Supreme Court of India
IN RE: PRASHANT BHUSHAN AND ANR.versusIN RE:
- Citation
- 2020 INSC 489
- Decided
- 31 August 2020
- Disposal
- Disposed off
Holding
The truth defence was unavailable as it was neither in public interest nor bona‑fide, and the conviction for criminal contempt was upheld with a nominal fine, default imprisonment and debarment.
Summary
The Supreme Court, hearing a suo motu criminal contempt petition against senior advocate Prashant Bhushan, affirmed his conviction for scandalising the judiciary through tweets and an affidavit alleging misconduct by judges. The Court held that the defence of truth under Section 13 of the Contempt of Courts Act, 1971 requires the allegation to be in the public interest and made bona‑fide, which was not satisfied in the present case. Consequently, the Court rejected Bhushan's plea for a genuine apology, found no remorse, and imposed a nominal fine of Rs 1, with default imprisonment of three months and a three‑year debarment from practising before the Supreme Court. The judgment also clarified the interplay between Articles 19(1)(a), 19(2), 129 and 215 of the Constitution, emphasizing that free speech does not extend to malicious attacks on the courts. The Court issued guidelines on contempt, apology, and the conduct of advocates in sub‑judice matters.
Issues considered
- The applicability of the truth defence under Section 13 of the Contempt of Courts Act, 1971
- Whether the defence is in public interest and bona‑fide
- Whether the tweets and affidavit constitute criminal contempt (scandalising the court)
- Whether a genuine unconditional apology is required to purge contempt
- Appropriate sentencing for criminal contempt by an advocate
- Compatibility of contempt jurisdiction under Articles 129 and 215 with the Contempt Act
- Whether the contempt proceedings should be recalled or set aside
- Whether releasing statements to the press in a sub‑judice matter amounts to contempt
Legislation cited
- Advocates Act, 1961s. 34(1)
- Constitution of Indias. Article 121, s. Article 124(4), s. Article 124(5), s. Article 129, s. Article 19(1)(a), s. Article 19(2), s. Article 215
- Contempt of Courts Act, 1971s. 13(a), s. 13(b), s. 2, s. 8, s. 9
- General Clauses Act, 1897s. 3(22)
Subjects
contempt of courtcriminal contempttruth defenceSection 13 Contempt of Courts Actfreedom of speechArticle 19Article 129apologydebarmentadvocate conductjudicial independencesub‑judicemedia interferenceproportionalitypublic interest
Judgment
510 [2020]REPORTS
SUPREME COURT 8 S.C.R. 510 [2020] 8 S.C.R.
A IN RE: PRASHANT BHUSHAN AND ANR.
(Suo Motu Contempt Petition (Crl.) No. 1 of 2020)
AUGUST 31, 2020
[ARUN MISHRA, B. R. GAVAI AND
KRISHNA MURARI, JJ.]
B Contempt of Court – Criminal Contempt of Court – In suo
motu proceedings, Contemnor (an advocate) held guilty by Supreme
Court – Court granted time to Contemnor to make unconditional
apology, if he so desired – Contemnor filed supplementary statement
reiterating that his statements in twitter were bonafide and pleaded
truth as valid defence – Held: The twin requirement for considering
C the truth as valid defence, as per s. 13 of Contempt of Courts Act,
1971, is that such defence is in public interest and the request for
invoking such defence is bona fide – In the facts of the case, the
defence taken cannot be said to be either in public interest or
bonafide, rather the Contemnor has indulged in making reckless
allegations further aggravating the contempt – Even after conviction
D order, no remorse expressed nor apology submitted – A simple
warning is not going to suffice in the present case – Duly balancing
the factors as to the offender, offence and convicting judgment and
the defence taken and in view of conduct of the contemnor, showing
magnanimity, the Court, instead of imposing severe punishment,
E sentenced the contemnor with a nominal fine of Rs. 1/- – On default
the Contemnor to undergo simple imprisonment for a period of 3
months and further be debarred from participating in Supreme Court
for a period of 3 years.
Judiciary – Though a fair criticism of judgment is permissible
in law, a person cannot exceed the right u/Art.19(1)(a) to scandalize
F the institution – Constitution of India – Art.19(1)(a).
Judiciary – If a scathing attack is made on the judges, it
would become difficult for them to work fearlessly and with the
objectivity of approach to the issues – The judgment can be criticized
– However, motives to the Judges need not be attributed, as it brings
administration of justice into disrepute – Administration of Justice.
G
Advocates / Legal Profession – Lawyers, as a class, are looked
by the public as intelligentsia.
Constitution of India – Art.19(1)(a) – Free Speech is part of
Art. 19(1)(a) – However, it cannot be said that while exercising
power u/Art.129, the Court is interfering with the rights under
H Art.19(1)(a) – Supreme Court being a court of record can punish
510
IN RE: PRASHANT BHUSHAN AND ANR. 511
for contempt – Free Speech is essential to democracy, but it cannot A
denigrate one of the institutions of the democracy.
Constitution of India – Art.129 – While exercising powers u/
Art.129, the Court will have to strike a balance between the right u/
Art.19(1)(a) and restrictions under Art.19(2) – Constitution of India
– Art.19(1)(a) and 19(2).
Advocates / Legal Profession – Role and duty of – Held: B
Lawyers’ noble profession will lose all its significance and charm
and dignity if the lawyers are permitted to make any malicious,
scandalous and scurrilous allegations against the institution of
which they are part – Lawyers are supposed to be fearlessly
independent and robust but at the same time respectful to the C
institution.
Judiciary – Interference with judicial process – Release of
statement to press in advance – Held: In a sub judice matter,
releasing statement to the press in advance is an act of impropriety
and has the effect of interfering with the judicial process and the
fair decision making and is clearly an attempt to coerce the decision D
of the Court by the influence of newspaper and media, which cannot
be said to be conducive for fair administration of justice and would
further tantamount to undue interference in the independent judicial
making process which is the very foundation of institution of
administration of justice – Administration of Justice.
Contempt of Court – Criminal contempt – Apology – Held: E
The Court has to be satisfied as to the genuineness of the apology
to make an order that contemnor has purged himself of the contempt.
Administration of Justice – It is not expected of a person who
is a part of the system of administration of justice and who owes a
duty to the said system, to make tweets capable of shaking the
confidence of general public and further making wild allegations F
in affidavit thereby further attempting to malign the institution.
Rule of Law – Supremacy of – Strong arm of the law strikes
a blow on him who challenges supremacy of the rule of law by
fouling its source and stream – Court has to act only where attack
is beyond a permissible limit. G
Disposing of the contempt proceedings, the Court
HELD: 1.1 Section 13 of Contempt of Courts Act, 1971
would show that for considering the truth as valid defence there
is a twin requirement. That such a defence is in public interest
and that the request for invoking the said defence is bona fide.
H
512 SUPREME COURT REPORTS [2020] 8 S.C.R.
A On the examination of the defence of the contemnor, the Court
concurs with the submission made by the Attorney General that
the defence cannot be said to be either in the public interest or a
bona fide one. In this respect it will also be pertinent to note that
when the counsel for the contemnor was heard in presence, he
had fairly stated that he would not read further averments in the
B affidavit in reply of the contemnor because it will further malign
the reputation of this Court. Thus, the view of the Attorney
General that the defence should be taken off the record is
endorsed. Though the tweet was of two lines, the affidavit in reply
refers to series of allegations made by the contemnor with regard
to the functioning of a large number of retired as well as sitting
C Judges including the Chief Justices as to their role on the judicial
as well as on administrative side. If the averments are considered
for taking truth as a defence, it would amount nothing else but
the aggravation of the contempt. Therefore, the defence taken
cannot be said to be either in the public interest or bona fide one.
On the contrary, it is more derogatory to the reputation of this
D
Court and would amount to further scandalizing and bringing
administration of justice in disrepute, in which the common citizen
of this country has faith and approaches this Court as a last resort
for getting justice. As the averments are based on political
consideration, and therefore cannot be considered to support the
E case of the contemnor of truth as a defence. The allegations made
are scandalous and are capable of shaking the very edifice of the
judicial administration and also shaking the faith of common man
in the administration of justice. [Paras 20, 26-28, 32 and 33][534-
G-H; 538-C-H; 539-D-E]
Indirect Tax Practitioners’ Association v. R.K. Jain
F (2010) 8 SCC 281; Subramanian Swamy v. Arun
Shourie (2014) 12 SCC 344 : [2014] 13 SCR 581 –
referred to.
