# [2020] 8 S.C.R. 510

- **Citation:** [2020] 8 S.C.R. 510
- **Court:** Supreme Court of India
- **Decided:** 2020-08-31
- **Bench:** Arun Mishra, B. R. Gavai, Krishna Murari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2020-8-s-c-r-510-34852
- **Pages:** 73

## Headnote

Contempt of Court - Criminal Contempt of Court - In suo
motu proceedings, Contemnor (an advocate) held guilty by Supreme
Court - Court granted time to Contemnor to make unconditional
apology, if he so desired - Contemnor filed supplementary statement
reiterating that his statements in twitter were bonafide and pleaded
truth as valid defence - Held: The twin requirement for considering
the truth as valid defence, as per s. 13 of Contempt of Courts Act,
1971, is that such defence is in public interest and the request for
invoking such defence is bona fide - In the facts of the case, the
defence taken cannot be said to be either in public interest or
bonafide, rather the Contemnor has indulged in making reckless
allegations further aggravating the contempt - Even after conviction
order, no remorse expressed nor apology submitted - A simple
warning is not going to suffice in the present case - Duly balancing
the factors as to the offender, offence and convicting judgment and
the defence taken and in view of conduct of the contemnor, showing
magnanimity, the Court, instead of imposing severe punishment,
sentenced the contemnor with a nominal fine of Rs. 1/- - On default
the Contemnor to undergo simple imprisonment for a period of 3
months and further be debarred from participating in Supreme Court
for a period of 3 years.
Judiciary - Though a fair criticism of judgment is permissible
in law, a person cannot exceed the right u/Art.19(1)(a) to scandalize
the institution - Constitution of India - Art.19(1)(a).
Judiciary - If a scathing attack is made on the judges, it
would become difficult for them to work fearlessly and with the
objectivity of approach to the issues - The judgment can be criticized
- However, motives to the Judges need not be attributed, as it brings
administration of justice into disrepute - Administration of Justice.
Advocates / Legal Profession - Lawyers, as a class, are looked
by the public as intelligentsia.
Constitution of India - Art.19(1)(a) - Free Speech is part of
Art. 19(1)(a) - However, it cannot be said that while exercising
power u/Art.129, the Court is interfering with the rights under
Art.19(1)(a) - Supreme Court being a court of record can punish
510
[2020] 8 S.C.R. 510
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for contempt - Free Speech is essential to democracy, but it cannot
denigrate one of the institutions of the democracy.
Constitution of India - Art.129 - While exercising powers u/
Art.129, the Court will have to strike a balance between the right u/
Art.19(1)(a) and restrictions under Art.19(2) - Constitution of India
- Art.19(1)(a) and 19(2).
Advocates / Legal Profession - Role and duty of - Held:
Lawyers' noble profession will lose all its significance and charm
and dignity if the lawyers are permitted to make any malicious,
scandalous and scurrilous allegations against the institution of
which they are part - Lawyers are supposed to be fearlessly
independent and robust but at the same time respectful to the
institution.
Judiciary - Interference with judicial process - Release of
statement to press in advance - Held: In a sub judice matter,
releasing statement to the press in advance is an act of impropriety
and has the effect of interfering with the judicial process and the
fair decision making and is clearly an attempt to coerce the decision
of the Court by the influence of newspaper and media, which cannot
be said to be conducive for fair administration of justice and would
further tantamount to undue interference in the independent judicial
making process which is the very foundation of institution of
administration of justice - Administration of Justice.
Contempt of Court - Criminal contempt - Apology - Held:
The Court has to be satisfied as to the genuineness of the apology
to make an order that contemnor has purged himself of the contempt.
Administration of Justice - It is not expected of a person who
is a part of the system of administration of justice and who owes a
duty to the said system, to make tw

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IN RE: PRASHANT BHUSHAN AND ANR.
(Suo Motu Contempt Petition (Crl.) No. 1 of 2020)
AUGUST 31, 2020
[ARUN MISHRA, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
Contempt of Court - Criminal Contempt of Court - In suo
motu proceedings, Contemnor (an advocate) held guilty by Supreme
Court - Court granted time to Contemnor to make unconditional
apology, if he so desired - Contemnor filed supplementary statement
reiterating that his statements in twitter were bonafide and pleaded
truth as valid defence - Held: The twin requirement for considering
the truth as valid defence, as per s. 13 of Contempt of Courts Act,
1971, is that such defence is in public interest and the request for
invoking such defence is bona fide - In the facts of the case, the
defence taken cannot be said to be either in public interest or
bonafide, rather the Contemnor has indulged in making reckless
allegations further aggravating the contempt - Even after conviction
order, no remorse expressed nor apology submitted - A simple
warning is not going to suffice in the present case - Duly balancing
the factors as to the offender, offence and convicting judgment and
the defence taken and in view of conduct of the contemnor, showing
magnanimity, the Court, instead of imposing severe punishment,
sentenced the contemnor with a nominal fine of Rs. 1/- - On default
the Contemnor to undergo simple imprisonment for a period of 3
months and further be debarred from participating in Supreme Court
for a period of 3 years.
