Dr. Abhishek Atrey, Advocate On Record, Supreme Court of India

20 August, 2020 at 12:20pm

There is a very thin line between criticism and vilification. One of the basic principle of independence is that you are free to do anything which does not intervene in my independence. The law of contempt is not new and the same is enacted with intention to protect independence of judiciary which is the main pillar of democracy. Mr. Prashant Bhushan being a very senior and famous lawyer, who is known as PIL lawyer and contested several important matters in public interest such as coal scam, 2 G scam etc. cannot be supposed to be ignorant about law of contempt or thin dividing line between criticism and contempt. Therefore his tweets maligning CJI and Supreme Court cannot be said to be an act of innocence but it is a well planned act and is an impact of frustration which he is feeling from last few years that his frivolous petitions were not being entertained by the Hon’ble Supreme Court.

Supreme Court convicted Mr. Prashant Bhushan for contempt and a particular group of influential persons again started shaking the central pillar of judiciary. This is the same group of influential persons, who always want to keep powers in their hand and to control and run judiciary in their own way. In recent past they tried their best to trap firstly Justice Dipak Mishra and then Justice Ranjan Gogoi with one common intention. The Senior Advocate, who is representing Mr. Prashant Bhushan is recently seen smoking hukka during hearing in virtual court, which shows how much respect they have for the judiciary. In the time of Justice Dipak Mishra he resigned from his designation of senior advocate but later again owned it.

I remember last year I was giving speech in seminar of Chartered Accountants. In that seminar one person asked me a question “what are the reasons of deteriorating image of the Judiciary specially Supreme Court in the eyes of public”. Since I am from the same fraternity, I did not accept at that time that image of our judiciary is deteriorating, but that incident compelled me of thinking about the reasons and today I can firmly say that there is a particular group of senior lawyers and media persons who brought our judiciary to this level gradually. 

It is well settled that in India we all are governed by the Constitution and Supreme Court is the guardian of Constitution and independence of judiciary and judicial review is part of basic structure of Constitution. The attacks on majesty of law and on the Supreme Court are not new. Soon after independence a group of particular thought started criticizing Supreme Court and majesty of law as a result a 5 Judge bench of the Hon’ble Supreme Court had to pass and elaborate judgment on the issue of contempt in the year 1953 in the case of Braham Prakash Sharma 1953 SCR 1169.

Before going into details, it is necessary to understand as to what is law of contempt and powers of Hon’ble Supreme Court to punish for contempt. It is well established and approved by the Hon’ble Supreme Court in the recent judgment of Constitution Bench in the case of Vijay Kurle (2020 SCC Online SC 407) that source of power of Supreme Court to punish for its contempt is not from section 15 of the Contempt of Courts Act, 1971 but it flows from Article 129 and 142 of the Constitution of India. Article 129 and 142 of the Constitution are reproduced below for better understanding about powers of Hon’ble Supreme Court:

“Constitution of India:

19. Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

(a) to freedom of speech and expression;

…………………………………………

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

129. Supreme Court to be a court of record: The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

Now to understand what amount to contempt we have to look into the definition of contempt as given in the Contempt of Courts Act, 1971. 

Contempt of Courts Act, 1971

Section 2. Definitions.  In this Act, unless the context otherwise requires,

1. contempt of court means civil contempt or criminal contempt;

(b) civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;

(c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, 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;

(d) High Court means the High Court for a State or a Union territory, and includes the court of the Judicial Commissioner in any Union territory.

3. Innocent publication and distribution of matter not contempt. 

(1) A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct, the course of justice in connection with any civil or criminal proceeding pending at that time of publication, if at that time he had no reasonable grounds for believing that the proceeding was pending.

(2) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, the publication of any such matter as is mentioned in sub-section (1) in connection with any civil or criminal proceeding which is not pending at the time of publication shall not be deemed to constitute contempt of court.

(3) A person shall not be guilty of contempt of court on the ground that he has distributed a publication containing any such matter as is mentioned in sub-section (1), if at the time of distribution he had no reasonable grounds for believing that it contained or was likely to contain any such matter as aforesaid:

Provided that this sub-section shall not apply in respect of the distribution of 

(i) any publication which is a book or paper printed or published otherwise than in conformity with the rules contained in section 3 of the Press and Registration of Books Act, 1867 (25 of 1867);

(ii) any publication which is a newspaper published otherwise than in conformity with the rules contained in Section 5 of the said Act.

Explanation. For the purpose of this section, a judicial proceeding  (a) is said to be pending 

(A) in the case of a civil proceeding, when it is instituted by the filing of a plaint or otherwise,

(B) in the case of a criminal proceeding under the in [1] [Code of Criminal Procedure, 1895 (5 of 1898], or any other law ?

