed to the court.
Govindraj Ethiraj: Does all of this, including the case that you've just gone through, does that change the concept of freedom of speech, as defined by Article 19.
Prashant Bhushan: Yeah, in my case, the judgment is very bad in the sense that it holds that even these tweets amount to scandalizing and therefore contempt. And therefore they have said basically, any criticism of the court amounts to contempt of court. It's a very bad judgment, we are challenging it by way of review as well as filing a writ petition. And we hope that it will be overturned and that it will not become a precedent which can be used in other cases.
Govindraj Ethiraj: But it need not be a precedent outside of this particular case. I mean, for instance, this is contempt of court in the courtroom, so to speak, or concerning people who are working with the court or officers of the court or judges. But let's say a normal person, a citizen or maybe a media person says something as they do every day. I mean, nothing happens to them for one and second. They do not seem to be maybe causing the same amount of, let's say, trouble, as maybe you did.
Prashant Bhushan: Yeah, I mean, the law is the same for everybody. So, they could charge any media person or any ordinary citizen also for saying those kinds of things or anything for that matter which is typical of the court. They picked upon me possibly, because they thought that what I say is heard carefully and seriously by a lot of people and therefore they felt that the damage that what I was saying was doing to them was far greater than the damage which any ordinary person or any media person saying would do to them.
Govindraj Ethiraj: The freedom of speech as a concept in this country therefore, is not really affected. Except in the kind of cases that you've defined, given that we already have exceptions and provisos.
Prashant Bhushan: Yeah. So there are still, as I said, gray areas in the law which need to be sorted out, especially in relation to the scandalizing the court or lowering the authority of the court. Fortunately, they sorted it out in the case of sedition. But even that, as I said, because the law still reads the same, that creating disaffection against the government is sedition. And therefore, people who are criticizing the government or the Prime Minister etc, are being charged with sedition. Though the Supreme Court had said that unless you are saying something to create public disorder or Violence, then it will not be sedition. But unfortunately, that judgment is being ignored. There are still people who are being charged under 66 A of the Information Technology Act, even though that has been struck down. A lot of police officers don't know as to what is the interpretation given by the Supreme Court. What has been the development of the law.
Govindraj Ethiraj: Mr. Bhushan, thank you so much for joining us and, and providing your insights on what really freedom of speech means and means to me. Thank you.