Judiciary - Though a fair criticism of judgment is permissible
in law, a person cannot exceed the right u/Art.19(1)(a) to scandalize
the institution - Constitution of India - Art.19(1)(a).
Judiciary - If a scathing attack is made on the judges, it
would become difficult for them to work fearlessly and with the
objectivity of approach to the issues - The judgment can be criticized
- However, motives to the Judges need not be attributed, as it brings
administration of justice into disrepute - Administration of Justice.
Advocates / Legal Profession - Lawyers, as a class, are looked
by the public as intelligentsia.
Constitution of India - Art.19(1)(a) - Free Speech is part of
Art. 19(1)(a) - However, it cannot be said that while exercising
power u/Art.129, the Court is interfering with the rights under
Art.19(1)(a) - Supreme Court being a court of record can punish
510
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for contempt - Free Speech is essential to democracy, but it cannot
denigrate one of the institutions of the democracy.
Constitution of India - Art.129 - While exercising powers u/
Art.129, the Court will have to strike a balance between the right u/
Art.19(1)(a) and restrictions under Art.19(2) - Constitution of India
- Art.19(1)(a) and 19(2).
Advocates / Legal Profession - Role and duty of - Held:
Lawyers' noble profession will lose all its significance and charm
and dignity if the lawyers are permitted to make any malicious,
scandalous and scurrilous allegations against the institution of
which they are part - Lawyers are supposed to be fearlessly
independent and robust but at the same time respectful to the
institution.
Judiciary - Interference with judicial process - Release of
statement to press in advance - Held: In a sub judice matter,
releasing statement to the press in advance is an act of impropriety
and has the effect of interfering with the judicial process and the
fair decision making and is clearly an attempt to coerce the decision
of the Court by the influence of newspaper and media, which cannot
be said to be conducive for fair administration of justice and would
further tantamount to undue interference in the independent judicial
making process which is the very foundation of institution of
administration of justice - Administration of Justice.
Contempt of Court - Criminal contempt - Apology - Held:
The Court has to be satisfied as to the genuineness of the apology
to make an order that contemnor has purged himself of the contempt.
Administration of Justice - It is not expected of a person who
is a part of the system of administration of justice and who owes a
duty to the said system, to make tweets capable of shaking the
confidence of general public and further making wild allegations
in affidavit thereby further attempting to malign the institution.
Rule of Law - Supremacy of - Strong arm of the law strikes
a blow on him who challenges supremacy of the rule of law by
fouling its source and stream - Court has to act only where attack
is beyond a permissible limit.
Disposing of the contempt proceedings, the Court
HELD: 1.1 Section 13 of Contempt of Courts Act, 1971
would show that for considering the truth as valid defence there
is a twin requirement. That such a defence is in public interest
and that the request for invoking the said defence is bona fide.
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On the examination of the defence of the contemnor, the Court
concurs with the submission made by the Attorney General that
the defence cannot be said to be either in the public interest or a
bona fide one. In this respect it will also be pertinent to note that
when the counsel for the contemnor was heard in presence, he
had fairly stated that he would not read further averments in the
affidavit in reply of the contemnor because it will further malign
the reputation of this Court. Thus, the view of the Attorney
General that the defence should be taken off the record is
endorsed. Though the tweet was of two lines, the affidavit in reply
refers to series of allegations made by the contemnor with regard
to the functioning of a large number of retired as well as sitting
Judges including the Chief Justices as to their role on the judicial
as well as on administrative side. If the averments are considered
for taking truth as a defence, it would amount nothing else but
the aggravation of the contempt. Therefore, the defence taken
cannot be said to be either in the public interest or bona fide one.
On the contrary, it is more derogatory to the reputation of this
Court and would amount to further scandalizing and bringing
administration of justice in disrepute, in which the common citizen
of this country has faith and approaches this Court as a last resort
for getting justice. As the averments are based on political
consideration, and therefore cannot be considered to support the
case of the contemnor of truth as a defence. The allegations made
are scandalous and are capable of shaking the very edifice of the
judicial administration and also shaking the faith of common man
in the administration of justice. [Paras 20, 26-28, 32 and 33][534G-H; 538-C-H; 539-D-E]
Indirect Tax Practitioners' Association v. R.K. Jain
(2010) 8 SCC 281; Subramanian Swamy v. Arun
Shourie (2014) 12 SCC 344 : [2014] 13 SCR 581 -
referred to.
1.2 Though there is a Freedom of Speech, freedom is never
absolute because the makers of the Constitution have imposed
certain restrictions upon it. Particularly when such Freedom of
Speech is sought to be abused and it has the effect of scandalising
the institution as a whole and the persons who are part of the
said institution and cannot defend themselves publicly, the same
cannot be permitted in law. Though a fair criticism of judgment is
permissible in law, a person cannot exceed the right under Article
19(1)(a) of the Constitution to scandalize the institution.
