“Nemo potestesse simul actor et judex- No one can be at once a suitor and a judge”
In the background of yet again another battle in the quest of striking a fine balance between right to fair criticism and law of contempt, Prashant Bhushan has moved the Supreme Court seeking right to intra-court appeal in original criminal contempt matters. The August 14 judgement via which the lawyer-activist was convicted for criminal contempt of court has sparked a controversy with over 1800 lawyers from all across the country expressing their disappointment at the judgement being a blot in the name of independence of judiciary. Various legal luminaries including former Supreme Court judges have expressed their concerns regarding the revision of standards of criminal contempt so that legitimate criticism is not suppressed under the threat of contempt.
Mr. Bhushan has mainly contended the violation of principles of natural justice and fundamental rights as guaranteed under the Indian Constitution as the basis of the above plea. One of the main contentions is based on the principle of inherent bias. He has put forth the plea that as the Apex institution acts as the prosecutor as well as the judge in contempt cases, there should be a recourse to appeal so that the accused is not left at the mercy of a particular bench. Another argument supporting the plea was that owing to the vagueness of definition of Criminal Contempt, the power of the Supreme Court in dealing with such cases (especially when invoked under Article 129) is unlimited and unregulated and hence an appeal mechanism is important to act as a safeguard against arbitrary decisions.
Another loophole pointed out in the judgement was its inconsistency with the provisions mentioned under Contempt of Courts Act, 1971. According to Section 13 of the contempt of courts act the nature of the alleged contempt should be such as to interfere with the due course of justice. However, one of the main criticisms in Prashant Bhushan’s case is that there had been no interference in administration of justice by his two tweets. The second inconsistency is with regards to the defence of truth as given under the act. Mr. Bhushan has contended that this subjective defence that was rejected by one bench might be accepted by a different and larger bench and where there is no right to appeal this right would be lost.
Right to Appeal is further supported by various international conventions. Article 14(5) of International Covenant on Civil and Political Rights specifically mentions that Right to Appeal is an absolute right. It further goes on to elaborate that even when a trial is by the highest court of a country, right to first appeal is a fundamental right and can at no cost be substituted by a review. According to the United Nations Human Rights Committee and the European Court of Human Rights the right to appeal is one of the basic features of a fair criminal justice system. The right to review is an obligation to ensure effective access to the right having regard to reasonable conditions imposed by the state.
This case has once again given an opportunity to all citizens to question the safeguards available in a democracy. One of the main criticisms regarding the question of the standard of restrictions is to remind all institutions that proper accountability and transparency are the base of any civilised nation. Therefore, hampering of freedom of speech and right to constructive criticism in the name of upholding the authority and sanctity of an institution is against the very concept of civil liberties that the mankind fought for all along.
This post was written by Muskan, IIIrd year