In Re: Prashant Bhushan and Anr. vs In Re:

Criminal Contempt – Suo Motu contempt proceedings by Supreme Court – Against Contemnor No. 1 (an Advocate) on the basis of two tweets posted by him on Twitter and also against Contemnor No. 2 the Twitter website – Held: A citizen, while exercising his right u/Art. 19(1) of the Constitution, is entitled to make a fair criticism of a Judge, Judiciary and its functioning – But, if while exercising such right one exceeds the limit and tends to scandalize the judges and the institution of administration of Justice tends to undermine the dignity and authority of the Court and tends to shake the public confidence in the judicial institutions, the same would come within ambit of ‘criminal contempt’ – However, when a statement is made against a judge as an individual, the contempt jurisdiction would not be available – The tweets in question, by Contemnor No. 1 which are based on distorted facts cannot be said to be fair criticism made bona fide in public interest – They have the tendency to shake the confidence of the Public at large in the institution of judiciary and the institution of Chief Justice of India and undermining the dignity and authority of the administration of Justice and hence amount to committing of ‘criminal contempt’ – The Court should be magnanimous when there is criticism of Judges and/ or of the institution of administration of justice – But magnanimity cannot BE extended, to such an extent which may amount to weakness in dealing with malicious, scurrilous, calculated attack on the foundation of the institution of the judiciary and thereby damaging very foundation of the democracy – Contemnor No. 1 is held guilty of criminal contempt – Contemnor No. 2 is discharged – Constitution of India – Arts. 19(1) and 129. Suo motu contempt proceeding – By Supreme Court – A petition seeking initiation of contempt proceedings filed before Supreme Court without seeking consent of Attorney General – The Court took suo motu cognizance of the matter – Whether the proceedings can be treated suo motu – Held: The power of Supreme Court for initiating contempt proceedings is derived from Art. 129 of the Constitution – Such power is not limited by provisions of Contempt of Courts Act, 1971 – For suo motu proceedings, there is no requirement for taking consent of Attorney General – The only requirement is that, the procedure followed is required to be just and fair and in accordance with the principles of natural justice. Constitution of India – Art. 129 – Contempt of Courts Act, 1971 – s.

15. Holding Contemnor No. 1 guilty of Contempt of Court, the Court

HELD: 1. The source of power of Supreme Court for proceeding for an action of contempt is under Article 129 of the Constitution of India. Power of this Court to initiate contempt is not in any manner limited by the provisions of the Contempt of Courts Act, 1971. The Court is vested with the constitutional powers to deal with the contempt and Section 15 of the Act is not the source of the power to issue notice for contempt. It only provides the procedure in which such contempt is to be initiated. Insofar as suo motu petitions are concerned, the Court can very well initiate the proceedings suo motu on the basis of information received by it. The only requirement is that the procedure as prescribed in the judgment of *P.N. Duda case has to be followed. In the present case, the same has undoubtedly been followed. So far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the Attorney General because the Court is exercising its inherent powers to issue notice for contempt. Once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that, the procedure followed is required to be just and fair and in accordance with the principles of natural justice. In the present case, the notice issued to the alleged contemnors clearly mentions the tweets on the basis of which the Court is proceeding suo motu. The alleged contemnor No.1 has also clearly understood the basis on which the Court is proceeding against him, as is evident from the elaborate affidavitin-reply filed by him. [Para 18][476-A-E] Re: Vijay Kurle & Ors. (2020) SCC Online SC 407; *P.N. Duda v. P. Shiv Shanker & Others (1988) 3 SCC

167 : [1988] 3 SCR 547 - relied on.

2.1 It is well settled that a citizen while exercising right under Article 19(1) of the Constitution of India is entitled to make a fair criticism of a judge, judiciary and its functioning. However, the right under Article 19(1) is subject to restriction under clause

(2) of Article 19. An attempt has to be made to properly balance the right under Article 19(1) and the reasonable restriction under clause (2) of Article 19. If a citizen while exercising his right under Article 19(1) exceeds the limits and makes a statement, which tends to scandalize the judges and institution of administration of justice, such an action would come in the ambit of contempt of court. If a citizen makes a statement which tends to undermine the dignity and authority of this Court, the same would come in the ambit of ‘criminal contempt’. When such a statement tends to shake the public confidence in the judicial institutions, the same would also come within the ambit of ‘criminal contempt’. [Para 57][502-D-E]

