# [2020] 8 S.C.R. 443

- **Citation:** [2020] 8 S.C.R. 443
- **Court:** Supreme Court of India
- **Decided:** 2020-08-14
- **Bench:** Arun Mishra, B. R. Gavai, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2020-8-s-c-r-443-34851
- **Pages:** 67

## Headnote

Contempt of Court:
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
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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

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IN RE: PRASHANT BHUSHAN AND ANR.
(Suo Motu Contempt Petition (Crl.) No. 1 of 2020)
AUGUST 14, 2020
[ARUN MISHRA, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
Contempt of Court:
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
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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.
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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
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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
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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
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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
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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
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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
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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.
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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]
Case Law Reference
(2020) SCC Online SC 407
relied on
Para 17
[1988] 3 SCR 547
relied on
Para 18
[1953] SCR 1169
followed
Para 20
(1955) 1 SCR 677
followed
Para 23
[1971] 1 SCR 697
relied on
Para 24
[1971] Suppl. SCR 76
followed
Para 26
[1974] 2 SCR 282
followed
Para 28
[1978] 3 SCR 162
relied on
Para 38
[1988] 3 SCR 547
relied on
Para 44
(1993) Supp 1 SCC 529
relied on
Para 45
[1995] 2 SCR 638
relied on
Para 47
[1996] 3 Suppl. SCR 677
relied on
Para 49
[1998] 2 SCR 795
relied on
Para 53
[2002] 2 SCR 213
relied on
Para 55
(2019) SCC Online SC 411
relied on
Para 74
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INHERENT JURISDICTION: Suo Motu Contempt Petition (Crl.)
No. 1 of 2020.
Petition seeking initiation of contempt proceedings for willfully
and deliberately publicly passing the derogatory remark against the
Hon'ble Chief Justice of India (CJI).
K. K. Venugopal, Attorney General, Dushyant A. Dave, Sajan
Poovayya, Sr. Advs., Ms. Kamini Jaiswal, Manu Kulkarni, Priyadarshi
Banerjee, Ms. Hima Lawrence, Rishi Aneja, Advs. for the appearing
parties.
Prashant Bhushan-In-Person.
JUDGMENT
The following Judgment of the Court was delivered :
1. A petition came to be filed in this Court by one Mahek
Maheshwari bringing to the notice of this Court, a tweet made by
Mr. Prashant Bhushan, Advocate, alleged contemnor No.1 praying therein
to initiate contempt proceedings against the alleged contemnors for
wilfully and deliberately using hate/scandalous speech against this Court
and entire judicial system. The Registry placed the said petition on the
Administrative side of this Court seeking direction as to whether it should
be listed for hearing or not, as consent of the learned Attorney General
for India had not been obtained by the said Shri Maheshwari to file the
said petition. After examining the matter on the Administrative side, this
court on the administrative side directed the matter to be listed on the
Judicial side to pass appropriate orders. Accordingly, the petition was
placed before us on 22.7.2020. On the said date, we passed the following
order:
"This petition was placed before us on the administrative side
whether it should be listed for hearing or not as permission of the
Attorney General for India has not been obtained by the petitioner
to file this petition. After examining the matter on administrative
side, we have directed the matter to be listed before the Court to
pass appropriate orders. We have gone through the petition. We
find that the tweet in question, made against the CJI, is to the
following effect :-
"CJI rides a 50 Lakh motorcycle belonging to a BJP leader at
Raj Bhavan Nagpur, without a mask or helmet, at a time when
he keeps the SC in Lockdown mode denying citizens their
fundamental right to access justice!"
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Apart from that, another tweet has been published today in the
Times of India which was made by Shri Prashant Bhushan on
June 27, 2020, when he tweeted, "When historians in future look
back at the last 6 years to see how democracy has been destroyed
in India even without a formal Emergency, they will particularly
mark the role of the Supreme Court in this destruction, & more
particularly the role of the last 4 CJIs."
We are, prima facie, of the view that the aforesaid
statements on Twitter have brought the administration of justice
in disrepute and are capable of undermining the dignity and
authority of the Institution of Supreme Court in general and the
office of the Chief Justice of India in particular, in the eyes of
public at large.
We take suo motu cognizance of the aforesaid tweet also
apart from the tweet quoted above and suo motu register the
proceedings.
We issue notice to the Attorney General for India and to
Mr. Prashant Bhushan, Advocate also.
Shri Sajan Poovayya, learned senior counsel has appeared
along with Mr. Priyadarshi Banerjee and Mr. Manu Kulkarni,
learned counsel appearing on behalf of the Twitter, and submitted
that the Twitter Inc., California , USA is the correct description
on which the tweets were made by Mr. Prashant Bhushan. Let
the reply be also filed by them.
List on 05.08.2020."
2. In response to the notice issued by this Court, both the alleged
contemnors have filed their respective affidavit-in-reply. Mr. Prashant
Bhushan, the alleged contemnor No.1, has filed a detailed affidavit running
into 134 pages, which along with the Annexures runs into 463 pages.