1.2 Though there is a Freedom of Speech, freedom is never
absolute because the makers of the Constitution have imposed
certain restrictions upon it. Particularly when such Freedom of
G
Speech is sought to be abused and it has the effect of scandalising
the institution as a whole and the persons who are part of the
said institution and cannot defend themselves publicly, the same
cannot be permitted in law. Though a fair criticism of judgment is
permissible in law, a person cannot exceed the right under Article
H 19(1)(a) of the Constitution to scandalize the institution.
[Para 34][539-F-G]
IN RE: PRASHANT BHUSHAN AND ANR. 513
1.3 The norms of judicial conduct provide that Judges cannot A
express an opinion in the public. The Judges have to express
their opinion by their judgments, and they cannot enter into public
debate or go to press. It is very easy to make any allegation
against the Judges in the newspaper and media. Judges have to
be the silent sufferer of such allegations, and they cannot counter
such allegations publicly by going on public platforms, newspapers B
or media. Nor can they write anything about the correctness of
the various wild allegations made, except when they are dealing
with the matter. Retired Judges do have the prestige that they
have earned by dint of hard work and dedication to this institution.
They are also not supposed to be answering each and every
allegation made and enter into public debate. Thus, it is necessary C
that when they cannot speak out, they cannot be made to suffer
the loss of their reputation and prestige, which is essential part
of the right to live with dignity. The Bar is supposed to be the
spokesperson for the protection of the judicial system. They are
an integral part of the system. The Bar and Bench are part of the
D
same system i.e. the judicial system, and enjoy equal reputation.
If a scathing attack is made on the judges, it would become difficult
for them to work fearlessly and with the objectivity of approach
to the issues. The judgment can be criticized. However, motives
to the Judges need not be attributed, as it brings the
administration of justice into disrepute. [Para 35][539-H; 540-A- E
D]
C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and
Others, (1995) 5 SCC 457 : [1995] 3 Suppl. SCR 319;
Pravin C. Shah v. K.A. Mohd Ali and Another (2001) 8
SCC 650 : [2001] 3 Suppl. SCR 675 - relied on.
Halsbury’s Laws of England, Fourth Edition, Volume F
9, in para 27 – referred to.
1.4 The plea of the contemnor was that if defence of good
faith, as provided in Section 3(22) of the General Clauses Act is
taken into consideration, it will have to be held that the act done
by the contemnor was done in good faith if it was done honestly, G
may be done negligently. The perusal of the comments can neither
be said to be done honestly or in good faith. It cannot be said that
a person who is the lawyer having 35 years standing, who has
made malicious and scandalous comments in the tweets and
amplified them by the averments made in the affidavit in reply
which have the effect of denigrating the very institution to which H
514 SUPREME COURT REPORTS [2020] 8 S.C.R.
A he belongs, can be made honestly or in good faith. [Para 82][577-
G-H; 578-A-B]
Reynolds v. Times Newspapers Ltd. and Others (1999)
4 All ER 609 – referred to.
1.5 The contemnor has tried to justify the averments made
B on the basis of the Press Conference dated 12.01.2018 of the
four senior-most Judges of this Court. Concept of equality before
law, what is permissible not as to what is impermissible. It is
settled that negative equality cannot be claimed as there is no
concept of negative equality. Truth can be the defence to the
Judges also, but they are bound by their judicial norms, ethics,
C and code of conduct. Similarly, the code of conduct for advocates
is equally applicable to the lawyers, being part of the system.
The Rules of Professional Ethics formed by the Bar Council,
though couched under statutory power, are themselves not
enough to prescribe or proscribe the nobility of profession in
entirety. The nobility of profession encompasses, over and above,
D the Rules of Ethics. Lawyers, as a class, are looked by the public
as intelligentsia. [Para 44][552-D-G]
R. Muthukrishnan v. The Registrar General of The High
Court of Judicature at Madras (2019) 16 SCC 407 :
[2019] 1 SCR 589; Tehseen Poonawalla v. Union of
E India & Another (2018) 6 SCC 72 : [2018] 9 SCR 1 –
relied on.
1.6 The defence taken in the affidavit cannot be said to be
either bona fide or in the public interest. Both the tweets coupled
with averments in the reply affidavit are capable of shaking the
F confidence of the public in the institution as a whole. The second
tweet is capable of creating an impression that the entire Supreme
Court in the last six years has played a vital role in the destruction
of democracy. [Para 50][565-E-F]
Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC
156 : [2017] 13 SCR 189; D. C. Saxena v. Chief Justice
G of India (1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677
– relied on.
2.1 It cannot be disputed that Free Speech is part of Article
19(1)(a) of the Constitution. However, it cannot be said that while
exercising power under Article 129 of the Constitution, the Court
H is interfering with the rights under Article 19(1)(a) of the
IN RE: PRASHANT BHUSHAN AND ANR. 515
Constitution. Supreme Court being a court of record can punish A
for contempt. Free Speech is essential to democracy can also not
be disputed, but it cannot denigrate one of the institutions of the
democracy. Democracy is based on free debate and open
discussion, however, cannot go to the extent of the scurrilous
attack and shaking the faith of the general public in such institution.
Freedom of speech and expression includes the right to impart B
and receive information, which includes freedom to hold an
opinion. No doubt, one is free to form an opinion and make fair
criticism but if such an opinion is scandalous and malicious, the
public expression of the same would also be at the risk of the
contempt jurisdiction. No doubt that free speech, as envisaged
under Article 19(1)(a) of the Constitution is a fundamental right. C
However, it cannot be forgotten that rights under Article 19(1) of
the Constitution are subject to reasonable restrictions under
Article 19(2) of the Constitution and rights of others cannot be
infringed in the process. The same have to be balanced. While
exercising the powers under Article 129 of the Constitution, the
D
Court will have to strike a balance between the right under Article
19(1)(a) and the restrictions under Article 19(2) of the
Constitution. Freedom of press is also an important aspect in a
democracy. One cannot control the thinking process and words
operating in the mind of one individual, but when it comes to
expression, it has to be within the constitutional limits. Lawyers’ E
noble profession will lose all its significance and charm and dignity
if the lawyers are permitted to make any malicious, scandalous
and scurrilous allegations against the institution of which they
are part. The lawyers are supposed to be fearlessly independent
and robust but at the same time respectful to the institution.
[Para 81][576-G-H] F
Maneka Gandhi v. Union of India and Another (1978)
1 SCC 248 : [1978] 2 SCR 621– followed.
Secretary, Ministry of Information and Broadcasting,
Government of India & Ors. v. Cricket Association of
Bengal & Ors., (1995) 2 SCC 161 : [1995] 1 SCR 1036 G
– relied on.
2.2. The Court has weighed the pros and cons, rights, and
limitations and thereafter rendered a considered decision
regarding conviction. On consideration of proportionality there
is no room to entertain the submission that applying the doctrine
H
516 SUPREME COURT REPORTS [2020] 8 S.C.R.
A of proportionality the balance will have to tilt in favour of the
fundamental rights as against restrictions and that reasonableness
means substantive and procedural reasonableness and imports
proportionality. [Para 83][578-C; 578-F]
State of Madras & Ors. v. V.G. Row (1952) SCR 597,
B Chintaman Rao & Ors. v. State of Madhya Pradesh
[1950] SCR 759, Papnasam Labour Union v. Madura
Coats Ltd. and Ors. (1995) 1 SCC 501 : [1994] 6 Suppl.
SCR 369, State of Andhra Pradesh & Ors. v. McDowell
and Co. & Ors. (1996) 3 SCC 709 : [1996] 3 SCR
721, Union of India (UOI) & Ors. v. G. Ganayutham
C (Dead) by Lrs. (1997) 7 SCC 463 : [1997] 3 Suppl.
SCR 549; Teri Oat Estates (P) Ltd. v. U.T. Chandigarh
& Ors. (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235;
Om Kumar & Ors. v. Union of India (UOI) (2001) 2
SCC 386 : [2000] 4 Suppl. SCR 693, Anuj Garg &
Ors. v. Hotel Association of India & Ors. (2008) 3 SCC
D 1 : [2007] 12 SCR 991; Chairman, All India Railway
Rec. Board & Ors. v. K. Shyam Kumar & Ors. (2010) 6
SCC 614 : [2010] 6 SCR 291 – referred to.