2.2. No doubt, that when a statement is made against a judge as an individual, the contempt jurisdiction would not be available. However, when the statement is made against a judge as a judge and which has an adverse effect in the administration of justice, the Court would certainly be entitled to invoke the contempt jurisdiction. No doubt, that while exercising the right of fair criticism under Article 19(1), if a citizen bonafidely exceeds the right in the public interest, this Court would be slow in exercising the contempt jurisdiction and show magnanimity. However, when such a statement is calculated in order to malign the image of judiciary, the Court would not remain a silent spectator. When the authority of this Court is itself under attack, the Court would not be a onlooker. The word ‘authority’ does not mean the coercive power of the judges, but a deference and respect which is paid to them and their acts, from an opinion of their justice and integrity. [Para 58][502-F-H; 503-A]

2.3 If a constructive criticism is made in order to enable systemic correction in the system, the Court would not invoke the contempt jurisdiction. However, the Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process. After evaluating the totality of factors, if the Court considers the attack on the Judge or Judges to be scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him, who challenges the supremacy of the rule of law by fouling its source and stream. [Para 59][503-B-D]

2.4 The first part of the first tweet states, that ‘CJI rides a

50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet’. This part of the tweet could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI. However, the second part of the tweet states, ‘at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice’. Undisputedly, the said part of the statement criticizes the CJI in his capacity as the Chief Justice of India i.e. the Administrative Head of the judiciary of the country. The said tweet is capable of giving an impression to a layman, that the CJI is enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader, at a time when he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice. [Para 62][503-F-H; 504-A-B]

2.5 Firstly, the date on which the CJI is alleged to have taken a ride on a motorbike is during the period when the Supreme Court was on a summer vacation. In any case, even during the said period, the vacation Benches of the Court were regularly functioning. The impression that the said tweet intends to give is that the CJI as the head of the Indian judiciary has kept the Supreme Court in lockdown mode, thereby denying citizens their fundamental right to access justice. In any case, the statement, that the Supreme Court is in lockdown is factually incorrect even to the knowledge of the alleged contemnor No.1. It is a common knowledge, that on account of COVID-19 pandemic the physical functioning of the Court was required to be suspended. This was in order to avoid mass gathering in the Supreme Court and to prevent outbreak of pandemic. However, immediately after suspension of physical hearing, the Court started functioning through video conferencing. From 23.3.2020 till 4.8.2020, various Benches of the Court have been sitting regularly and discharging their duties through video conferencing. The total number of sittings that the various benches had from 23.3.2020 till 4.8.2020 is 879. During this period, the Court has heard 12748 matters. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India. It can thus be clearly seen, that the statement, that the CJI has kept the SC in lockdown mode denying citizens their fundamental rights to access justice is patently false. The alleged contemnor No.1 has himself appeared on various occasions in number of matters through video conferencing. Not only that, but even in his personal capacity the alleged contemnor No.1 has taken recourse to the access of justice by approaching this Court in a petition under Article 32 of the Constitution. [Paras 63 and 64][504-B-G]

2.6 In this premise, making such wild allegation thereby giving an impression, that the CJI is enjoying riding an expensive bike, while he keeps the SC in lockdown mode and thereby denying citizens their fundamental right to access justice, is undoubtedly false, malicious and scandalous. It has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice. The said statement cannot be said to be bona fide criticism made by him on account of his anguish of non functioning of the courts physically. The contention, that on account of non-physical functioning of the Supreme Court for the last more than three months, the fundamental rights of citizens, such as those in detention, those destitute and poor, and others facing serious and urgent grievances were not being addressed or taken up for redressal, is false to his own knowledge. He has made such a scandalous and malicious statement having himself availed the right of an access to justice during the said period, not only as a lawyer but also as a litigant. [Para 64][505-B-E]

2.7 Insofar as the second tweet is concerned, even according to the alleged contemnor No.1, the tweet is in three distinct parts. According to him, the first part of the tweet contains his considered opinion, that democracy has been substantially destroyed in India during the last six years. The second part is his opinion, that the Supreme Court has played a substantial role in allowing the destruction of the democracy and the third part is his opinion regarding the role of the last four Chief Justice’s in particular in allowing it. The Court is not concerned with the first part of the tweet since it is not concerned with this Court. However, the Contemnor No. 1 has expressed his opinion, that the Supreme Court has played a substantial role in allowing the destruction of democracy and further admitted, that the third part is regarding the role of last four Chief Justices in particular, in allowing it. [Paras 65 and 66][505-E-H]

