[Contempt] Prashant Bhushan's Tweets Tend to Shake Public Confidence In Institution Of Judiciary: SC [Read Judgment]

The Supreme Court, in its judgment, holding Advocate Prashant Bhushan guilty of contempt, observed that his tweets tend to shake the public confidence in the institution of judiciary

Justice BR Gavai, who authored the judgment which runs to 108 pages, has made a threadbare analysis of Bhushan's two tweets to see whether they are entitled to protection under Article 19(1) of the Constitution as a fair criticism of the system, made in good faith in the larger public interest or not. The bench, also comprising Justices Arun Mishra and Krishna Murari, observed that the statement in his tweet that the Supreme Court is in lockdown is patently false.

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'

The bench observed that a citizen while exercising right under Article 19(1) is entitled to make a fair criticism of a judge, judiciary and its functioning. However, the bench added:

"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'.

When the authority of this Court is itself under attack, the Court would not be a onlooker

Sr. Advocate Dave had relied on Justice Krishna Iyer's judgment in Baradakanta Mishra vs The Registrar Of Orissa High Court & another to contend that when proceedings 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. The bench, in this regard, said:

As submitted by Shri Dave, relying on the observation made by Krishna Iyer, J, in the case of Baradakanta Mishra (supra), if a constructive criticism is made in order to enable systemic correction in the system, the Court would not invoke the contempt jurisdiction. However, as observed by the same learned judge in Re: S. Mulgaokar, 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. Justice Krishna Iyer further observed, that after evaluating the totality of factors, if the Court considers the 93 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

The court further said.

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 92 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' as explained by Wilmot, C.J. and approved by the Constitution Bench of this Court in Baradakanta Mishra (supra) 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

Source of Power To Initiate Contempt Is Article 129

The court also considered the submission made by Sr. Advocate Dushyant Dave that the present proceedings are initiated on the basis of the petition filed by Mr. Maheshwari, the same, it cannot be treated as a suo motu contempt petition. He had contended that unless there is a consent given by Attorney General for India, the proceedings could not have been initiated on the basis of the said complaint.

Addressing this submission, the bench extensively refers to observations made in an earlier judgment in Re: Vijay Kurle & Ors., it said that the source of power of Supreme Court for proceeding for an action of contempt is under Article 129, and that power is not in any manner limited by the provisions of the Contempt of Courts Act, 1971.

"It has been held, that the Court is vested with the constitutional powers to deal with the contempt and Section 15 is not the source of the power to issue notice for contempt. 39 It only provides the procedure in which such contempt is to be initiated. It has been held, that 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 (supra) has to be followed. In the present case, the same has undoubtedly been followed. It is also equally settled, that as far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the learned Attorney General because the Court is exercising its inherent powers to issue notice for contempt. It is equally well settled, that 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 affidavit-in-reply filed by him"

CJI Bike Tweet 

The court analyses this tweet by splitting it into two parts. About the first part of the first tweet which states, that 'CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet', the bench observed that it could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI.

But the court noted that the second part of the tweet which states, 'at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice'. criticizes the CJI in his capacity as the Chief Justice of India i.e. the Administrative Head of the judiciary of the country. In this regard, the bench made the following observations:

Statement that CJI has kept the SC in lockdown mode denying citizens their fundamental rights to access justice is patently false.

"The impression that the said part of the tweet attempts to give to a layman is, that the CJI is riding a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet, at a time when he has kept the SC in lockdown mode denying citizens their fundamental right to access justice. 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. Firstly, it would be noted, that 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"

"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 96 said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India. 64. 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. It may not be out of place to mention, that the alleged contemnor No.1 has himself appeared on various occasions in number of matters through video conferencing."

Therefore, the Court concluded thus:

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.

Bhushan himself availed the right of an access to justice during lockdown period, not only as a lawyer but also as a litigant

The court also observed that, during this period, Bhushan himself filed a Writ Petition challenging the First Information Report lodged against him at Bhaktinagar Police Station, Rajkot, Gujarat, in which the Court granted him interim relief. It observed:

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. We are unable to accept the contention of the alleged contemnor No.1, that the said statement was a bona fide criticism made by him on account of his anguish of non functioning of the courts physically. His 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, as stated herein above, 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

Second Tweet

This tweet was split into three parts by the Supreme Court for its analysis. The court noted 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 bench said that it is not concerned with the first part and that it does not want to go into the truthfulness or otherwise of the first part of the tweet. We do not want to convert this proceeding into a platform for political debate, the court said.

The court took serious objection to second part of the tweet that the Supreme Court has played a substantial role in allowing the destruction of the democracy and the third part that the role of the last 4 Chief Justice's in particular in allowing it. The bench said that this undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law. The court added 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 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.

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 100 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.

The court also observed that 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. While holding Bhushan guilty of contempt, the bench further observed:

"In the own admission, 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 our democracy and its institutions and in particular the functioning of our 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. In our considered view, 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."

Contempt Against Twitter Dropped

As regards Twitter Inc, the bench accepted the explanation given by it, 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. We, therefore, discharge the notice issued", the bench said.

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