3. The lawyers and litigants going to press or media in a
sub judice matter is another question that is at the fore in this
E matter. While hearing the matter, the contemnor talked to the
press and media. The statement which was made by him pursuant
to the order dated 20.08.2020, was also published well in advance
in extenso, word to word, in the newspaper and media. In a sub
judice matter, releasing such statement to the press in advance
is an act of impropriety and has the effect of interfering with the
F judicial process and the fair decision making and is clearly an
attempt to coerce the decision of the Court by the influence of
newspaper and media, which cannot be said to be conducive for
the fair administration of justice and would further tantamount to
undue interference in the independent judicial making process
which is the very foundation of institution of administration of
G justice. If such kind of action is resorted to in a sub judice matter,
that too by an advocate who is facing a criminal contempt, it
virtually tantamount to using a forum or platform which is not
supposed to be used ethically and legally. More so, in a serious
case of criminal contempt and particularly after the conviction
has been recorded by this Court, it indicates that the tolerance
H
IN RE: PRASHANT BHUSHAN AND ANR. 517
of the Court is being tested for no good reasons by resorting to A
unscrupulous methods. [Para 66][572-C-G]
4. So far as the inconsistency between the judgments of
this Court in *E.M. Sankaran Namboodripad and **P.N. Duda
cases is concerned, the legal position enunciated in both the
judgments is one and the same. May be in one case by applying B
the same law the court found the statements made were
contemptuous and in other case the Court found that the
statement made was not contemptuous. [Para 71][573-G-H; 574-
A]
*E.M. Sankaran Namboodripad v. T. Narayanan
Nambiar (1970) 2 SCC 325 : [1971] 1 SCR 697; **P.N. C
Duda v. P. Shiv Shanker & Others (1988) 3 SCC 167 :
[1988] 3 SCR 547 – relied on.
Shreya Singhal v. Union of India (2015) 5 SCC 1 :
[2015] 5 SCR 963; Baradakanta Mishra v. Registrar
of Orissa High Court & another (1974) 1 SCC 374 : D
[1974] 2 SCR 282; Brahma Prakash Sharma and
Others v. The State of Uttar Pradesh [1953] SCR 1169;
In Re: Hira Lal Dixit and two others, [1955] 1 SCR
677 – referred to.
5. The pleas of the contemnor that contempt jurisdiction is
vague and colonial, in effect amount to reviewing the view taken E
by the Court in the convicting judgment. The Court need not
again consider the submissions, inasmuch as all his submissions
have been elaborately considered in the convicting judgment.
The Court has exercised the jurisdiction with full circumspection,
care, and precautions. While sentencing, the Court has to act F
with objectivity in relation to the person and the actual effect.
Therefore, the Court cannot accede to the request that the
decision dated 14.08.2020 should be withdrawn or recalled.
[Paras 72, 74 and 75][574-D; 574-G-H; 575-A]
Murray & Co. v. Ashok Kumar Newatia and Another
(2000) 2 SCC 367 : [2000] 1 SCR 367 – relied on. G
R. v. Almon (1965) Wilm 243; Mcleod v. St. Aubyn
(1899) AC 549 (PC), R. v. Gary (1900) 2 QB 36 DC;
R. v. Colsely 9 May 1931 DC, Dhoorika v. Director of
Public Prosecutions (Commonwealth Lawyers’
Association Intervening); (2015) AC 875, R. v.
Blackburn (1968) 1 ALL ER 763 – referred to. H
518 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 6. The question that there is no conflict between the
constitutional jurisdiction under Articles 129 and 215 of the
Constitution and the provisions of the Contempt of Courts Act,
1971 has been dealt with in the convicting judgment and what is
the procedure under Articles 129 and 215 of the Constitution
has been considered in #Vijay Kurle case. [Paras 76 and 78] [575-
B B-C; 575-H]
Pallav Sheth v. Custodian & Ors. (2001) 7 SCC 549 :
[2001] 1 Suppl. SCR 387 (76); Maheshwari Peri &
others v. High Court of Judicature at Allahabad
(2016) 14 SCC 251 : [2016] 3 SCR 213 (77) – referred
C to.
#In Re: Vijay Kurle and Ors., (2020) SCC Online SC
407 – relied on
7. It will not be of any relevance as to whether a copy of the
Contempt Petition was supplied or not. No doubt that though
initially a Contempt Petition was filed in this Court which was
D placed on the administrative side of this Court, this Court had
decided to initiate suo motu proceedings. Only that part of the
petition i.e. the first tweet made by the contemnor was one of the
basis for taking action against the contemnor. The relevant tweet
has specifically been mentioned in the order dated 22.07.2020.
No other part of the petition was taken into consideration for
E proceeding against the contemnor. Insofar as the second tweet
is concerned, which was on the basis of the report published in
the Time of India dated 22.07.2020, the Court had decided to
take suo motu cognizance of the same. The only requirement is
that the Court must follow principles of natural justice. The Court
specifically made aware the contemnor about the basis on which
F
the Court took suo motu cognizance. Not only that but the
contemnor understood the basis on which the Court was
proceeding, as is evident from the affidavit in reply filed by him.
[Para 80][576-C-G]
8.1 Merely undergoing the penalty imposed on a contemnor
G is sufficient to complete the process of purging himself for the
contempt. In case of sentence of fine, the contemnor can pay the
fine and continue to persist with contemptuous conduct again
and again. Something more is required to purge the criminal
contempt. Even a statement of apology is not enough to purge
the contempt. The Court has to be satisfied as to the genuineness
H
IN RE: PRASHANT BHUSHAN AND ANR. 519
of the apology to make an order that contemnor has purged A
himself of the contempt. Before contempt is purged, the advocate
could suffer the consequences of Rule 11 of the Rules framed
under Section 34(1) of Advocates Act, 1961, which postulates
that in case the advocate has been found guilty of contempt of
court, his authority to act or plead in any court stands snapped.
[Para 38][548-F-H; 549-A] B
Pravin C. Shah v. K.A. Mohd Ali and Another (2001) 8
SCC 650 : [2001] 3 Suppl. SCR 675; Bar Council of
India v. High Court of Kerala (2004) 6 SCC 311 : [2004]
1 Suppl. SCR 649; Supreme Court Bar Association v.
Union of India (1998) 4 SCC 409 : [1998] 2 SCR 795; C
Roshan Lal Ahuja, In Re: (1993) Supp. 4 SCC 446 :
[1992] 3 Suppl. SCR 257 – relied on.
‘Restatement of Values of Judicial Life’ adopted in
the Chief Justices’ Conference at New Delhi on
September 18-19, 1992 – referred to.
D
8.2 One of the attending circumstances which is required
to be taken into consideration while sentencing is the person
who makes the statement. It is not expected of a person who is a
part of the system of administration of justice and who owes a
duty to the said system, to make such tweets which are capable
of shaking the confidence of general public and further making E
wild allegations in the affidavit thereby further attempting to malign
the said institution. Such an act by responsible person who is
part of this system cannot be ignored or overlooked.
[Para 51][565-G-H]
8.3 There is no justification to make such a remark/tweet, F
particularly when it is made by a lawyer with 35 years standing,
who is an officer of the Court and advocates enjoy equal dignity
in the system. In spite of Attorney General’s insistence that the
averments made in the defence should be withdrawn and regret
should be submitted, the Counsel for the contemner stated that
the contemnor is not ready to withdraw the defence taken in the G
reply. That further makes it clear that while insisting with the
unjustifiable defence and insistence to go with it makes the entire
episode the one which cannot be ignored. [Para 52][566-A-B]
8.4 Merely because a lawyer is involved in the filing of the
public interest litigation for the public good it does not arm him
H
520 SUPREME COURT REPORTS [2020] 8 S.C.R.
A to harm the very system of which he is a part. Though expectation
from an ordinary citizen may be different, the duties and
expectations that are expected from a lawyer of long standing
are on higher side. An advocate cannot forget his ethical duty
and responsibility and cannot denigrate the very system of which
he/she is an integral part. Fair criticism is not to be silenced, but
B an advocate has to remind himself/herself, where he/she crosses
the zone of propriety, and the Court cannot continuously ignore
it, and the system cannot be made to suffer. When the criticism
turns into malicious and scandalous allegations thereby tending
to undermine the confidence of the public and the institution as a
whole, such a criticism cannot be ignored. [Para 53][566-C-E]
C
8.5 As regards the plea of the contemner that the Court
should consider the various statements made by some of the
retired Judges, journalists, and others, is founded on the fact
that the Court should be influenced by the opinion expressed in
the newspapers and other media, when the Court is hearing a
D matter. The Court cannot be guided by such opinions expressed
on the public platform and the Court while exercising its judicial
duties does not render its decision on the basis of the trial made
by the media and public opinion. The Court cannot abdicate its
duty and has to be uninfluenced by the statements published in
various articles published in the media and opinions expressed
E therein. It has to decide the case uninfluenced by such opinions.
[Para 54][566-F-H; 567-A]
Attorney-General v. Times Newspaper Ltd. (1973) 3 All
ER 54 – referred to.
