CASE COMMENT

Prashant Bhushan & Anr (2020) suo moto contempt petition (crl)
no.1of 2020

PROFESSIONAL ETHICS & PROFESSIONAL ACCOUNTING

SYSTEM

SUBMITTED BY- GROUP 1.

Chelci Chahar (17040141005)
and
Kalyani Sharma (17040141006)
B.A. LL.B.
Alliance School of Law
2017-22

Submitted To- Dr. Aisha Ahmed Sharfi

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 CASE COMMENT

Prashant Bhushan & anr (2020) Suo Moto Contempt Petition (Crl)
No.1 of 2020

I. INTRODUCTION

The Contempt of Court has been viewed as a threat to the fundamental right of freedom of
speech. While counsels and the people were of the view that citizens of the country should
have the right to criticize all organs and the representative of these organs but the court was
of the view that even though people have the freedom of speech, it is not an absolute right
and it is subject to reasonable restrictions. They are restricted specially when such speeches
lead to lowering the confidence of the citizens in the judiciary.

This case comment is an attempt to cover the matter with the view that strikes a balance
which is paramount to the democratic entity and does not end as a one-sided hollow
commentary.

II. WHAT IS CONTEMPT OF COURT?

According to the Contempt of Courts Act 1971, contempt of court can either be civil
contempt or criminal contempt.

Civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or
other process of a court, or wilful breach of an undertaking given to a court.
Criminal contempt, on the other hand, is attracted by 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. scandalizes or tends to scandalize, or lowers or tends to lower the authority of,
any court;
ii. prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding;
iii. interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

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.

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III. DETAILS OF THE CASE

 Decided on: August 14, 2020.

 Parties: Mr. Prashant Bhushan, Twitter Inc.
 Citation: Suo Moto Contempt Petition (Crl.) No.1 of 2020.
 Bench: Justice Arun Mishra, Justice B. R. Gavai, Justice Krishna Murari.
 Relevant articles: Article 1291, 215 & 142 of the Constitution of India, 1950
 Acts/Sections: Information Technology Act, 2000; The Rules to Regulate Proceedings
for Contempt of the Supreme Court, 1975; Contempt of Courts Act, 1971.

IV. FACTS OF THE CASE

On June 27th 2020 and June 29th advocate Prashant Bhushan published tweets about the chief
justice of India, accompanied by a picture of CJI Bobde on a motorcycle. On 21st July, 2020
Adv. Mahek Maheshwari filed a contempt petition in the Supreme Court against Prashant
Bhushan (Contemnor2 No.1) alleging his tweets as "cheap publicity stunt" with an attempt to
"spread hatred in the form of anti-India campaign" and against Twitter (Contemnor No.2) for
not putting down the alleged tweets.

On 22nd July, 2020 Supreme Court upon observing that contempt petition filed by Adv.
Maheshwari lacks prior sanction of the Attorney General of India, took Suo motu cognizance
of the tweets posted by the Adv. Prashant Bhushan. Thereafter, a bench comprising Hon'ble
Justices Arun Mishra, B. R Gavai and Krishna Murari prima facie observed that the
statements on Twitter have brought the administration of justice in disrepute and are capable
of undermining the dignity and authority of the Supreme Court. Thus, the bench issued notice
to the Contemnors to file their reply on 5 th August, 2020 and also issued notice to the
Attorney General to assist the court.

TWEET 1:

“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.”

1
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.
2
Contemnor is the one who commits contempt.

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TWEET 2:

“CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan

Nagpur, without a mask or helmet, at time when he keeps the SC in
Lockdown mode denying citizens their fundamental right to access justice!”

IMG 1.1 demonstrates the two tweets made by Mr. Prashant Bhushan
Image courtesy- scconline.com

V. ISSUES

1. Whether the petition against Prashant Bhushan is maintainable or not?

2. Whether the said tweets are entitled to protection under 19(1) of the constitution as a
fair criticism of the system, made in good faith in the larger public interest or not.
3. Whether Prashant Bhushan’s tweets on 27th and 29th June 2020 amounted to criminal
contempt of court?

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VI. CONTENTIONS

On behalf of contemnor 1, Mr. Prashant Bhushan, learned senior counsel Shri Dave argued
that:
 The tweets were not scandalizing the image of the judiciary or the functioning of
Courts, 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 v The State of Uttar Pradesh 3,
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 v The Registrar of Orissa High Court & Anr 4, 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 argued 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 was
denying the justice to litigants.
The second tweet was an expression of his opinion on the action/inaction of the last 4 CJI’s
and how it has contributed to the destruction of the democracy in India. He also argued that
the allegations are on the present CJI and the past CJI’s as individuals in their individual
capacity.

The contemnor 2, Twitter Inc, argued that:

Twitter Inc argued that it is not the originator of the tweets posted on its platform rather, it 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 safe harbor as an intermediary for any objectional posts on its platform posted
by its users.

