On 14.08.2020, a bench comprising of Hon’ble Mr. Justice Arun Mishra, Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice Krishna Murari, delivered a crucial judgment in the case of INRE: Prashant Bhusan and Another…..Alleged Contemnor(s), holding that Mr. Prashan Bhushan (Advocate) is guilty of committing criminal contempt of the Supreme Court of India. The Hon’ble Court has fixed 20th August 2020 for hearing on the issue of quantum of sentence.
What is Criminal Contempt:
Section 2(c) of the Contempt of Courts Act 1971 defines “Criminal Contempt” as follows:
(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
Maximum Punishment for Contempt of Court:
Section 12 of the Contempt of Court Act 1971 provides that a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both:
Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.
How the matter reached to the Supreme Court:
A petition came to be filed in Supreme Court by one Mahek Maheshwari bringing to the notice of Supreme 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 of Supreme Court placed the said petition on the Administrative side of the 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, the Supreme 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 Supreme Court on 22.7.2020.
On the said date, the Supreme Court 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!”
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.”
Contention of Mr. Prashant Bhushan:
Mr. Prashant Bhushan, the alleged contemnor No.1, filed a detailed affidavit running into 134 pages, which along with the Annexures runs into 463 pages.
The main contention of the alleged contemnor No.1 was, 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 was contended, that it was made to highlight the 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 was 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 was 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.
Insofar as the second tweet dated 27.6.2020 is concerned, it was his submission, that the said tweet had 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 was 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 was his submission, that such an expression of opinion, however outspoken, disagreeable or however unpalatable to some, cannot constitute contempt of court.
Contention of Twitter (Alleged Contemnor No.2)
Twitter Inc. in their affidavit-in-reply filed on its behalf stated that it is a global website providing micro-blogging platform for self-expression of its users and to communicate. It was 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 was 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, therefore the alleged contemnor No.2 has no editorial control on the tweets and merely acts as a display board. It esd 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 was 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.
Observation of Supreme Court
48.This Court holds, that the judiciary is the guardian of the rule of law and is the central pillar of the democratic State. It holds, that in our country, the written Constitution is above all individuals and institutions and the judiciary has a special and additional duty to perform i.e. to oversee that all individuals and institutions including the executive and the legislature, act within the framework of not only the law but also the fundamental law of the land. It further holds, that this duty is apart from the function of adjudicating the disputes between the parties, which is essential to peaceful and orderly development of the society. It holds, that if the judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted to it, the dignity and authority of the courts have to be respected and protected at all costs. It has been held, that otherwise, the very cornerstone of our constitutional scheme will give way and with it will disappear the rule of law and the civilized life in the society. It has been held, for this purpose that the courts are entrusted with the extra-ordinary power of punishing those who indulge in acts whether inside or outside the courts, which tend to undermine their authority and bring them in disrepute and disrespect by scandalising them and nobstructing them from discharging their duties without fear or favour. It has been held, that when the court exercises this power, it does not do so 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. It has been held, 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 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.
72.Indian judiciary is considered by the citizens in the country with the highest esteem. The judiciary is considered as a last hope when a citizen fails to get justice anywhere. The Supreme Court is the epitome of the Indian judiciary. An attack on the Supreme Court does not only have the effect of tending an ordinary litigant of losing the confidence in the Supreme Court but also may tend to lose the confidence in the mind of other judges in the country in its highest court. A possibility of the other judges getting an impression that they may not stand protected from malicious attacks, when the Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out. As such, in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly. No doubt, that the Court is required to be magnanimous, when criticism is made of the judges or of the institution of administration of justice. However, such magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary and thereby damaging the very foundation of the democracy.
73.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. As observed by Justice Krishna Iyer in the case of Re: S. Mulgaokar (supra), on which judgment, Shri Dave has strongly relied on, if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.
75.The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’.
76.Insofar as the alleged contemnor No.2 is concerned, we accept 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 to the alleged contemnor No.2.
77.In the result, we hold alleged contemnor No.1 – Mr. Prashant Bhushan guilty of having committed criminal contempt of this Court.