8.6 The Court is unmoved by the plea that this Court will
F be criticized, in case it inflicts any punishment upon the
contemnor. While exercising judicial functions, the Court cannot
take into consideration whether it will be praised or criticized for
the judgment which it renders. The Court is required to decide
the cases on the basis of the law as it correctly stands, in its
perception and understanding. The Court has to be always ready
G for its fair criticism. [Para 57][567-G-H; 568-A]
R.K. Anand v. Registrar, Delhi High Court (2009) 8 SCC
106 : [2009] 11 SCR 1026; Reliance Petrochemicals
Ltd. v. Proprietors of Indian Express News-Papers
Bombay Pvt. Ltd. and others (1988) 4 SCC 592 : [1988]
H 3 Suppl. SCR 212; State of Maharashtra v. Rajendra
IN RE: PRASHANT BHUSHAN AND ANR. 521
Jawanmal Gandhi (1997) 8 SCC 386 : [1997] 4 Suppl. A
SCR 68; Santosh Kumar Satishbhushan Bariyar v. State
of Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90
– relied on.
Contempt of Court, Third Edition by C.J. Miller – referred
to. B
8.7 The plea was taken that relevant factors required to be
taken into consideration for sentencing are the offender, the
offence and statutory or other defences. With respect to the
offender, he is a lawyer having of 35 years of standing and has
also pursued various public interest litigations. No doubt that
this would be a relevant factor while balancing the decision to be C
taken by the Court. However, at the same time, the uncalled
statements made in the affidavit for pursuing truth as a defence
can also not be ignored. Since, in 2009 contempt petition various
questions have been framed by this Court which will have to be
answered, the pendency of the said contempt petition cannot be
considered to be a factor in reflecting on the question of sentence D
in the present matter. Even the present Attorney General had
filed a contempt case against the contemnor which is pending
before this Court. [Paras 68 and 69][573-C-E]
Re: Times of India and Hindu (2013) Cr.L.J. 932 –
distinguished. E
8.8 Even after recording the judgment of conviction, no
remorse has been expressed by the contemnor, nor apology has
been submitted. It was argued that apology is being coerced from
the contemnor. In the supplementary statement dated 24.08.2020,
the contemnor has stated that “At the hearing the court asked F
me to take 2-3 days to reconsider the statement I made in the
court.” However, the order specifically states, “We have given
time to the contemnor to submit unconditional apology, if he so
desires.” It is a settled position of law that the Court speaks
through its judgments and orders. Virtual exchange during the
course of the proceedings is not what is the order of the Court G
but it could be a tentative expression of that exchange during
the course of hearing. However, ultimately what is final is the
order of the Court, which has the seal of it. It would have been
better if the aforesaid part was not mentioned in the supplementary
statement, but the Court cannot stop anybody from making any
statement, but it is not a proper statement as to what should H
522 SUPREME COURT REPORTS [2020] 8 S.C.R.
A have been the words in the order of the Court. The Court has
not coerced the contemnor to submit the apology and has clearly
mentioned that time was given to submit unconditional apology,
“if he so desires”. It was his decision to submit it or not. However,
he has chosen to submit a supplementary statement. The desire
of the Attorney General that he/contemnor should withdraw the
B allegation and express regret, has also gone unheeded. Simple
issuance of warning is not going to suffice in the instant case.
[Paras 84 and 87][579-C-H; 581-B]
Andre Paul Terence Ambard v. The Attorney General of
Trinidad and Tobago (1936) All ER 704 – referred to.
C 8.9 No doubt that while exercising the right of freedom of
speech the fair criticism of the system is welcome and the Judges
cannot be hyper sensitive even when distortions and criticism
overstep the limit. However, the same cannot be stretched to
permit to make malicious and scandalous statement. The Court
has to act only in the case where the attack is beyond a permissible
D limit, the strong arm of the law strikes a blow on him who
challenges the supremacy of the rule of law by fouling its source
and stream. The Court has applied the aforesaid guidelines and
standards. [Paras 85 and 86][580-A-C]
Re: S. Mulgaokar (1978) 3 SCC 339 : [1978] 3 SCR
E 162 – referred to.
8.10 Pursuant to the conviction in a criminal case, the Bar
Council of India can suspend the enrolment, if it so desires. It is
also open to this Court to debar from practicing in a Court. The
Court is not afraid of sentencing the contemnor either with
F imprisonment or from debarring him from the practice. His
conduct reflects adamance and ego, which has no place to exist
in the system of administration of justice and in noble profession,
and no remorse is shown for the harm done to the institution to
which he belongs. At the same time, the Court cannot retaliate
merely because the contemnor has made a statement that he is
G neither invoking the magnanimity or the mercy of this Court and
he is ready to submit to the penalty that can be lawfully be inflicted
upon him for what the Court has determined to be an offence.
[Para 89][581-C-E]
Supreme Court Bar Association v. Union of India (1998)
4 SCC 409 : [1998] 2 SCR 795 – relied on.
H
IN RE: PRASHANT BHUSHAN AND ANR. 523
8.11 The Court, from the very beginning, was desirous of A
giving quietus to this matter. Directly or indirectly, the contemnor
was persuaded to end this matter by tendering an apology and
save the grace of the institution as well as the individual, who is
an officer of the Court. However, for the reasons best known to
him he has neither shown regret in spite of persuasion or the
advice of the Attorney General. Thus, the Court has to consider B
imposing an appropriate sentence upon him. Duly balancing the
factors as to the offender, offence, the convicting judgment and
the defence taken the Court has to decide the question of
sentence. The act committed by the contemnor is a very serious
one. He has attempted to denigrate the reputation of the
institution of administration of justice of which he himself is a C
part. [Paras 90 and 91][581-F-H; 582-A]
8.12 Taking into consideration the conduct of the contemnor
if the Court does not take cognizance of such conduct, it will give
a wrong message to the lawyers and litigants throughout the
country. However, by showing magnanimity, instead of imposing D
any severe puishment, the contemnor is sentenced with a nominal
fine of Re.1/- (Rupee one). The same is to be deposited with the
Registry of this Court failing which he shall undergo a simple
imprisonment for a period of three months and further be debarred
from practising in this Court for a period of three years.
[Paras 92 and 93][582-F-G] E
Case Law Reference
[2015] 5 SCR 963 referred to Para 2 (iv)
[1974] 2 SCR 282 referred to Para 2 (iv)
[1953] SCR 1169 referred to Para 2 (vi) F
[1955] 1 SCR 677 referred to Para 2(vi)
(2010) 8 SCC 281 referred to Para 22
[2014] 13 SCR 581 referred to Para 23
[1995] 3 Suppl. SCR 319 relied on Para 36 G
[2001] 3 Suppl. SCR 675 relied on Para 37
[2004] 1 Suppl. SCR 649 relied on Para 41
[1998] 2 SCR 795 relied on Para 41
[1992] 3 Suppl. SCR 257 relied on Para 42 H
524 SUPREME COURT REPORTS [2020] 8 S.C.R.
A [2019] 1 SCR 589 relied on Para 44
[2018] 9 SCR 1 relied on Para 46
[2017] 13 SCR 189 relied on Para 48
[1996] 3 Suppl. SCR 677 relied on Para 48
B [2009] 11 SCR 1026 relied on Para 59
[1988] 3 Suppl. SCR 212 relied on Para 59
[1997] 4 Suppl. SCR 68 relied on Para 61
[2009] 9 SCR 90 relied on Para 62
C [1971] 1 SCR 697 relied on Para 71
[1988] 3 SCR 547 relied on Para 71
[2000] 1 SCR 367 relied on Para 75
[2001] 1 Suppl. SCR 387 referred to Para 76
D [2016] 3 SCR 213 referred to Para 77
(2020) SCC Online SC 407 relied on Para 78
[1978] 2 SCR 621 followed Para 81
[1995] 1 SCR 1036 relied on Para 81
E [1952] SCR 597 referred to Para 83
[1950] SCR 759 referred to Para 83
[1994] 6 Suppl. SCR 369 referred to Para 83
[1996] 3 SCR 721 referred to Para 83
F [1997] 3 Suppl. SCR 549 referred to Para 83
[2003] 6 Suppl. SCR 1235 referred to Para 83
[2000] 4 Suppl. SCR 693 referred to Para 83
[2007] 12 SCR 991 referred to Para 83
G [2010] 6 SCR 291 referred to Para 83
[1978] 3 SCR 162 referred to Para 85
[1998] 2 SCR 795 relied on Para 89
INHERENT JURISDICTION: Suo Motu Contempt Petition (Crl.)
No. 1 of 2020.