VII. JUDGMENT

1. The court observed that the first part of the tweet was a personal criticism against the
CJI as an individual, and is not contempt. However, the second part of the first tweet
was an ‘undisputed’ attack on the CJI in his capacity as the administrative head of the
judiciary. Therefore, the statement is undoubtedly false, malicious, and is contempt.
2. On the second tweet, the court made three observations:
3
1953 SCR 1169
4
(1974) 1 SCC 374

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 3. Prashant Bhushan’s comment was a direct criticism on the institution of the Supreme
Court and the institution of CJI.
4. The extent of reach of the tweet is huge and coming out of a lawyer himself the court
concluded that he behaved irresponsibly.
5. It was also not a fair criticism of the functioning of the judiciary made in bona fide in
the public interest, making it ineligible for protection under the Article 19(1) rule.

Regarding the alleged contemnor No. 2, the court accepted the explanation given by it that it
is only an intermediary and that it is only an intermediary and that it does not have any
control on what the users post on the platform and under section 79 5 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. The Court also
noticed that it had also showed bona fides immediately after the cognizance was taken by the
Court as it had suspended both the tweets. Therefore, alleged contemnor No. 2 was
discharged.

VIII. ANALYSIS

The Court did not analyse the legitimacy of the comments made by him. In the case
comments made by law minister Ravi Shankar, which read “there is a need for greater
scrutiny and screening of the judiciary”, it was considered as his personal opinion and not a
contempt and the court did not take cognizance of the matter because they were of the view
that it was not scandalizing the court.

In the case of Arundhati Roy, in Re6 the court held, 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. To ascertain 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. All of the citizens cannot be permitted to comment upon the conduct
of courts in the name of fair criticism which, if not checked, would destroy the institution
itself.

The biggest lacunae in the judgment are the lack of analysis of the second tweet. It has been
upheld in numerous cases that contempt cannot be determined in the strict sense because
strict rule application curbs the freedom of speech and expression of citizens of India. The
court is the place where people seek justice, lack of accountability make the system
autonomous, which leads to obstruction of justice. This judgment lacks the idea as to when a
comment amounts to contempt or constructive criticism, citizen’s freedom of speech and

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Any social media intermediary will not be in the radar of legal action for any third-party information, data, or
communication link made available or hosted by him.
6
(2002) 3 SCC 343

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expression will be diluted. The time has come to make changes to contempt legislations in
India, being in an era where social media is playing a bigger role.

In India, the term ‘scandalise’ used in Section 2(c)(i) 7 of the Contempt of Court Act is not
defined and contempt powers of the Supreme Court and High Courts are unlimited. This
causes arbitrariness and increases the probability of its misuse. In this case the order is passed
by a single judge of the High Court, its appeal shall lie to a bench of not than two judges of
that High Court. In case the order is passed by a bench of the High Court, its appeal shall lie
to the Supreme Court. Further, though contempt proceedings are quasi-criminal in nature and
their trial is conducted in a similar manner as the trial for a criminal case is conducted, no
procedural safeguard is available to the alleged contemnor as it is available to the alleged
criminal. Since neither the right to appeal is available to the person charged with criminal
contempt of Supreme Court nor any procedural safeguard is available to an alleged
contemnor as it is available to an alleged criminal during the trial, it is simply unreasonable
and discriminatory and hence it is the violation of Article 148 of the Indian Constitution.

The contempt power in a democracy is only to enable the court to function effectively, and
not to protect the self-esteem of an individual judge. The foundation of the Judiciary is based
on the trust and the confidence of the people in its ability to deliver fearless and impartial
justice. The Constitutional bench in the case of contempt against former Madras High Court
Judge C.S. Karnan, Justice C.S. Karnan v The Honourable Supreme Court of India &
Ors9, the Court was of the view that ‘Law of contempt is not made for the protection of
judges who may be sensitive to the winds of public opinion. Judges are supposed to be men
of fortitude, able to thrive in a hardy climate.”

Therefore, Constructive criticism is as important as judicial independence.

IX. CONCLUSION

In India, the issue of the freedom of speech and the burdens of reasonable restrictions has
been a dubious subject since the independence. Considering the vilification of the judiciary
on a public level and the requirement for its freedom as well as the certainty that the organ
needs to keep up with among the citizens, I believe the decision of the court fittingly decides
the degree of the freedom of speech while remembering the autonomy of judiciary. It saves
both the fundamentals of the democracy. Despite the fact that the judgment appears as a
disputable one and a limitation on privileges of the citizen, if the decision is read as a whole
rather partially it is a practical and a very sensible judgment thinking about that the role of the
court is simply a mindful interpretation of law. Further remembering that a normal citizen as
well as expert can imagine Prashant Bhushan and Learned Counsel Dave have a discussion to
dissect and remark on a circumstance, yet the Judges Code of Conduct doesn't permit them to

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“Criminal contempt” means the publication of any matter or the doing of any other act whatsoever which
scandalises or tend to scandalize, or lowers or tend to lower the authority of any court.
8
The State shall not deny to any person equality before the law or equal protection of the laws within the
territory of India.
9
W.P. (C) 6278/2017.

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discuss something similar on media gatherings, subsequently with absence of power to
defend their ideology has to be depicted in the judgment itself and not beyond the judgment.
Therefore, the protection of judiciary is as important as the protection of freedom of speech.