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Re: Prashant Bhushan and Anr. Alleged Contemnor(S)

Scandalising the court means any hostile criticism of the Judge as Judge; any personal attack upon him, unconnected with the office he holds, is dealt with under the ordinary rules of slander and libel-Professor Goodhart[1].

Case name: In Re: Prashant Bhushan & Anr. …. Alleged Contemnor(S)
Case number: Suo Motu Contempt Petition (Crl.) No.1 OF 2020 - Court: The Supreme Court of India - Bench: Justice Arun Mishra, Justice B. R. Gavai, Justice Krishna Murari
Decided On: August 14, 2020

Relevant Article 129, 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.

Brief Facts And Procedural History
The matter has been brought in to the notice of the supreme court to initiate contempt proceedings against Mr. Prashant Bhushan (Advocate) and Twitter Inc. by Shri Mahek Maheshwari with regard to the following tweets:
  1. Date: 27 June, 2020
    When historians in future look back at the last 6 years to see how 3 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!

    On behalf of Contemnor 1, Mr. Prashant Bhushan, learned senior counsel, Shri Dushyant Dave, is appearing before the court and on behalf of Contemnor 2, Twitter Inc., Shri Sajan Poovayya, learned senior counsel has appeared along with Mr. Priyadarshi Banerjee and Mr. Manu Kulkarni.

Issue Before The Court
  1. Whether the tweets published by Mr. Prashant Bhushan are healthy criticism of the Indian judiciary or has dashed the public confidence in the institution of the supreme court?
  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?

Important Terms/ Provisions
  1. Contemnor: one who commits contempt [2]
     
  2. Criminal Contempt[3]: 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:
    1. scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
    2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
    3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;
       
  3. Article 129: 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[4]
     
  4. Article 142(2)[5]: 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

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[6], 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[7], 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 objectional posts on its platform posted by its users

Ratio Of The Court
In Re: S. Mulgaokar vs Unknown[8], 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.

Referring to the tweets, the court has observed that:
  1. Dated 27 June, 2020
    The court has divided this tweet in three distinct parts for the purpose of this case:
    1. When historians in future look back at the last 6 years to see how 3 democracy has been destroyed in India…
    2. …even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction…
    3. …& 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. 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.

Decision Held By Court:
  1. Twitter Inc is a mere intermediary[9] between the author and the platform and therefore is not Liable.
  2. Mr. Prashant Bhushan, Advocate, is liable for criminal contempt of court.

Latest Updates (As on 03.09.2020)
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. In a press conference, Mr. Bhushan has said that he shall seek his right to review.

Author's Comment
As per the author's understanding, the apex court has rightly adjudged the case as hand. What the first contemnor had said wasn't a mere opinion in bona fide intention, but an attempt to attack the institution and its Chief Justices. However, the Court at the same time had also been a lot harsh on the contemnor here.

The contemnor has been asked to submit the fine (if he does so, it means that he accepts the charges) or face imprisonment for 3 months and shall be barred from practicing in the court for 3 years. The author believes that this is a misuse of power by the court to make him choose between acceptance of the charges or to practice in this court. However, as also mentioned earlier, the contemnor has expressed his desire to invoke his right to seek review.

End-Notes:
  1. Newspaper on Contempt of Court, (1935) 48 Harv LR 885, 898.
  2. contemner, Merriam-Webster.com Legal Dictionary.
  3. Sec 2(c) of the Contempt of Court Act, 1971
  4. The Constitution of India, 1950.
  5. The Constitution of India, 1950
  6. 1953 SCR 1169
  7. (1974) 1 SCC 374
  8. (1978) 3 SCC 339
  9. As defined in Information Technology act, 2000
Written By: Aparna Aggarwal - About: Student, BBA LLB (II Year), School of Law, UPES.

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