H
IN RE: PRASHANT BHUSHAN AND ANR. 525
Petition seeking initiation of contempt proceedings for willfully A
and deliberately publicly passing the derogatory remark against the
Hon’ble Chief Justice of India (CJI).
K.K. Venugopal, AG, Dushyant A. Dave, Rajeev Dhawan,
Chandra Uday Singh, Sr. Advs., Kamini Jaiswal, Rohit Kumar Singh,
Ms. Neha Rathi, Ms. Rani Mishra, Ms. Cheryl Dsouza, Ms. Hima
B
Lawrence, Prasanna S., Advs. for the appearing parties.
Prashant Bhushan (Respondent-in-person)
JUDGMENT
The following Judgment of the Court was delivered :
1. Heard Shri K.K. Venugopal, learned Attorney General for India, C
Dr. Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior
counsel, and the contemnor-Shri Prashant Bhushan.
2. After having adjudged Shri Prashant Bhushan, Advocate, guilty
of contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and
Shri Dushyant Dave, learned senior counsel appearing for the contemnor-
Shri Prashant Bhushan raised the following arguments: - D
(i) That the copy of the petition on the basis of which the suo
motu cognizance was taken by this Court with respect to first tweet,
filed by Shri Mahek Maheshwari, was not furnished, in spite of the
application having been filed by the contemnor. Thus, it could not be
ascertained whether the complaint was mala fide or even personally or E
politically motivated.
(ii) The factors relevant for sentencing are the offender, the
offence, the convicting judgment, statutory or other defences relating to
a substantial interference with justice, truth, bona fides, and public interest
in disclosure.
(iii) The contemnor is a lawyer of 35 years of standing, who has F
pursued public interest litigation successfully at some personal and
professional cost. He got appreciation from the Court. He is a founding
member of Campaign for Judicial Accountability, which includes several
senior counsel of repute. He has brought certain corruption cases and
causes to the Court such as V. Ramaswamy case, Coal Mining case, G
Goa Mining case, Orissa Mining case, an issue relating to the appointment
of CVC, CBI Director’s case, Lok Pal case etc. In the public interest,
he has filed several petitions like Narmada case, Bofors case, Police
Reform case, Passive Euthanasia case, HPCL Privatization case, Street
Vendors case, Rickshaw Pullers case, Singur Land Acquisition case,
Draught Management, Gram Nyayalaya, and Electoral Bond cases. H
526 SUPREME COURT REPORTS [2020] 8 S.C.R.
A (iv) The nature of offences is another ingredient to be taken into
consideration while imposing sentence; (i) Offence must be clear without
ambiguity. (ii) The potential offender must know/understand whether
he/she is guilty of the offence. The offence of scandalizing the Court is
notoriously vague. It has not been defined by the Statute. It is called
“vague and wandering” jurisdiction. Reliance has been placed on Shreya
B
Singhal v. Union of India, 2015 (5) SCC 1. Such an offence has to
be handled with care and used sparingly, as observed in Baradakanta
Mishra v. Registrar of Orissa High Court & another, (1974) 1
SCC 374. There is inconsistency in various decisions relating to the
conviction and sentence due to vagueness.
C (v) The very jurisdiction of contempt is scandalizing and is vague
and colonial. Several decisions have been relied upon where the Court
has not even initiated contempt in such matters. In some of the countries,
the contempt law being an archaic law has already been done away
with. There cannot be any compromise with the Right to Free Speech
D and Opinions.
(vi) In the convicting judgment, reliance was placed on the
decisions in P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC
167), Brahma Prakash Sharma and Others v. The State of Uttar
Pradesh, 1953 SCR 1169, and In Re: Hira Lal Dixit and two others,
(1955) 1 SCR 677. The decision in E.M. Sankaran Namboodripad
E v. T. Narayanan Nambiar, (1970) 2 SCC 325, has been superseded by
P.N. Duda (supra).In so far as the decision in E.M. Sankaran
Namboodripad (supra) is concerned, the same would not be relevant
inasmuch as the same stands overruled by P.N. Duda (supra). Similarly,
reliance on the judgment in C. K. Daphtary & Ors. v. O. P. Gupta &
F Ors., (1971) 1 SCC 626, is also not relevant inasmuch as the said
judgment is delivered prior to amendment of Contempt of Courts Act,
1971 (for short ‘the Act’), vide which Section 13(b) was brought on
statute book, so as to allow truth as a defence. The Court has to exercise
jurisdiction with great care and caution and only in cases that are clear
beyond reasonable doubt. In Re: S. Mulgaokar, (1978) 3 SCC 339,
G various guidelines have been laid down by this Court. They are, free
market of ideas, fair criticism in good faith when it is in the public interest,
the surrounding circumstances, the person who is making the comments,
his knowledge in the field regarding which the comments are made and
the intended purpose. After considering all these guidelines, an advocate
H should be punished by exercising extreme caution only in the case where
IN RE: PRASHANT BHUSHAN AND ANR. 527
the tendency is to create disaffection and disrepute to erode the judicial A
system. Though the convicting judgment, on the one hand cites various
decision on balance, on the contrary holds the contemnor guilty for the
fair criticism made by him.
(vii) There is no conflict between the constitutional jurisdiction
under Articles 129, 215 of the Constitution of India, and the Contempt of B
Courts Act. In Pallav Sheth v. Custodian & Ors., (2001) 7 SCC
549, it was laid down that the powers of punishment for contempt under
Article 129 of the Constitution of India have to be exercised in consonance
with the Contempt of Courts Act, 1971.
(viii) Besides that, provisions in Sections 8 and 9 and newly
amended Section 13(a) of the Act requires that the Court cannot impose C
a sentence unless it is satisfied that contempt is of such a nature that
substantially interferes or tends substantially to interfere with the due
course of justice. Thus, special responsibility is cast on the Court to
examine the extent of interference. The provisions of newly amended
Section 13(a) amply make it clear that the Court is required to assess D
the situation itself. However, in the convicting judgment no such inquiry
has taken place and as such an order of sentence cannot be passed.
Truth should ordinarily be allowed as a defence unless the Court finds,
that it is only a camouflage to escape the consequences of the deliberate
attempt of scandalizing the Court. Section 13 of the Act enables theCourt
to permit justification by truth as a valid defence in any contempt E
proceedings if it satisfied that such a defence is in the public interest and
the request for invoking the defence is bona fide. Reliance is placed on
Subramanian Swamy v. Arun Shourie, (2014) 12 SCC 344. In so
far as the first tweet is concerned, the tweet is an expression of opinion
by Shri Prashant Bhushan that due to the Courts not functioning physically F
the litigants are deprived of real access to justice. It is submitted that
this opinion also finds support from the observations made by this court
In Re: Financial aid for members of Bar affected by a pandemic
(In Suo Moto Writ Petition No.8/2020) that due to the suspension of
physical functioning of the Courts, the lawyers have been deprived of
sources of earning their livelihood. G
(ix) With respect to the second tweet, this is again an expression
of opinion by Shri Prashant Bhushan. It was submitted that this opinion
has been shared by many others including the retired judges of this Court.
Reference was also made to the Press Conference held on 12.01.2018
by the Sitting Judges of this Court. The role of the Supreme Court and H
528 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the last four Chief Justices is detailed in the reply affidavit. The reply is
backed up by details and materials and how and why Shri Bhushan
came to form opinion reflected in the tweet. The defence of truth was
not examined at all in the convicting judgment and the same needs to be
examined at the stage of sentencing in compliance with Section 13(b) of
the Act.
B
(x) Article 19(1)(a) guarantees Freedom of Speech and Expression.
Provisions in Articles 129 and 142(2) of the Constitution of India, cannot
override Article 19(1)(a) and 19(2) of the Constitution of India. Free
Speech is a highly valued right and is essential for democracy. In a
democracy, there is a right to dissent. There is the freedom to build an
C opinion. Publication in good faith is suggested for the Press, as defined
in General Clauses Act in Section 3(22), it is a valid defence, if done
honestly, whether it is done negligently or not.
(xi) It was submitted that while applying the Principle of
Proportionality the balance will have to tilt in favour of the rights as
D against restrictions, inasmuch as the rights are fundamental in nature.
The opinions of the contemnor were bona fide and devoid of malice.
Thus, the decision with respect to the conviction is required to be recalled,
and in such an event, no sentence can be imposed. It was submitted that
the judgments are open to scrutiny and this Court should welcome
outspoken comments including criticism by ordinary citizen.
E
(xii) Debarring an advocate from appearing is to be done only in
rare cases, as a last resort, only after giving requisite notice for the
same, as held in R.K. Anand v. Registrar, Delhi High Court,
(2009) 8 SCC 106.