[Para 34][539-F-G]
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1.3 The norms of judicial conduct provide that Judges cannot
express an opinion in the public. The Judges have to express
their opinion by their judgments, and they cannot enter into public
debate or go to press. It is very easy to make any allegation
against the Judges in the newspaper and media. Judges have to
be the silent sufferer of such allegations, and they cannot counter
such allegations publicly by going on public platforms, newspapers
or media. Nor can they write anything about the correctness of
the various wild allegations made, except when they are dealing
with the matter. Retired Judges do have the prestige that they
have earned by dint of hard work and dedication to this institution.
They are also not supposed to be answering each and every
allegation made and enter into public debate. Thus, it is necessary
that when they cannot speak out, they cannot be made to suffer
the loss of their reputation and prestige, which is essential part
of the right to live with dignity. The Bar is supposed to be the
spokesperson for the protection of the judicial system. They are
an integral part of the system. The Bar and Bench are part of the
same system i.e. the judicial system, and enjoy equal reputation.
If a scathing attack is made on the judges, it would become difficult
for them to work fearlessly and with the objectivity of approach
to the issues. The judgment can be criticized. However, motives
to the Judges need not be attributed, as it brings the
administration of justice into disrepute. [Para 35][539-H; 540-AD]
C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and
Others, (1995) 5 SCC 457 : [1995] 3 Suppl. SCR 319;
Pravin C. Shah v. K.A. Mohd Ali and Another (2001) 8
SCC 650 : [2001] 3 Suppl. SCR 675 - relied on.
Halsbury's Laws of England, Fourth Edition, Volume
9, in para 27 - referred to.
1.4 The plea of the contemnor was that if defence of good
faith, as provided in Section 3(22) of the General Clauses Act is
taken into consideration, it will have to be held that the act done
by the contemnor was done in good faith if it was done honestly,
may be done negligently. The perusal of the comments can neither
be said to be done honestly or in good faith. It cannot be said that
a person who is the lawyer having 35 years standing, who has
made malicious and scandalous comments in the tweets and
amplified them by the averments made in the affidavit in reply
which have the effect of denigrating the very institution to which
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he belongs, can be made honestly or in good faith. [Para 82][577G-H; 578-A-B]
Reynolds v. Times Newspapers Ltd. and Others (1999)
4 All ER 609 - referred to.
 1.5 The contemnor has tried to justify the averments made
on the basis of the Press Conference dated 12.01.2018 of the
four senior-most Judges of this Court. Concept of equality before
law, what is permissible not as to what is impermissible. It is
settled that negative equality cannot be claimed as there is no
concept of negative equality. Truth can be the defence to the
Judges also, but they are bound by their judicial norms, ethics,
and code of conduct. Similarly, the code of conduct for advocates
is equally applicable to the lawyers, being part of the system.
The Rules of Professional Ethics formed by the Bar Council,
though couched under statutory power, are themselves not
enough to prescribe or proscribe the nobility of profession in
entirety. The nobility of profession encompasses, over and above,
the Rules of Ethics. Lawyers, as a class, are looked by the public
as intelligentsia. [Para 44][552-D-G]
R. Muthukrishnan v. The Registrar General of The High
Court of Judicature at Madras (2019) 16 SCC 407 :
[2019] 1 SCR 589; Tehseen Poonawalla v. Union of
India & Another (2018) 6 SCC 72 : [2018] 9 SCR 1 -
relied on.
1.6 The defence taken in the affidavit cannot be said to be
either bona fide or in the public interest. Both the tweets coupled
with averments in the reply affidavit are capable of shaking the
confidence of the public in the institution as a whole. The second
tweet is capable of creating an impression that the entire Supreme
Court in the last six years has played a vital role in the destruction
of democracy. [Para 50][565-E-F]
Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC
156 : [2017] 13 SCR 189; D. C. Saxena v. Chief Justice
of India (1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677
- relied on.
2.1 It cannot be disputed that Free Speech is part of Article
19(1)(a) of the Constitution. However, it cannot be said that while
exercising power under Article 129 of the Constitution, the Court
is interfering with the rights under Article 19(1)(a) of the
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Constitution. Supreme Court being a court of record can punish
for contempt. Free Speech is essential to democracy can also not
be disputed, but it cannot denigrate one of the institutions of the
democracy. Democracy is based on free debate and open
discussion, however, cannot go to the extent of the scurrilous
attack and shaking the faith of the general public in such institution.
Freedom of speech and expression includes the right to impart
and receive information, which includes freedom to hold an
opinion. No doubt, one is free to form an opinion and make fair
criticism but if such an opinion is scandalous and malicious, the
public expression of the same would also be at the risk of the
contempt jurisdiction. No doubt that free speech, as envisaged
under Article 19(1)(a) of the Constitution is a fundamental right.
