In Re: Prashant Bhushan & Anr.

- Alleged Contemnor(s)
Suo Motu Contempt Petition (Crl.) No.1 OF 2020

Facts of the case

1. Date: 27 June, 2020

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.

2. Date: 22 July, 2020

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.

Issues of the case

2. Whether these tweets were against the CJI's as Individuals or CJI's as the CJI of the Supreme
Court?

3. Whether the acts of Twitter Inc. have also tampered the reputation of the Indian judicial system?

Law Involved
#The Constitution of India, 1950;

Article 129: Grants Supreme Court the power to punish for contempt of itself.

Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.

Article 215: Grants every High Court the power to punish for contempt of itself.

# Information Technology Act, 2000;

Section 79. Exemption from liability of intermediary in certain cases. - (1) Notwithstanding
anything contained in any law for the time being in force but subject to the provisions of sub-
sections (2) and (3), an intermediary shall not be liable for any third party information, data, or
communication link made available or hosted by him.

#The Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975;
Rule 3. In case of contempt other than the contempt referred to in rule 2, the Court may take action
—

(a) suo motu, or

(b) on a petition made by Attorney-General, or Solicitor- General, or

(c) on a petition made by any person, and in the case of a criminal contempt with the consent in
writing of the Attorney-General or the Solicitor-General.”

#Contempt of Courts Act, 1971.

Section 2(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;

Section 15. Cognizance of criminal contempt in other cases.— (1) In the case of a criminal
contempt, other than a contempt referred to in section 14, the Supreme Court or the High Court
may take action on its own motion or on a motion made by—

(a) the Advocate-General, or

(b) any other person, with the consent in writing to the Advocate-General, 3 [or]

(c) in relation to the High Court for the Union territory of Delhi, such Law Officer as the Central
Government may, by notification in the Official Gazette, specify in this behalf, or any other person,
with the consent in writing of such Law Officer.

Section 23. Power of Supreme Court and High Courts to make rules.—The Supreme Court or, as the
case may be, any High Court, may make rules, not inconsistent with the provisions of this Act,
providing for any matter relating to its procedure.

Arguments
On behalf of Contemnor 1, Mr. Prashant Bhushan, learned senior counsel Shri Dave has submitted
that since the proceedings were initiated after Mr. Maheshwari filed a petition, the same cannot be
a Suo moto contempt petition. He has argued that:

• The tweets were not scandalising the image of the apex court, rather, it is a right to freely and
fairly discuss the state of affairs of an institution and build a public opinion to reform the institution.

• CJI is not the Supreme court and the Court cannot be equated with the Chief Justice or even a
succession of 4 CJI's.
• As stated in Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh[1953 SCR 1169], if
the attack is on the judge and does not interfere with the due course of justice and proper
administration, then the court cannot proceed with the case of contempt.

• In Baradakanta Mishra vs The Registrar of Orissa High Court & another[(1974) 1 SCC 374] , it was
observed that if it is vilification of judge as an individual and not judge as judge, then he shall seek
remedies privately and the court cannot punish for contempt.

Further, the learned counsel submitted that in the present case, the vilification, if any, is
against the CJI as an Individual. The first tweet was an expression of agony by Mr. Bhushan because
of the non-functioning of the physical court from past several months, which in turn is denying
justice to the litigants. The second tweet, however, is an expression of his opinion on the
action/inaction of the last 4 CJI's and how the same has contributed to the destruction of the
democracy in India. He submits that the allegations are on the present CJI and part three CJI's as
Individuals in their individual capacity.

Contemnor 2, Twitter Inc argued that it is not the originator of the tweets posted on its
platform rather, is a mere intermediary. It does not have any editorial control on the tweets, rather,
it acts as a display board for the people. Under Section 79 of the Information Technology act, 2000,
Twitter Inc has a safe harbour as an intermediary for any objectionable posts on its platform posted
by its users.

Observations by the court

The court has divided this tweet in three distinct parts for the purpose of this case:

a. When historians in future look back at the last 6 years to see how 3 democracy has been
destroyed in India

b. Even without a formal Emergency, they will particularly mark the role of the Supreme Court in this
destruction

c. More particularly the role of the last 4 CJIs.