2.8 It is common knowledge, that the emergency era has been considered as the blackest era in the history of Indian democracy. The impression which the said tweet tends to give to an ordinary citizen is, that when the historians in future look back, the impression they will get is, that in the last six years the democracy has been destroyed in India without even a formal emergency and that the Supreme Court had a particular role in the said destruction and the last four Chief Justices of India had more particular role in the said destruction. There cannot be any manner of doubt, that the said tweet is directed against the Supreme Court, tending to give an impression, that the Supreme Court has a particular role in the destruction of democracy in the last six years and the last four CJIs had a more particular role in the same. It is clear, that the criticism is against the entire Supreme Court and the last four CJIs. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India. The impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of last six years have particular role in the destruction of Indian democracy and the last four CJIs had a more particular role in it. [Paras 67 and 68][506-A-D]

2.9 While considering as to whether the said criticism was made in a good faith or not the attending circumstances are also required to be taken into consideration. One of the attending circumstances is the extent of publication. The publication by tweet reaches millions of people and as such, such a huge extent of publication would also be one of the factors that requires to be taken into consideration while considering the question of good faith. Another circumstance is, the person who makes such a statement. The alleged contemnor No.1 has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up many issues of public interest concerning the health of the democracy and its institutions and in particular the functioning of the judiciary and especially its accountability. The alleged contemnor being part of the institution of administration of justice, instead of protecting the majesty of law has indulged into an act, which tends to bring disrepute to the institution of administration of justice. The alleged contemnor No. 1 is expected to act as a responsible officer of this Court. The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. It cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest. [Paras 69 and 70][506-D-H]

2.10 The Indian judiciary is not only one of the pillars on which the Indian democracy stands but is the central pillar. The Indian Constitutional democracy stands on the bedrock of rule of law. The trust, faith and confidence of the citizens of the country in the judicial system is sine qua non for existence of rule of law. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand. The tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy. There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of judiciary. The said tweet undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law. [Para 71][507-B-E]

2.11 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. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court. A possibility of the other judges getting an impression that they may not stand protected from malicious attacks, when the Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out. As such, in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly. No doubt, that the Court is required to be magnanimous, when criticism is made of the judges or of the institution of administration of justice. However, such magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary and thereby damaging the very foundation of the democracy. [Para 72][507-E-H; 508-A]

2.12 The Indian Constitution has given a special role to the constitutional courts of this country. The Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds. If an attack is made to shake the confidence that the public at large has in the institution of judiciary, such an attack has to be dealt with firmly. No doubt, that it may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement. However, when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand firmly. If such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them. If the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. [Para 73][508-A-F]

2.13 The summary jurisdiction of this Court is required to be exercised not to vindicate the dignity and honour of the individual judge, who is personally attacked or scandalised, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is sought to be shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. The scurrilous/malicious attacks by the alleged contemnor No.1 are not only against one or two judges but the entire Supreme Court in its functioning of the last six years. Such an attack which tends to create disaffection and disrespect for the authority of this Court cannot be ignored. The tweets which are based on the distorted facts, thus amount to committing of ‘criminal contempt’. [Paras 74 and 75][508-F-H; 509-A-D]

Brahma Prakash Sharma and Others v. The State of Uttar Pradesh [1953] SCR 1169; In Re: Hira Lal Dixit and two others [1955] 1 SCR 677; C. K. Daphtary & Ors. v. O. P. Gupta & Ors. (1971) 1 SCC 626 : [1971] Suppl. SCR 76; Baradakanta Mishra v. The Registrar Of Orissa High Court & another (1974) 1 SCC 374 : [1974] 2 SCR 282 – followed.

E. M. Sankaran Namboodripad v. T. Narayanan

Nambiar (1970) 2 SCC 325 : [1971] 1 SCR 697; Re: S. Mulgaokar (1978) 3 SCC 339 : [1978] 3 SCR 162; *P.N. Duda v. P. Shiv Shanker & Others (1988) 3 SCC

167 : [1988] 3 SCR 547; Pritam Pal v. High Court of Madhya Pradesh, Jabalpur through Registrar (1993) Supp 1 SCC 529; In re: Vinay Chandra Mishra (1995)

2 SCC 584 : [1995] 2 SCR 638; D. C. Saxena v. Chief Justice of India (1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677; Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 : [1998] 2 SCR 795; Arundhati Roy in Re (2002) 3 SCC 343 : [2002] 2 SCR 213; National Lawyers Campaign for Judical Transparency and Reforms and others v. Union of India and others (2019) SCC Online SC 411 – relied on.

Rex v. Almon 1765 Wilmot’s Notes of Opinions, 243 :

97 ER 94 – referred to.

3. Insofar as the alleged contemnor No. 2 is concerned, the explanation given by it is accepted, that it is only an intermediary and that it does not have any control on what the users post on the platform. It has also showed bona fides immediately after the cognizance was taken by this Court as it has suspended both the tweets. Therefore, the notice issued to the alleged contemnor No. 2 is discharged. [Para 76]