However, it cannot be forgotten that rights under Article 19(1) of
the Constitution are subject to reasonable restrictions under
Article 19(2) of the Constitution and rights of others cannot be
infringed in the process. The same have to be balanced. While
exercising the powers under Article 129 of the Constitution, the
Court will have to strike a balance between the right under Article
19(1)(a) and the restrictions under Article 19(2) of the
Constitution. Freedom of press is also an important aspect in a
democracy. One cannot control the thinking process and words
operating in the mind of one individual, but when it comes to
expression, it has to be within the constitutional limits. Lawyers'
noble profession will lose all its significance and charm and dignity
if the lawyers are permitted to make any malicious, scandalous
and scurrilous allegations against the institution of which they
are part. The lawyers are supposed to be fearlessly independent
and robust but at the same time respectful to the institution.
[Para 81][576-G-H]
Maneka Gandhi v. Union of India and Another (1978)
1 SCC 248 : [1978] 2 SCR 621- followed.
Secretary, Ministry of Information and Broadcasting,
Government of India & Ors. v. Cricket Association of
Bengal & Ors., (1995) 2 SCC 161 : [1995] 1 SCR 1036
- relied on.
2.2. The Court has weighed the pros and cons, rights, and
limitations and thereafter rendered a considered decision
regarding conviction. On consideration of proportionality there
is no room to entertain the submission that applying the doctrine
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of proportionality the balance will have to tilt in favour of the
fundamental rights as against restrictions and that reasonableness
means substantive and procedural reasonableness and imports
proportionality. [Para 83][578-C; 578-F]
State of Madras & Ors. v. V.G. Row (1952) SCR 597,
Chintaman Rao & Ors. v. State of Madhya Pradesh
[1950] SCR 759, Papnasam Labour Union v. Madura
Coats Ltd. and Ors. (1995) 1 SCC 501 : [1994] 6 Suppl.
SCR 369, State of Andhra Pradesh & Ors. v. McDowell
and Co. & Ors. (1996) 3 SCC 709 : [1996] 3 SCR
721, Union of India (UOI) & Ors. v. G. Ganayutham
(Dead) by Lrs. (1997) 7 SCC 463 : [1997] 3 Suppl.
SCR 549; Teri Oat Estates (P) Ltd. v. U.T. Chandigarh
& Ors. (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235;
Om Kumar & Ors. v. Union of India (UOI) (2001) 2
SCC 386 : [2000] 4 Suppl. SCR 693, Anuj Garg &
Ors. v. Hotel Association of India & Ors. (2008) 3 SCC
1 : [2007] 12 SCR 991; Chairman, All India Railway
Rec. Board & Ors. v. K. Shyam Kumar & Ors. (2010) 6
SCC 614 : [2010] 6 SCR 291 - referred to.
3. The lawyers and litigants going to press or media in a
sub judice matter is another question that is at the fore in this
matter. While hearing the matter, the contemnor talked to the
press and media. The statement which was made by him pursuant
to the order dated 20.08.2020, was also published well in advance
in extenso, word to word, in the newspaper and media. In a sub
judice matter, releasing such statement to the press in advance
is an act of impropriety and has the effect of interfering with the
judicial process and the fair decision making and is clearly an
attempt to coerce the decision of the Court by the influence of
newspaper and media, which cannot be said to be conducive for
the fair administration of justice and would further tantamount to
undue interference in the independent judicial making process
which is the very foundation of institution of administration of
justice. If such kind of action is resorted to in a sub judice matter,
that too by an advocate who is facing a criminal contempt, it
virtually tantamount to using a forum or platform which is not
supposed to be used ethically and legally. More so, in a serious
case of criminal contempt and particularly after the conviction
has been recorded by this Court, it indicates that the tolerance
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of the Court is being tested for no good reasons by resorting to
unscrupulous methods. [Para 66][572-C-G]
4. So far as the inconsistency between the judgments of
this Court in *E.M. Sankaran Namboodripad and **P.N. Duda
cases is concerned, the legal position enunciated in both the
judgments is one and the same. May be in one case by applying
the same law the court found the statements made were
contemptuous and in other case the Court found that the
statement made was not contemptuous. [Para 71][573-G-H; 574A]
*E.M. Sankaran Namboodripad v. T. Narayanan
Nambiar (1970) 2 SCC 325 : [1971] 1 SCR 697; **P.N.
Duda v. P. Shiv Shanker & Others (1988) 3 SCC 167 :
[1988] 3 SCR 547 - relied on.
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963; Baradakanta Mishra v. Registrar
of Orissa High Court & another (1974) 1 SCC 374 :
[1974] 2 SCR 282; 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 - referred to.
5. The pleas of the contemnor that contempt jurisdiction is
vague and colonial, in effect amount to reviewing the view taken
by the Court in the convicting judgment. The Court need not
again consider the submissions, inasmuch as all his submissions
have been elaborately considered in the convicting judgment.