(xiii) There should not be an attempt to coerce the contemnor into
F making an apology on the basis that nothing else would be acceptable.
3. At the beginning of the proceedings itself, we had called upon
Shri K.K. Venugopal, learned Attorney General for India, to address us.
In the morning session, we have heard him at great length. Learned
Attorney General stated that this Court, by showing magnanimity, should
G not impose any sentence on Shri Prashant Bhushan. He submitted that
the tweets made by Shri Prashant Bhushan could be considered as
bonafide criticism in order to seek improvement in the functioning of the
institution. He further stated, that taking into consideration the causes
represented by Shri Prashant Bhushan in various public interest litigation
and the service rendered by him to different classes of society by bringing
H
IN RE: PRASHANT BHUSHAN AND ANR. 529
their issues to the notice of this Court, the Court should consider not A
imposing any sentence on him.
4. When controverted with various statements made by the
contemnor in the affidavit in reply, the learned Attorney General fairly
conceded that such statements were not warranted.
5. He suggested that such statements be either withdrawn by the B
contemnor or should be taken off from the pleadings. When further
confronted with the Contempt Petition filed by the learned Attorney
General in one of the proceedings against the very same contemnor, the
learned Attorney General submitted that since Shri Prashant Bhushan,
on a piece of paper, had expressed his regret, he expressed desire not to
pursue the said contempt proceedings. The learned Attorney General C
attempted to read out the statement made by Shri Prashant Bhushan in
the contempt proceedings, which was initiated in the year 2009, wherein
Shri Prashant Bhushan had expressed his regret. However, when it was
pointed out to the learned Attorney General that the said statement was
not pertaining to the present proceedings but earlier proceedings, the D
learned Attorney General stated that when Shri Prashant Bhushan had
expressed regret in the other proceedings, there is no reason as to why
he should not express regret in the present proceedings also. He stated
that the same could be considered as regret in the present proceedings
also. We had also pointed out to the learned Attorney General that the
contemnor was pressing the statement made in the affidavit and was E
raising a plea of truth as a defence. In such circumstances, whether it
would be appropriate on the part of this Court to take off the said
statements from the pleadings. The learned Attorney General, faced
with this situation, stated that unless the contemnor withdraws the said
statements, in view of the provisions of Section 13(b) of the Act, the F
statements cannot be taken off.
6. After hearing the learned Attorney General, we heard Dr. Rajeev
Dhavan, learned senior counsel appearing for the contemnor, at length.
The submissions made on behalf of Dr. Dhavan, learned senior counsel,
have already been stated hereinabove.
G
7. After Dr. Dhavan, learned senior counsel completed his
arguments, we again called upon learned Attorney General, to address
us by taking into consideration the submissions made on behalf of
contemnor by Dr. Dhavan, learned senior counsel. Learned Attorney
General was fair enough to state that insistence on the part of the
H
530 SUPREME COURT REPORTS [2020] 8 S.C.R.
A contemnor to press into service various objectionable statements made
in the pleading was not warranted and also not justifiable. He fairly
stated that in the interest of the administration of justice, the contemnor
ought not to have made such statements. He further stated that such
statements, which were also concerning various sitting and retired judges
of this Court, including the past and present Chief Justices, were totally
B
unjustifiable, specifically so when the retired or sitting judges were not in
a position to defend themselves. He further submitted that no verdict
could be passed without hearing such Judges, and as such, the process
would be endless. He submitted that such a defence cannot be looked
into. From the tenor of the submission made by the learned Attorney
C General, it was apparent that the learned Attorney General was at pains
due to the statements made by the contemnor in the affidavit.
8. However, learned Attorney General appealed to the magnanimity
of this Court and submitted that instead of sentencing the contemnor
with any sentence this Court should magnanimously warn him, to be
D careful while making any statement with regard to the judges or the
institution of administration of justice and he should be further warned
not to repeat any such act hereafter. He stated that apart from sending
a right message to the contemnor, it will also send an appropriate message
to all the members of the Bar as well as all citizens throughout the country
that one should be careful and cautious while making any statement
E with regard to the judges or the institution of administration of justice.
The learned Attorney General reiterated on several occasions that
magnanimity is required to be shown by this Court. He further submitted
that this Court by showing magnanimity, should give a quietus to this
matter by giving warning to him instead of sentencing him.
F 9. During the course of the arguments, it was also brought to the
notice of Shri Dhavan, learned senior counsel, the fact that prior to the
supplementary statement of the contemnor dated 24.08.2020, before it
being filed in the Court, it was widely published in media on 24/25.08.2020.
It was also brought to the notice of Dr. Dhavan, learned senior counsel,
that the contemnor had made various statements with regard to the present
G proceedings either in the press interviews or in the webinars, which
have the effect of influencing the present proceedings and as to whether
such an act at the behest of a litigant was permissible in law.
10. Dr. Dhavan, learned senior counsel, fairly stated that publication
of the supplementary statement of the contemnor in various print as well
H as other media in advance was not proper, and he also stated that no
IN RE: PRASHANT BHUSHAN AND ANR. 531
lawyer or litigant should either give an interview, talk to the press or A
make any statement with regard to pending litigation before any Court.
He submitted that though a fair criticism of judgment after the judgment
was pronounced was permissible in law, making any statement or giving
press interviews during the pendency of the litigation was not permissible.
11. When Dr. Dhavan, learned senior counsel was confronted B
with the situation as to how the sitting, as well as retired judges who are
not supposed to speak to anyone or to give interviews can defend the
allegations made against them, Dr. Dhavan responded that though this
Court should not reprimand the contemnor for the tweets made by him,
this Court should lay down guidelines for the precautions to be observed
by the lawyers and litigants while making any statements with respect to C
the judges and the institution of administration of justice. He submitted
that this, apart from giving a right signal to the contemnor, would also
give a signal to all the members of the Bar in the country.
12. Dr. Dhavan, learned senior counsel, also submitted that we
should consider the criticism made by the various persons in the media, D
and in case any punishment is inflicted, the Court will have to face further
criticism.
In Re: Defence
13. It is urged by Dr. Dhavan, learned senior counsel, that defence
of the contemnor had not been taken into consideration while convicting E
him for criminal contempt. He pressed the defence in service to be
examined before imposing any sentence. We propose to examine the
defence. However, before we do so, to put the record straight, it is
necessary to mention that Shri Dave, learned senior counsel appearing
for Shri Prashant Bhushan, while arguing on 05.08.2020, after reading
few lines from the affidavit in reply upto paragraph 38 stated that he F
would not go to the defence taken as reading of that would further malign
the reputation of this Court. Since he did not press the defence into
service, there was no occasion to take the same into consideration,
specifically, in view of the aforesaid statement made by the learned
senior counsel. G
14. It will be relevant to refer to the statement made by the
contemnor which was made and read out before this Court by the
contemnor on 20.08.2020, which reads as under:-
“I have gone through the judgment of this Hon’ble Court. I
am pained that I have been held guilty of committing contempt of H
532 SUPREME COURT REPORTS [2020] 8 S.C.R.
A the Court whose majesty I have tried to uphold — not as a courtier
or cheerleader but as a humble guard — for over three decades,
at some personal and professional cost. I am pained, not because
I may be punished, but because I have been grossly misunderstood.
I am shocked that the court holds me guilty of “malicious,
B scurrilous, calculated attack” on the institution of administration
of justice. I am dismayed that the Court has arrived at this
conclusion without providing any evidence of my motives to launch
such an attack. I must confess that I am disappointed that the
court did not find it necessary to serve me with a copy of the
complaint on the basis of which the suo motu notice was issued,
C nor found it necessary to respond to the specific averments made
by me in my reply affidavit or the many submissions of my counsel.
I find it hard to believe that the Court finds my tweet “has
the effect of destabilizing the very foundation of this important
pillar of Indian democracy”. I can only reiterate that these two
D tweets represented my bonafide beliefs, the expression of which
must be permissible in any democracy. Indeed, public scrutiny is
desirable for healthy functioning of judiciary itself. I believe that
open criticism of any institution is necessary in a democracy, to
safeguard the constitutional order. We are living through that
moment in our history when higher principles must trump routine
E obligations, when saving the constitutional order must come before
personal and professional niceties, when considerations of the
present must not come in the way of discharging our responsibility
towards the future. Failing to speak up would have been a
dereliction of duty, especially for an officer of the court like myself.