In the second and third part of the tweet. Mr. Bhushan has expressed that the Supreme
court and the CJI's have substantially contributed in the destruction of democracy in India. The
emergency era is a dark time of the history of Indian democracy. The impression of this tweet is that
when the historians in future look back, they will see the last six years as the destruction of
democracy and that the Supreme Court had a particular role in it and how the last four Chief Justices
of India had a more particular role in its destruction. The criticism is not against a particular judge
but the Supreme Court and the institution of the Chief Justices of India.

2. Tweet Dated 22 July, 2020

The first part of the tweet can be said to be a criticism against the CJI as an individual, as it
states that CJI rides a 50-lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a
mask or helmet. However, the second part, at a time when he keeps the SC in lockdown mode
denying citizens their fundamental rights to access justice, criticizes the CJI as the administrative
head of the Judiciary. It implies that the CJI has neglected the citizen's fundamental right to access to
Justice and is enjoying his expensive ride, belonging to a BJP leader, without any precautionary
measures amidst the pandemic.

Further, the bench has mentioned that the court was on vacation at the time of the CJI's
picture. Also, it is factually incorrect that the court is in Lockdown. On account of the pandemic, the
physical functioning would lead to an outbreak of the virus. Therefore, courts are functioning
virtually. This statement is said to be false, malicious and scandalous, and can shake the confidence
of the public in Indian Judiciary System.

As far as the second contemnor is concerned, to prove its bona fide intention, Twitter Inc
has taken actions and the tweets/posts in question were blocked and the access to the same were
disabled. The court, therefore, discharged Contemnor 2 from these proceedings.

Cases Referred
In Re: S. Mulgaokar vs Unknown [(1978) 3 SCC 339], Justice Krishna Iyer laid down broad guidelines
to precedentially validate judicial norms.

The six rules, briefly, laid down are as follows:

1. The contempt power shall be used economically by the court. The court shall act in seriousness
and severity when justice is jeopardised by a gross or/and unfounded attack on the judges and such
attack is likely to obstruct or destroy the judicial process.

2. One must harmonise the constitutional values of free criticism and the need of a fearless crucial
and its presiding functionary. He also mentioned:

be you the contemnor ever so high, the law the People's expression of justice is above you

3. The confusion between personal protection of a libelled judge and prevention of obstruction of
public justice and confidence must be avoided. The former is not contempt.

4. The media is an indispensable intermediary between the State and the people and should be
given free play within responsible limits even when the focus of its critical attention is the court.

5. A judge should not be hypertensive even when the criticism oversteps the limit. Rather, focus on
deflating the vulgar denunciation by dignified bearing by judicial righteousness.

6. Even after all the due considerations, if the attack on the judge is considered to be scurrilous,
offensive, intimidatory or malicious beyond condonable limits, the law must, in the name of public
interest and justice punish him who challenges the supremacy of law by fouling its authenticity.

In Pritam Pal v. High Court of Madhya Pradesh, Jabalpur Through Registrar, a 2 Judge Bench of
this Court held as follows:— Prior to the Contempt of Courts Act, 1971, it was held that the High
Court has inherent power to deal with a contempt of itself summarily and to adopt its own
procedure, provided that it gives a fair and reasonable opportunity to the contemnor to defend
himself. But the procedure has now been prescribed by Section 15 of the Contempt of Courts Act,
1971 in exercise of the powers conferred by Entry 14, List III of the Seventh Schedule of the
Constitution.

Decision by the court

2. Mr. Prashant Bhushan, Advocate, is liable for criminal contempt of court.

On 31st August, 2020, The Honourable Supreme Court imposed a fine to Re 1 on the
Contemnor to be deposited by 15 September, 2020. Failure to comply with this order shall result
into 3 months of imprisonment and debarring from practicing in the court for 3 Years.

The first contemnor, Mr, Prashant Bhushan has accepted its order and submitted the
penalty. He believes that what the court believes to be a contempt is the highest duty of a
responsible citizen of the country.