The Court has exercised the jurisdiction with full circumspection,
care, and precautions. While sentencing, the Court has to act
with objectivity in relation to the person and the actual effect.
Therefore, the Court cannot accede to the request that the
decision dated 14.08.2020 should be withdrawn or recalled.
[Paras 72, 74 and 75][574-D; 574-G-H; 575-A]
Murray & Co. v. Ashok Kumar Newatia and Another
(2000) 2 SCC 367 : [2000] 1 SCR 367 - relied on.
R. v. Almon (1965) Wilm 243; Mcleod v. St. Aubyn
(1899) AC 549 (PC), R. v. Gary (1900) 2 QB 36 DC;
R. v. Colsely 9 May 1931 DC, Dhoorika v. Director of
Public Prosecutions (Commonwealth Lawyers'
Association Intervening); (2015) AC 875, R. v.
Blackburn (1968) 1 ALL ER 763 - referred to.
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6. The question that there is no conflict between the
constitutional jurisdiction under Articles 129 and 215 of the
Constitution and the provisions of the Contempt of Courts Act,
1971 has been dealt with in the convicting judgment and what is
the procedure under Articles 129 and 215 of the Constitution
has been considered in #Vijay Kurle case. [Paras 76 and 78] [575B-C; 575-H]
Pallav Sheth v. Custodian & Ors. (2001) 7 SCC 549 :
[2001] 1 Suppl. SCR 387 (76); Maheshwari Peri &
others v. High Court of Judicature at Allahabad
(2016) 14 SCC 251 : [2016] 3 SCR 213 (77) - referred
to.
#In Re: Vijay Kurle and Ors., (2020) SCC Online SC
407 - relied on
7. It will not be of any relevance as to whether a copy of the
Contempt Petition was supplied or not. No doubt that though
initially a Contempt Petition was filed in this Court which was
placed on the administrative side of this Court, this Court had
decided to initiate suo motu proceedings. Only that part of the
petition i.e. the first tweet made by the contemnor was one of the
basis for taking action against the contemnor. The relevant tweet
has specifically been mentioned in the order dated 22.07.2020.
No other part of the petition was taken into consideration for
proceeding against the contemnor. Insofar as the second tweet
is concerned, which was on the basis of the report published in
the Time of India dated 22.07.2020, the Court had decided to
take suo motu cognizance of the same. The only requirement is
that the Court must follow principles of natural justice. The Court
specifically made aware the contemnor about the basis on which
the Court took suo motu cognizance. Not only that but the
contemnor understood the basis on which the Court was
proceeding, as is evident from the affidavit in reply filed by him.
[Para 80][576-C-G]
8.1 Merely undergoing the penalty imposed on a contemnor
is sufficient to complete the process of purging himself for the
contempt. In case of sentence of fine, the contemnor can pay the
fine and continue to persist with contemptuous conduct again
and again. Something more is required to purge the criminal
contempt. Even a statement of apology is not enough to purge
the contempt. The Court has to be satisfied as to the genuineness
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of the apology to make an order that contemnor has purged
himself of the contempt. Before contempt is purged, the advocate
could suffer the consequences of Rule 11 of the Rules framed
under Section 34(1) of Advocates Act, 1961, which postulates
that in case the advocate has been found guilty of contempt of
court, his authority to act or plead in any court stands snapped.
[Para 38][548-F-H; 549-A]
Pravin C. Shah v. K.A. Mohd Ali and Another (2001) 8
SCC 650 : [2001] 3 Suppl. SCR 675; Bar Council of
India v. High Court of Kerala (2004) 6 SCC 311 : [2004]
1 Suppl. SCR 649; Supreme Court Bar Association v.
Union of India (1998) 4 SCC 409 : [1998] 2 SCR 795;
Roshan Lal Ahuja, In Re: (1993) Supp. 4 SCC 446 :
[1992] 3 Suppl. SCR 257 - relied on.
'Restatement of Values of Judicial Life' adopted in
the Chief Justices' Conference at New Delhi on
September 18-19, 1992 - referred to.
8.2 One of the attending circumstances which is required
to be taken into consideration while sentencing is the person
who makes the statement. It is not expected of a person who is a
part of the system of administration of justice and who owes a
duty to the said system, to make such tweets which are capable
of shaking the confidence of general public and further making
wild allegations in the affidavit thereby further attempting to malign
the said institution. Such an act by responsible person who is
part of this system cannot be ignored or overlooked.