(i) where it relates to the commission of an offence, when the charge sheet or challan is filed, or when the court issues summons or warrant, as the case may be, against the accused, and (ii) in any other case, when the court takes cognizance of the matter to which the proceeding relates, and in the case of a civil or criminal proceeding, shall be deemed to continue to be pending until it is heard and finally decided, that is to say, in a case where an appeal or revision is competent, until the appeal or revision is heard and finally decided or, where no appeal or revision is preferred, until the period of limitation prescribed for such appeal or revision has expired;

(b) which has been heard and finally decided shall not be deemed to be pending merely by reason of the fact that proceedings for the execution of the decree, order or sentence passed therein are pending.

4. Fair and accurate report of judicial proceeding not contempt. Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.

5. Fair criticism of judicial act no contempt. A person shall not be guilty of contempt of court for publishing any fair comment on the merits of any case which has been heard and finally decided.”

The difference between criticism and scandalizing or abusing or vilification can be understoodeven by a layman whereas Mr. Prashant Bhushan is a well known lawyer and politician but the problem is he loves to remain in controversy. This is not first time, he used to criticize or malign image of judiciary or democracy by his words or speech. Once he said in Most of the revolutionary slogans & songs coined in Independence struggle were created by Muslims. The Hindutva groups did not even fight for Independence. Once he criticized Lord Krishna and compared rapists from Lord Krishna. Against Judiciary he is habitual of telling nonsense but every time no action was taken against him by Judges. His behavior before Justice Dipak Mishra or Justice Ranjan Gogoi or Justice Khehar was very well seen by members of lawyers fraternity, but since those incidents were not published anywhere no action was taken against him. But this time in anxiety he published his ill thoughts on twitter and that came in the notice of Justice Arun Mishra and downfall of Mr. Prashant Bhushan started.

 In the judgment dated 14.8.2020, a three Judge Bench of the Hon’ble Supreme Court comprising of Justice Arun Mishra, Justice B.R. Gawai and Justice Krishna Murari held Mr. Prashant Bhushan guilty of contempt of the Supreme Court. In this 108 pages judgment the Supreme Court described in detail the law relating to contempt of court and how they held Mr. Prashant Bhushan guilty of contempt. Certain relevant paras of the said judgment are quoted below:

“56. This Court reiterated the position, that fair criticism of the conduct of a judge, the institution of the judiciary and its functioning may not amount to contempt, if it is made in good faith and in public interest. 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. 

57. It could thus be seen, that it is well settled 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 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’. 

58. 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’ 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 

59. 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 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. 

60. In the light of these guiding principles, let us analyze the tweets, admittedly, made by the alleged contemnor No.1 which have given rise to this proceeding. 

61. After analysing the tweets, the questions that we will have to pose is, as to whether the said tweets 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. 

62. We have reproduced both the tweets in the order dated 22.7.2020, which is reproduced in the beginning. 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 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. 63. 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 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 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. 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. 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 being Writ Petition (Criminal) No.131 of 2020, challenging the First Information Report lodged against him at Bhaktinagar Police Station, Rajkot, Gujarat, wherein this Court had passed the following order on 1.5.2020:

………………………………….

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. 

65. 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 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 Justice’s in particular in allowing it.

66. We are not concerned with the first part of the tweet since it is not concerned with this Court. However, even on his own admission, he 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.

67. 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.

68. 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.

69. As discussed herein above, 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 of publication would also be one of the factors that requires to be taken into consideration while considering the question of good faith.

70. Another circumstance is, the person who makes such a statement. 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.

71. As held by this Court in earlier judgments, to which we have referred herein above, 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 tweet clearly tends to give an impression, that the Supreme Court, which is a highest constitutional court in the country, has in the last six years played a vital role in destruction of the Indian democracy. There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of judiciary. We do not want to go into the truthfulness or otherwise of the first part of the tweet, inasmuch as we do not want to convert this proceeding into a platform for political debate. We are only concerned with the damage that is sought to be done to the institution of administration of justice. In our considered view, 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.

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.

74. 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. Recently, the Supreme Court in the cases of National Lawyers Campaign for Judical Transparency and Reforms and others vs. Union of India and others15 and Re: Vijay Kurle & Ors (supra) has suo motu taken action against Advocates who had made scandalous allegations against the individual judge/judges. Here the alleged contemnor has attempted to scandalise the entire institution of the Supreme Court.” 

However it became quite long to mention relevant paras of the judgment dated 14.8.2020 but all the aforementioned paras are necessary to understand the reasoning of the judges moreover in a scenario when a particular group of persons from lawyers fraternity, judges, bureaucrats etc. started an agitation in support of Mr. Prashant Bhushan and against the Hon’ble Supreme Court. Certain Bar Associations and certain group of lawyers started a signature campaign to affect the probable judgment of the Hon’ble Supreme Court and I have no hesitation to say that such an act of signature campaign against pending proceedings before the Hon’ble Supreme Court in itself also amounts to contempt of court as they are trying to interfere in the administration of justice. Therefore before being part of any signature campaign I would like to request my colleagues to look into following tweets of Mr. Prashant Bhushan.

I just leave it here to decide by the people of this country as to who has shaken central pillar of democracy whether by Judges of the Hon’ble Supreme Court or by Mr. Prashant Bhushan and also whether conviction of Mr. Prashant Bhushan is necessary to upheld majesty of law. 

X————————X