The Supreme Court held Senior Advocate Prashant Bhushan guilty of criminal contempt in the suo moto case registered against him for two tweets posted by him about the Supreme Court and the current Chief Justice of India.
The matter was heard by a bench comprising Justices Arun Mishra, BR Gavai and Krishna Murari and the judgment was reserved on August 5 when Senior Advocate Dushyant Dave had argued at length.
The judgement, firstly, points to the procedure followed while taking suo moto cognizance. The petition filed by one Mahek Maheshwari was placed on the administrative side of the court and directions were sought whether it should be listed since consent of Attorney general of India was not sought, as is required by the law. After examining the matter, the court directed the matter to be listed on the judicial side for appropriate orders and that’s how the July 22 contempt notice was issued to Bhushan.
Further, the judgement puts forth the submission made by Bhushan in his affidavit in response defending his two tweets, which may be read here.
The arguments led by Dushyant Dave at the last hearing pointed out that the petition was filed by one Mahek Maheshwari and hence it cannot be treated as a suo moto petition. While considering this argument, the Court cited Article 129 of the Indian Constitution that states that the Supreme Court shall have “all the powers of such a court including the power to punish for contempt of itself”, as well as some previous judgments.
He further argued that the contempt notice issued on July 22 does not state anywhere that Bhushan, the contemnor no.1, scandalises or tends to scandalise or lowers or tends to lower the authority of any Court. Neither does it mention that any of his acts prejudice or interfere or tend to interfere with, due course of any judicial proceeding or interfere or tend to interfere with, or obstruct or tend to obstruct, the administration of justice in any manner. The court, on this point of contention stated that Bhushan was very well aware of the contempt charges against him as can be seen in the affidavit filed by him in response.
Further, Dave had relied upon Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh [1953 SCR 1169] and asked the bench to weigh 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. 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, submitted Dave. The court cited several judgments passed by the apex court in the past, including the ones cited by Dave to substantiate that the comment made by Bhushan did in fact amount to impediment to administration of justice and shakes public confidence in the judicial institution.
He further argued that the language and contents of the tweets should be read in tandem with the surrounding facts and circumstances under which the statements were made. He reiterated relying upon another case law 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. The court cited Arundhati Roy, in Re [(2002) 3 SCC 343] and observed that fair criticism of a judge or the court is not contempt if made in good faith. For ascertaining the good faith and the public interest, the courts have to see all the surrounding circumstances including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved.
The court held that if a statement is made against a judge as an individual, the contempt jurisdiction would not be available but if it is made against a judge as a judge thus having adverse effect on administration of justice then contempt arises. “When such a statement is calculated in order to malign the image of judiciary, the Court would not remain a silent spectator,” reads the judgment.
The tweet analysis
The judgement further goes on to analyse each tweet. It refers to the tweet, “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 rights to access justice”. The first part of the tweet, “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet” was held to be criticism against him as an individual. However the latter part was held to be critical of the CJI in his capacity as the Chief Justice of India, i.e. the Administrative Head of the judiciary of the country.
“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 judgment further goes on to justify that the CJI was in Nagpur when court was on vacation and that the claim that the court was in lockdown mode was factually incorrect and that between March and August the court had heard 12,748 matters.
The court also reminded Bhushan, through the judgment, how the court, during this period of restricted functioning, had granted him protection from coercive action when an FIR was lodged against him in Gujarat.
“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.”
Addressing the contents of the other tweet, “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.” The Court held that “the impression that the said tweet tends to convey is that the judges who have presided in the Supreme Court in the period of the 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 “attending circumstances” that the court considered in the context of this tweet was the extent of publication and noted that the 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”.
The court noted that Bhushan has been practicing for 30 years and has taken up many issues of public interest and stated “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 Indian judiciary is not only one of 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.
The Court further stated,
“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.”
The court added that it may even take a magnanimously charitable attitude if utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement but when there appears to be a scheme and design to damage the confidence in judiciary and demoralize the judges then the court has to take a firm stand.
The judgment further states that the summary jurisdiction is exercised purely to uphold majesty of the law and of the administration of justice.
In conclusion, the court discharged Twitter, which was the other contemnor in this case based on its submission that it was merely an intermediary and has no control over what is being posted and because it had immediately suspended the tweets.
“In the result, we hold alleged contemnor No.1 – Mr. Prashant Bhushan guilty of having committed criminal contempt of this Court.”
The complete judgment may be read here.