[Para 51][565-G-H]
8.3 There is no justification to make such a remark/tweet,
particularly when it is made by a lawyer with 35 years standing,
who is an officer of the Court and advocates enjoy equal dignity
in the system. In spite of Attorney General's insistence that the
averments made in the defence should be withdrawn and regret
should be submitted, the Counsel for the contemner stated that
the contemnor is not ready to withdraw the defence taken in the
reply. That further makes it clear that while insisting with the
unjustifiable defence and insistence to go with it makes the entire
episode the one which cannot be ignored. [Para 52][566-A-B]
8.4 Merely because a lawyer is involved in the filing of the
public interest litigation for the public good it does not arm him
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to harm the very system of which he is a part. Though expectation
from an ordinary citizen may be different, the duties and
expectations that are expected from a lawyer of long standing
are on higher side. An advocate cannot forget his ethical duty
and responsibility and cannot denigrate the very system of which
he/she is an integral part. Fair criticism is not to be silenced, but
an advocate has to remind himself/herself, where he/she crosses
the zone of propriety, and the Court cannot continuously ignore
it, and the system cannot be made to suffer. When the criticism
turns into malicious and scandalous allegations thereby tending
to undermine the confidence of the public and the institution as a
whole, such a criticism cannot be ignored. [Para 53][566-C-E]
8.5 As regards the plea of the contemner that the Court
should consider the various statements made by some of the
retired Judges, journalists, and others, is founded on the fact
that the Court should be influenced by the opinion expressed in
the newspapers and other media, when the Court is hearing a
matter. The Court cannot be guided by such opinions expressed
on the public platform and the Court while exercising its judicial
duties does not render its decision on the basis of the trial made
by the media and public opinion. The Court cannot abdicate its
duty and has to be uninfluenced by the statements published in
various articles published in the media and opinions expressed
therein. It has to decide the case uninfluenced by such opinions.
[Para 54][566-F-H; 567-A]
Attorney-General v. Times Newspaper Ltd. (1973) 3 All
ER 54 - referred to.
8.6 The Court is unmoved by the plea that this Court will
be criticized, in case it inflicts any punishment upon the
contemnor. While exercising judicial functions, the Court cannot
take into consideration whether it will be praised or criticized for
the judgment which it renders. The Court is required to decide
the cases on the basis of the law as it correctly stands, in its
perception and understanding. The Court has to be always ready
for its fair criticism. [Para 57][567-G-H; 568-A]
R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC
106 : [2009] 11 SCR 1026; Reliance Petrochemicals
Ltd. v. Proprietors of Indian Express News-Papers
Bombay Pvt. Ltd. and others (1988) 4 SCC 592 : [1988]
3 Suppl. SCR 212; State of Maharashtra v. Rajendra
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Jawanmal Gandhi (1997) 8 SCC 386 : [1997] 4 Suppl.
SCR 68; Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90
- relied on.
Contempt of Court, Third Edition by C.J. Miller - referred
to.
8.7 The plea was taken that relevant factors required to be
taken into consideration for sentencing are the offender, the
offence and statutory or other defences. With respect to the
offender, he is a lawyer having of 35 years of standing and has
also pursued various public interest litigations. No doubt that
this would be a relevant factor while balancing the decision to be
taken by the Court. However, at the same time, the uncalled
statements made in the affidavit for pursuing truth as a defence
can also not be ignored. Since, in 2009 contempt petition various
questions have been framed by this Court which will have to be
answered, the pendency of the said contempt petition cannot be
considered to be a factor in reflecting on the question of sentence
in the present matter. Even the present Attorney General had
filed a contempt case against the contemnor which is pending
before this Court. [Paras 68 and 69][573-C-E]
Re: Times of India and Hindu (2013) Cr.L.J. 932 -
distinguished.
8.8 Even after recording the judgment of conviction, no
remorse has been expressed by the contemnor, nor apology has
been submitted. It was argued that apology is being coerced from
the contemnor. In the supplementary statement dated 24.08.2020,
the contemnor has stated that "At the hearing the court asked
me to take 2-3 days to reconsider the statement I made in the
court." However, the order specifically states, "We have given
time to the contemnor to submit unconditional apology, if he so
desires." It is a settled position of law that the Court speaks
through its judgments and orders. Virtual exchange during the
course of the proceedings is not what is the order of the Court
but it could be a tentative expression of that exchange during
the course of hearing. However, ultimately what is final is the
order of the Court, which has the seal of it. It would have been
better if the aforesaid part was not mentioned in the supplementary
statement, but the Court cannot stop anybody from making any
statement, but it is not a proper statement as to what should
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have been the words in the order of the Court. The Court has
not coerced the contemnor to submit the apology and has clearly
mentioned that time was given to submit unconditional apology,
"if he so desires". It was his decision to submit it or not. However,
he has chosen to submit a supplementary statement. The desire
of the Attorney General that he/contemnor should withdraw the
allegation and express regret, has also gone unheeded. Simple
issuance of warning is not going to suffice in the instant case.
[Paras 84 and 87][579-C-H; 581-B]
Andre Paul Terence Ambard v. The Attorney General of
Trinidad and Tobago (1936) All ER 704 - referred to.