3. The main contention of the alleged contemnor No.1 is, that
insofar as the first tweet is concerned, it was made primarily to underline
his anguish at the non-physical functioning of the Supreme Court for the
last more than three months, as a result of which 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. It is contended, that it was made to highlight the
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incongruity of the situation where the CJI on one hand keeps the court
virtually in lockdown due to COVID fears, with hardly any cases being
heard and those heard, also by an unsatisfactory process through video
conferencing and on the other hand is seen in a public place with several
people around him without a mask. It is his submission, that expressing
his anguish by highlighting the said incongruity and the attendant facts,
the first tweet cannot be said to constitute contempt of court. It is
submitted, that if it is regarded as a contempt, it would stifle free speech
and would constitute an unreasonable restriction on the right of a citizen
under Article l9(1)(a) of the Constitution.
4. Insofar as the second tweet dated 27.6.2020 is concerned, it is
his submission, that the said tweet has three distinct elements, each of
which is his bona fide opinion about the state of affairs in the country in
the past six years and the role of the Supreme Court and in particular the
role of the last 4 CJIs. It is submitted, that 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 4 Chief Justices in particular in allowing it. It is his
submission, that such an expression of opinion, however outspoken,
disagreeable or however unpalatable to some, cannot constitute contempt
of court. It is his contention, that it is the essence of a democracy that all
institutions, including the judiciary, function for the citizens and the people
of this country and they have every right to freely and fairly discuss the
state of affairs of an institution and build public opinion in order to reform
the institution.
5. It is further contended, that the Chief Justice is not the Supreme
Court and that raising issues of concern regarding the manner in which
a CJI conducts himself during court vacations, or raising issues of grave
concern regarding the manner in which four CJIs have used, or failed to
use, their powers as "Master of the Roster" to allow the spread of
authoritarianism, majoritarianism, stifling of dissent, widespread political
incarceration and so on, cannot and does not amount to "scandalising or
lowering the authority of the court". It is submitted, that the Court cannot
be equated with a Chief Justice, or even a succession of four CJIs. It is
submitted, that to bona fide critique the actions of a CJI, or a succession
of CJIs, cannot and does not scandalise the court, nor does it lower the
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authority of the Court. It is his submission, that to assume or suggest that
the CJI is the Supreme Court and the Supreme Court is the CJI is to
undermine the institution of the Supreme Court of India.
6. Insofar as alleged contemnor No.2, Twitter Inc. is concerned,
in the affidavit-in-reply filed on its behalf it is stated, that it is a global
website providing micro-blogging platform for self-expression of its users
and to communicate. It is further stated, that the alleged contemnor
No.2 has not authored or published the tweets in question and the same
have been authored and published by alleged contemnor No.1. It is also
submitted, that it is merely an 'intermediary' within the meaning as
provided under the Information Technology Act, 2000 and thus is not the
author or originator of the tweets posted on its platform. In this background
it has been submitted, that the alleged contemnor No.2 has no editorial
control on the tweets and merely acts as a display board. It is also
submitted, that under section 79 of the Information Technology Act, 2000
the alleged contemnor no.2 has been provided safe harbour as an
intermediary for any objectional posts on its platform posted by its users.
It is lastly submitted, that to show its bonafides, the alleged contemnor
No.2 after the order dated 22.07.2020 of this court, taking cognizance of
the impugned tweets, blocked the access to the said tweets and disabled
the same. In this premise it has been submitted, that alleged contemnor
No.2 be discharged from the present proceedings.
7. We have extensively heard Shri Dushyant Dave, learned Senior
Counsel appearing on behalf of the alleged Contemnor No.1 and Shri
Sajan Poovayya, learned Senior Counsel appearing on behalf of the alleged
contemnor No.2.
8. Shri Dave, learned Senior Counsel appearing on behalf of the
alleged contemnor No.1 raised a preliminary objection. He submitted,
that since the present proceedings are initiated on the basis of the petition
filed by Mr. Maheshwari, the same cannot be treated as a suo motu
contempt petition. He submitted, that unless there was a consent of the
learned Attorney General for India, the proceedings could not have been
initiated on the basis of complaint of Mr. Maheshwari.
9. Relying on the definition of 'criminal contempt' as is found in
the Contempt of Courts Act, 1971, Shri Dushyant Dave, learned Senior
Counsel, submits, that the order issuing notice does not state that any act
of the alleged contemnor No.1 scandalizes or tends to scandalize or
lowers or tends to lower the authority of any Court. Neither does it
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mention, that any of his act prejudices or interferes or tends to interfere
with, due course of any judicial proceeding or interferes or tends to
interfere with, or obstructs or tends to obstruct, the administration of
justice in any manner. He therefore submits, that, as such, the proceedings
initiated by this Court cannot continue.