F My tweets were nothing but a small attempt to discharge
what I considered to be my highest duty at this juncture in the
history of our republic. I did not tweet in a fit of absence
mindedness. It would be insincere and contemptuous on my part
to offer an apology for the tweets that expressed what was and
continues to be my bonafide belief. Therefore, I can only humbly
G
paraphrase what the father of the nation Mahatma Gandhi had
said in his trial: I do not ask for mercy. I do not appeal to
magnanimity. I am here, therefore, to cheerfully submit to any
penalty that can lawfully be inflicted upon me for what the Court
has determined to be an offence, and what appears to me to be
H the highest duty of a citizen.”
IN RE: PRASHANT BHUSHAN AND ANR. 533
15. The contemnor, in the statement made in this Court on A
20.08.2020, stated that the Court did not consider it necessary to respond
to the specific averments made by him in the reply affidavit. The
contemnor was present along with his counsel, and what was urged was
taken into consideration. When we had heard Shri Dave, learned senior
counsel appearing on behalf of the contemnor, on 05.08.2020, the
B
contemnor was very much present there and we had taken into
consideration the submissions which were made in the presence of the
contemnor.
16. After the judgment of conviction, when this Court had granted
time to the contemnor to submit unconditional apology, if he so desired,
the supplementary statement has been made by Shri Prashant Bhushan C
on 24.08.2020 to the following effect: -
“It is with deep regret that I read the order of this Hon’ble
Court dated 20th of August. At the hearing the court asked me to
take 2-3 days to reconsider the statement I made in the court.
However, the order subsequently states: “We have given time to D
the contemnor to submit unconditional apology, if he so desires.”
I have never stood on ceremony when it comes to offering
an apology for any mistake or wrongdoing on my part. It has been
a privilege for me to have served this institution and bring several
important public interest causes before it. I live with the realisation E
that I have received from this institution much more than I have
had the opportunity to give it. I cannot but have the highest regard
for the institution of the Supreme Court.
I believe that the Supreme Court is the last bastion of hope
for the protection of fundamental rights, the watchdog institutions
and indeed for constitutional democracy itself. It has rightly been F
called the most powerful court in the democratic world, and often
an exemplar for courts across the globe. Today in these troubling
times, the hopes of the people of India vest in this Court to ensure
the rule of law and the Constitution and not an untrammelled rule
of the executive. G
This casts a duty, especially for an officer of this Court like
myself, to speak up, when I believe there is a deviation from its
sterling record. Therefore, I express myself in good faith, not to
malign the Supreme Court or any particular Chief Justice, but to
offer constructive criticism so that the court can arrest any drift
away from its long-standing role as a guardian of the Constitution H
and custodian of people’s rights.
534 SUPREME COURT REPORTS [2020] 8 S.C.R.
A My tweets represented this bonafide belief that I
continue to hold. Public expression of these beliefs was I believe,
in line with my higher obligations as a citizen and a loyal officer of
this court. Therefore, an apology for expression of these beliefs,
conditional or unconditional, would be insincere. An apology cannot
be mere incantation and any apology has to, as the court has itself
B
put it, be sincerely made. This is specially so when I have made
the statements bonafide and pleaded truths with full details, which
have not been dealt with by the Court. If I retract a statement
before this court that I otherwise believe to be true or offer an
insincere apology, that in my eyes would amount to the contempt
C of my conscience and of an institution that I hold in highest esteem.”
17. In both the statements he has reiterated that “I have made
statements bona fide and pleaded truths with full details which have not
been dealt with by the Court”.
18. Without going into the scope of the aspects to be examined
D
while sentencing, we propose to consider the defence taken by the
contemnor in his reply affidavit.
19. For appreciating the submission made by the contemnor it will
be relevant to refer to Section 13 of the Amended Act of 1971, as
amended in 2006, which reads thus: -
E
“13. Contempts not punishable in certain cases –
Notwithstanding anything contained in any law for the time being
in force –
(a) no court shall impose a sentence under this Act for a contempt
F of court unless it is satisfied that the contempt is of such a nature
that it substantially interferes, or tends substantially to interfere
with the due course of justice;
(b) the court may permit, in any proceeding for contempt of court,
justification by truth as a valid defence if it is satisfied that it is in
G public interest and the request for invoking the said defence is
bona fide.”
20. The aforesaid provision would show that for considering the
truth as valid defence there is a twin requirement. That such a defence
is in public interest and that the request for invoking the said defence is
H bona fide.
IN RE: PRASHANT BHUSHAN AND ANR. 535
21. The sine qua non for considering the truth as a valid defence A
are that the Court should be satisfied that defence is in the public interest
and the request for invoking the said defence is bona fide. Be that as it
may, since the contemnor is insisting that at this stage also the Court is
required to take truth as a defence into consideration, we would be
required to consider the same, lest the contemnor feels that we have
B
avoided its consideration.
22. In Indirect Tax Practitioners’ Association v. R.K. Jain,
(2010) 8 SCC 281, it was held thus: -
“39. The matter deserves to be examined from another angle.
The substituted Section 13 represents an important legislative C
recognition of one of the fundamentals of our value system i.e.
truth. The amended section enables the court to permit justification
by truth as a valid defence in any contempt proceeding if it is
satisfied that such defence is in public interest and the request for
invoking the defence is bona fide. In our view, if a speech or
D
article, editorial, etc. contains something which appears to be
contemptuous and this Court or the High Court is called upon to
initiate proceedings under the Act and Articles 129 and 215 of the
Constitution, the truth should ordinarily be allowed as a defence
unless the Court finds that it is only a camouflage to escape the
consequences of deliberate or malicious attempt to scandalise the E
court or is an interference with the administration of justice. Since,
the petitioner has not even suggested that what has been
mentioned in the editorial is incorrect or that the respondent has
presented a distorted version of the facts, there is no warrant for
discarding the respondent’s assertion that whatever he has written
F
is based on true facts and the sole object of writing the editorial
was to enable the authorities concerned to take corrective/remedial
measures.
42. In our view, a person like the respondent can
appropriately be described as a whistleblower for the system who
G
has tried to highlight the malfunctioning of an important institution
established for dealing with cases involving revenue of the State
and there is no reason to silence such a person by invoking Articles
129 or 215 of the Constitution or the provisions of the Act.”
H
536 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 23. In Subramanian Swamy (supra), this Court approved the
decision rendered in Indirect Tax Practitioners’ Association v. R.K. Jain
(supra) and observed: -
“13. The legal position with regard to truth as a defence in contempt
proceedings is now statutorily settled by Section 13 of the 1971
B Act (as substituted by Act 6 of 2006). The Statement of Objects
and Reasons for the amendment of Section 13 by Act 6 of 2006
read as follows:
“1. The existing provisions of the Contempt of Courts Act,
1971 have been interpreted in various judicial decisions to the
C effect that truth cannot be pleaded as a defence to a charge of
contempt of court.
2. The National Commission to Review the Working of the
Constitution [NCRWC] has also in its report, inter alia,
recommended that in matters of contempt, it shall be open to the
D court to permit a defence of justification by truth.
3. The Government has been advised that the amendments
to the Contempt of Courts Act, 1971 to provide for the above
provision would introduce fairness in procedure and meet the
requirements of Article 21 of the Constitution.
E 4. Section 13 of the Contempt of Courts Act, 1971 provides
certain circumstances under which contempt is not punishable. It
is, therefore, proposed to substitute the said section, by an
amendment.
5. The Contempt of Courts (Amendment) Bill, 2003 was
F introduced in the Lok Sabha on 8-5-2003 and the same was
referred to the Department-related Parliamentary Standing
Committee on Home Affairs for examination. The Hon’ble
Committee considered the said Bill in its meeting held on 2-9-
2003. However, with the dissolution of the 13th Lok Sabha, the
Contempt of Courts (Amendment) Bill, 2003 lapsed. It is proposed
G
to reintroduce the said Bill with modifications of a drafting nature.”
15. A two-Judge Bench of this Court in R.K. Jain [(2010) 8
SCC 281] had an occasion to consider Section 13 of the 1971
Act, as substituted by Act 6 of 2006. In para 39 the Court said:
(SCC p. 311)
H
IN RE: PRASHANT BHUSHAN AND ANR. 537
“39. … The substituted Section 13 represents an important A
legislative recognition of one of the fundamentals of our value
system i.e. truth. The amended section enables the court to
permit justification by truth as a valid defence in any contempt
proceeding if it is satisfied that such defence is in public interest
and the request for invoking the defence is bona fide. In our
B
view, if a speech or article, editorial, etc. contains something
which appears to be contemptuous and this Court or the High
Court is called upon to initiate proceedings under the Act and
Articles 129 and 215 of the Constitution, the truth should
ordinarily be allowed as a defence unless the Court finds that
it is only a camouflage to escape the consequences of deliberate C
or malicious attempt to scandalise the court or is an interference
with the administration of justice. Since, the petitioner has not
even suggested that what has been mentioned in the editorial
is incorrect or that the respondent has presented a distorted
version of the facts, there is no warrant for discarding the
D
respondent’s assertion that whatever he has written is based
on true facts and the sole object of writing the editorial was to
enable the authorities concerned to take corrective/remedial
measures.”