8.9 No doubt that while exercising the right of freedom of
speech the fair criticism of the system is welcome and the Judges
cannot be hyper sensitive even when distortions and criticism
overstep the limit. However, the same cannot be stretched to
permit to make malicious and scandalous statement. The Court
has to act only in the case where the attack is beyond a permissible
limit, the strong arm of the law strikes a blow on him who
challenges the supremacy of the rule of law by fouling its source
and stream. The Court has applied the aforesaid guidelines and
standards. [Paras 85 and 86][580-A-C]
Re: S. Mulgaokar (1978) 3 SCC 339 : [1978] 3 SCR
162 - referred to.
8.10 Pursuant to the conviction in a criminal case, the Bar
Council of India can suspend the enrolment, if it so desires. It is
also open to this Court to debar from practicing in a Court. The
Court is not afraid of sentencing the contemnor either with
imprisonment or from debarring him from the practice. His
conduct reflects adamance and ego, which has no place to exist
in the system of administration of justice and in noble profession,
and no remorse is shown for the harm done to the institution to
which he belongs. At the same time, the Court cannot retaliate
merely because the contemnor has made a statement that he is
neither invoking the magnanimity or the mercy of this Court and
he is ready to submit to the penalty that can be lawfully be inflicted
upon him for what the Court has determined to be an offence.
[Para 89][581-C-E]
Supreme Court Bar Association v. Union of India (1998)
4 SCC 409 : [1998] 2 SCR 795 - relied on.
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8.11 The Court, from the very beginning, was desirous of
giving quietus to this matter. Directly or indirectly, the contemnor
was persuaded to end this matter by tendering an apology and
save the grace of the institution as well as the individual, who is
an officer of the Court. However, for the reasons best known to
him he has neither shown regret in spite of persuasion or the
advice of the Attorney General. Thus, the Court has to consider
imposing an appropriate sentence upon him. Duly balancing the
factors as to the offender, offence, the convicting judgment and
the defence taken the Court has to decide the question of
sentence. The act committed by the contemnor is a very serious
one. He has attempted to denigrate the reputation of the
institution of administration of justice of which he himself is a
part. [Paras 90 and 91][581-F-H; 582-A]
8.12 Taking into consideration the conduct of the contemnor
if the Court does not take cognizance of such conduct, it will give
a wrong message to the lawyers and litigants throughout the
country. However, by showing magnanimity, instead of imposing
any severe puishment, the contemnor is sentenced with a nominal
fine of Re.1/- (Rupee one). The same is to be deposited with the
Registry of this Court failing which he shall undergo a simple
imprisonment for a period of three months and further be debarred
from practising in this Court for a period of three years.
[Paras 92 and 93][582-F-G]
Case Law Reference
[2015] 5 SCR 963
referred to
Para 2 (iv)
[1974] 2 SCR 282
referred to
Para 2 (iv)
[1953] SCR 1169
referred to
Para 2 (vi)
[1955] 1 SCR 677
referred to
Para 2(vi)
(2010) 8 SCC 281
referred to
Para 22
[2014] 13 SCR 581
referred to
Para 23
[1995] 3 Suppl. SCR 319
relied on
Para 36
[2001] 3 Suppl. SCR 675
relied on
Para 37
[2004] 1 Suppl. SCR 649
relied on
Para 41
[1998] 2 SCR 795
relied on
Para 41
[1992] 3 Suppl. SCR 257
relied on
Para 42
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[2019] 1 SCR 589
relied on
Para 44
[2018] 9 SCR 1
relied on
Para 46
[2017] 13 SCR 189
relied on
Para 48
[1996] 3 Suppl. SCR 677
relied on
Para 48
[2009] 11 SCR 1026
relied on
Para 59
[1988] 3 Suppl. SCR 212
relied on
Para 59
[1997] 4 Suppl. SCR 68
relied on
Para 61
[2009] 9 SCR 90
relied on
Para 62
[1971] 1 SCR 697
relied on
Para 71
[1988] 3 SCR 547
relied on
Para 71
[2000] 1 SCR 367
relied on
Para 75
[2001] 1 Suppl. SCR 387
referred to
Para 76
[2016] 3 SCR 213
referred to
Para 77
(2020) SCC Online SC 407
relied on
Para 78
[1978] 2 SCR 621
followed
Para 81
[1995] 1 SCR 1036
relied on
Para 81
[1952] SCR 597
referred to
Para 83
[1950] SCR 759
referred to
Para 83
[1994] 6 Suppl. SCR 369
referred to
Para 83
[1996] 3 SCR 721
referred to
Para 83
[1997] 3 Suppl. SCR 549
referred to
Para 83
[2003] 6 Suppl. SCR 1235
referred to
Para 83
[2000] 4 Suppl. SCR 693
referred to
Para 83
[2007] 12 SCR 991
referred to
Para 83
[2010] 6 SCR 291
referred to
Para 83
[1978] 3 SCR 162
referred to
Para 85
[1998] 2 SCR 795
relied on
Para 89
INHERENT JURISDICTION: Suo Motu Contempt Petition (Crl.)