10. Relying on the judgment of the Constitution Bench of this
Court in Brahma Prakash Sharma and Others vs. The State of Uttar
Pradesh1, Shri Dave submits, that what should weigh with the Court is
that, whether the reflection on the conduct or character of a judge is
within the limits of fair and reasonable criticism and whether it is mere
libel or defamation of the Judge. It is submitted, that if it is a mere
defamatory attack on the judge and is not calculated to interfere with
the due course of justice or the proper administration of the law by such
court, it is not proper to proceed by way of contempt. He would submit,
that in the present case, at the most, it can be said that the allegations in
the tweets are only against the present CJI and the past three CJIs and
that too, in their individual capacity and as such, in no way they can be
said to be calculated to interfere with the due course of justice or the
proper administration of the law by Court and therefore, it is not proper
to continue with the present contempt proceedings.
11. He submits, that in such a situation, the question is not to be
determined solely with reference to the language or contents of the
statement made. All the surrounding facts and circumstances under which
the statement was made and the degree of publicity which was given to
it would be relevant circumstances. He submits, that insofar as the first
tweet is concerned, the said was an expression of anguish by the alleged
contemnor No.1 on account of non-functioning of the physical courts
for the last more than three months and thereby, denying the right to
justice to the litigants. Insofar as the second tweet is concerned, in the
submission of Shri Dave, that the said was an expression of his opinion
that on account of the action or inaction of the Four CJIs that contributed
to the destruction of democracy in the country, without a formal
emergency.
12. Relying on the Constitution Bench judgment of this Court in
the case of Baradakanta Mishra vs The Registrar Of Orissa High
Court & another2, learned Senior Counsel submits, that when proceedings
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in contempt are taken for vilification of the judge, the question which the
court has to ask is whether the vilification is of the judge as a judge or it
is the vilification of the judge as an individual. He submits, that if the
vilification of the judge is as an individual, then he is left to his private
remedies and the Court has no power to punish for contempt. It is
submitted, that however, in the former case, the Court will proceed to
exercise the jurisdiction with scrupulous care and in cases which are
clear and beyond reasonable doubt. It is submitted, in the present case,
the vilification, if any, is against the CJI as an individual and not as a CJI
of the Supreme Court and as such, the proceedings of the Court would
not be tenable.
13. Relying on the observations made by Justice Krishna Iyer in
Re: S. Mulgaokar3, learned Senior Counsel submits, that the court should
be willing to ignore, by a majestic liberalism, trifling and venial offences.
It is submitted, that the Court will not be prompted to act as a result of an
easy irritability. Rather, it shall take a noetic look at the conspectus of
features and be guided by a constellation of constitutional and other
considerations when it chooses to use, or desist from using, its power of
contempt. He submits, that this Court had held, that to criticize the judge
fairly, albeit fiercely, is no crime but a necessary right, twice blessed in a
democracy. He submits, that where freedom of expression, fairly
exercised, subserves public interest in reasonable measure, public justice
cannot gag it or manacle it.
14. Shri Dave, learned Senior Counsel, submits, that in the case
of P.N. Duda vs. P. Shiv Shanker & Others4, the then Minister of
Law, Justice and Company Affairs P. Shiv Shankar had made a speech
making fierce allegations to the effect, that the Supreme Court was
composed of elements from the elite class, that because they had their
'unconcealed sympathy for the haves' they interpreted the expression
'compensation' in the manner they did. He submits, that the Supreme
Court held, that the said was an expression of opinion about an institutional
pattern. It is submitted, that even in spite of such serious allegations
made, the Court found that the case of proceeding for contempt was not
made out.
15. Lastly, Shri Dave submits, that taking into consideration the
fact, that the alleged contemnor No.1 in his practice at the Supreme
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Court and the Delhi High Court had consistently taken up many issues
of public interest concerning the health of democracy and its institutions
and in particular the functioning of the judiciary and especially its
accountability, this Court should not proceed against him.
16. The legal position is no more res integra.
17. Insofar as the contention of the learned Senior Counsel
appearing for the alleged contemnor No.1, that in the present case, the
Court could not have initiated suo motu proceedings and could have
proceeded on the petition filed by Mr. Mahek Maheshwari only after the
consent was obtained from the learned Attorney General for India is
concerned, very recently, a Bench of this Court has considered identical
submissions in the case of Re: Vijay Kurle & Ors.5 The Bench has
considered various judgments of this Court on the issue, in detail.
Therefore, it will be apposite to refer to the following paragraphs of the
judgment wherein the earlier law has been discussed in extenso:
"Powers of the Supreme Court
7. Before we deal with the objections individually, we need to
understand what are the powers of the Supreme Court of India in
relation to dealing with contempt of the Supreme Court in the light
of Articles 129 and 142 of the Constitution of India when read in
conjunction with the Contempt of Courts Act, 1971. According to
the alleged contemnors, the Contempt of Courts Act is the final
word in the matter and if the procedure prescribed under the
Contempt of Courts Act has not been followed then the proceedings
have to be dropped. On the other hand, Shri Sidharth Luthra,
learned amicus curiae while making reference to a large number
of decisions contends that the Supreme Court being a Court of
Record is not bound by the provisions of the Contempt of Courts
Act. The only requirement is that the procedure followed is just
and fair and in accordance with the principles of natural justice.
Article 129 of the Constitution of India reads as follows:
"129.