No. 1 of 2020.
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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, AG, Dushyant A. Dave, Rajeev Dhawan,
Chandra Uday Singh, Sr. Advs., Kamini Jaiswal, Rohit Kumar Singh,
Ms. Neha Rathi, Ms. Rani Mishra, Ms. Cheryl Dsouza, Ms. Hima
Lawrence, Prasanna S., Advs. for the appearing parties.
Prashant Bhushan (Respondent-in-person)
JUDGMENT
The following Judgment of the Court was delivered :
1. Heard Shri K.K. Venugopal, learned Attorney General for India,
Dr. Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior
counsel, and the contemnor-Shri Prashant Bhushan.
2. After having adjudged Shri Prashant Bhushan, Advocate, guilty
of contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and
Shri Dushyant Dave, learned senior counsel appearing for the contemnorShri Prashant Bhushan raised the following arguments: -
(i) That the copy of the petition on the basis of which the suo
motu cognizance was taken by this Court with respect to first tweet,
filed by Shri Mahek Maheshwari, was not furnished, in spite of the
application having been filed by the contemnor. Thus, it could not be
ascertained whether the complaint was mala fide or even personally or
politically motivated.
(ii) The factors relevant for sentencing are the offender, the
offence, the convicting judgment, statutory or other defences relating to
a substantial interference with justice, truth, bona fides, and public interest
in disclosure.
(iii) The contemnor is a lawyer of 35 years of standing, who has
pursued public interest litigation successfully at some personal and
professional cost. He got appreciation from the Court. He is a founding
member of Campaign for Judicial Accountability, which includes several
senior counsel of repute. He has brought certain corruption cases and
causes to the Court such as V. Ramaswamy case, Coal Mining case,
Goa Mining case, Orissa Mining case, an issue relating to the appointment
of CVC, CBI Director's case, Lok Pal case etc. In the public interest,
he has filed several petitions like Narmada case, Bofors case, Police
Reform case, Passive Euthanasia case, HPCL Privatization case, Street
Vendors case, Rickshaw Pullers case, Singur Land Acquisition case,
Draught Management, Gram Nyayalaya, and Electoral Bond cases.
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(iv) The nature of offences is another ingredient to be taken into
consideration while imposing sentence; (i) Offence must be clear without
ambiguity. (ii) The potential offender must know/understand whether
he/she is guilty of the offence. The offence of scandalizing the Court is
notoriously vague. It has not been defined by the Statute. It is called
"vague and wandering" jurisdiction. Reliance has been placed on Shreya
Singhal v. Union of India, 2015 (5) SCC 1. Such an offence has to
be handled with care and used sparingly, as observed in Baradakanta
Mishra v. Registrar of Orissa High Court & another, (1974) 1
SCC 374. There is inconsistency in various decisions relating to the
conviction and sentence due to vagueness.
(v) The very jurisdiction of contempt is scandalizing and is vague
and colonial. Several decisions have been relied upon where the Court
has not even initiated contempt in such matters. In some of the countries,
the contempt law being an archaic law has already been done away
with. There cannot be any compromise with the Right to Free Speech
and Opinions.
(vi) In the convicting judgment, reliance was placed on the
decisions in P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC
167), Brahma Prakash Sharma and Others v. The State of Uttar
Pradesh, 1953 SCR 1169, and In Re: Hira Lal Dixit and two others,
(1955) 1 SCR 677. The decision in E.M. Sankaran Namboodripad
v. T. Narayanan Nambiar, (1970) 2 SCC 325, has been superseded by
P.N. Duda (supra).In so far as the decision in E.M. Sankaran
Namboodripad (supra) is concerned, the same would not be relevant
inasmuch as the same stands overruled by P.N. Duda (supra). Similarly,
reliance on the judgment in C. K. Daphtary & Ors. v. O. P. Gupta &
Ors., (1971) 1 SCC 626, is also not relevant inasmuch as the said
judgment is delivered prior to amendment of Contempt of Courts Act,
1971 (for short 'the Act'), vide which Section 13(b) was brought on
statute book, so as to allow truth as a defence. The Court has to exercise
jurisdiction with great care and caution and only in cases that are clear
beyond reasonable doubt. In Re: S. Mulgaokar, (1978) 3 SCC 339,
various guidelines have been laid down by this Court. They are, free
market of ideas, fair criticism in good faith when it is in the public interest,
the surrounding circumstances, the person who is making the comments,
his knowledge in the field regarding which the comments are made and
the intended purpose. After considering all these guidelines, an advocate
should be punished by exercising extreme caution only in the case where
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the tendency is to create disaffection and disrepute to erode the judicial
system. Though the convicting judgment, on the one hand cites various
decision on balance, on the contrary holds the contemnor guilty for the
fair criticism made by him.
(vii) There is no conflict between the constitutional jurisdiction
under Articles 129, 215 of the Constitution of India, and the Contempt of
Courts Act. In Pallav Sheth v.