Thus, the two-Judge Bench has held that the amended
section enables the Court to permit justification by truth as a valid E
defence in any contempt proceedings if it is satisfied that such
defence is in public interest and the request for invoking the defence
is bona fide. We approve the view of the two-Judge Bench in
R.K. Jain [(2010) 8 SCC 281]. Nothing further needs to be
considered with regard to second question since the amendment F
in contempt law has effectively rendered this question redundant.”
24. It was submitted by Dr. Dhavan, learned senior counsel, that
the second tweet was an expression of opinion by Mr. Prashant Bhushan
that the democracy has been substantially destroyed in the country in
the past six years and the Court has also played its role in the same. G
However, the Court did not go into the said defence. It was submitted
that the said opinion was carved out on the basis of material which was
placed on record along with the affidavit in reply. However, the said
material was also not taken into consideration by this Court.
H
538 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 25. Learned Attorney General, after being taken through the
defence taken by the contemnor in the reply, fairly stated that contemnor
should be asked to withdraw such defences and it should be taken off
the records.
26. With regard to the averments made in the affidavit in reply of
B Shri Prashant Bhushan, the learned Attorney General submitted that the
affidavit contains various allegations against several retired Chief Justices
as well as the sitting and retired Judges of this Court. He submitted that
such a defence cannot be examined without hearing the Judges against
whom such allegations are made and therefore such a defence cannot
be considered unless the persons against whom allegations are made
C are heard. He, therefore, stated that the contemnor should express regret
for taking such a defence and withdraw the same. On the examination
of the defence of the contemnor, we concur with the submission made
by the learned Attorney General that the defence cannot be said to be
either in the public interest or a bona fide one. In this respect it will also
D be pertinent to note that when Mr. Dave, learned senior counsel, was
heard in the presence of the contemnor, on 05.08.2020, he fairly stated
that he would not read further averments in the affidavit in reply of the
contemnor because it will further malign the reputation of this Court.
Thus, we endorse the view of learned Attorney General that the defence
should be taken off the record and, in our opinion, it is neither bona fide
E nor in the public interest and as such it fails to clear the twin test, which
we are examining.
27. One of the reasons why we hold so is that though the tweet is
of two lines, the affidavit in reply refers to series of allegations made by
the contemnor with regard to the functioning of a large number of retired
F as well as sitting Judges including the Chief Justices as to their role on
the judicial as well as on administrative side. If the averments are
considered for taking truth as a defence, it would amount nothing else
but the aggravation of the contempt.
28. We are of the view that, in the circumstances, the defence
G taken cannot be said to be either in the public interest or bona fide one.
On the contrary, it is more derogatory to the reputation of this Court and
would amount to further scandalizing and bringing administration of justice
in disrepute, in which the common citizen of this country has faith and
approaches this Court as a last resort for getting justice.
H
IN RE: PRASHANT BHUSHAN AND ANR. 539
29. He averred that this Court had surrendered to the majoritarian A
executive and that when majoritarian executive was acting in tyranny,
the Supreme Court has not been able to stand to correct the executive.
30. The averment in the affidavit also referred to formation of the
Benches by the Chief Justice. There is reference to various cases dealt
with by 9-Judges and 5-Judges of this Court and has casted aspersions B
on the entire justice delivery system and on a large number of Judges.
31. He has further averred with respect to the withdrawal of the
case which was filed questioning the decision of rejection of impeachment
motion moved against the then Chief Justice. He has also referred to
various matters pending adjudication before this Court and also adversely C
commented on the functioning of this Court. He has raised eyebrows on
the Ayodhya verdict and blamed this Court.
32. After going through the various averments made in the affidavit
in reply for supporting truth as defence, we are of the considered view
that the defence taken is neither in the public interest nor bona fide one, D
but the contemnor has indulged in making reckless allegations against
the institution of administration of justice. As referred by the learned
Attorney General the averments are based on political consideration,
and therefore in our view cannot be considered to support the case of
the contemnor of truth as a defence.
E
33. The allegations made are scandalous and are capable of shaking
the very edifice of the judicial administration and also shaking the faith
of common man in the administration of justice.
34. Though there is a Freedom of Speech, freedom is never
absolute because the makers of the Constitution have imposed certain F
restrictions upon it. Particularly when such Freedom of Speech is sought
to be abused and it has the effect of scandalising the institution as a
whole and the persons who are part of the said institution and cannot
defend themselves publicly, the same cannot be permitted in law. Though
a fair criticism of judgment is permissible in law, a person cannot exceed
the right under Article 19(1)(a) of the Constitution to scandalize the G
institution.
35. It is apparent that the contemnor is involved in making
allegations against the retired and sitting Judges. On one hand, our attention
was attracted by Shri Dushyant Dave, learned senior counsel, towards
the norms of judicial conduct which also provide that Judges cannot H
540 SUPREME COURT REPORTS [2020] 8 S.C.R.
A express an opinion in the public. The Judges have to express their opinion
by their judgments, and they cannot enter into public debate or go to
press. It is very easy to make any allegation against the Judges in the
newspaper and media. Judges have to be the silent sufferer of such
allegations, and they cannot counter such allegations publicly by going
on public platforms, newspapers or media. Nor can they write anything
B
about the correctness of the various wild allegations made, except when
they are dealing with the matter. Retired Judges do have the prestige
that they have earned by dint of hard work and dedication to this
institution. They are also not supposed to be answering each and every
allegation made and enter into public debate. Thus, it is necessary that
C when they cannot speak out, they cannot be made to suffer the loss of
their reputation and prestige, which is essential part of the right to live
with dignity. The Bar is supposed to be the spokesperson for the protection
of the judicial system. They are an integral part of the system. The Bar
and Bench are part of the same system i.e. the judicial system, and
enjoy equal reputation. If a scathing attack is made on the judges, it
D
would become difficult for them to work fearlessly and with the objectivity
of approach to the issues. The judgment can be criticized. However,
motives to the Judges need not be attributed, as it brings the administration
of justice into disrepute. In Halsbury’s Laws of England, Fourth
Edition, Volume 9, in para 27, it is observed that the punishment is
E inflicted, not for the purpose of protecting either the Court as a whole or
the individual Judges of the Court from repetition of the attack but for
protecting the public and especially those who either voluntarily or by
compulsion are subject to the jurisdiction of the Court, from the mischief
they will incur if the authority of the Tribunal is undermined or impaired.
Hostile criticism of the judges or judiciary is definitely an act of
F
scandalizing the Court. Defamatory publication concerning the Judge or
institution brings impediment to justice.
36. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee
and Others, (1995) 5 SCC 457, this Court dealt with a matter with
respect to allegation against the conduct of a Judge. A Resolution was
G passed by the Bar Council against Judge/Chief Justice of the High Court
alleging misconduct. This Court held that Bar Council cannot make
scurrilous criticism of conduct of the Judge/Chief Justice and pressurise
or coerce him to demit the office. Such action would constitute contempt
of court and affect independence of judiciary which is an essential
H attribute of rule of law and also affect judicial individualism. This Court
IN RE: PRASHANT BHUSHAN AND ANR. 541
further observed that, however, where the Bar honestly doubts the A
conduct of the Judge/Chief Justice and such doubt is based on authentic
and acceptable material, the proper course for officer-bearers of the
Bar Association would be to meet the Judge in camera and apprise him
or approach the Chief Justice of that High Court to deal with the matter
appropriately. When the allegation is against the Chief Justice of the
B
High Court, Bar Association should directly approach the Chief Justice
of India. Thereafter, the Chief Justice has to take a decision. Until such
decision is taken, the Bar should suspend all further action and await
response for a reasonable period. It was held that independence of the
judiciary is an essential attribute of rule of law, which is the basic feature
of the Constitution and that judiciary must be free from not only executive C
pressure but also from other pressures. Individual Judge has to feel secure
in view of social demand for active judicial role which he is required to
fulfil. This Court also considered that criticism of the judiciary is not
protected under Article 19(1)(a) of the Constitution. It was also observed
that fair criticism is based on the authentic and acceptable material
D
permissible but when criticism tends to create apprehension in the minds
of the people regarding integrity, ability and fairness of the Judge, it
amounts to contempt. Such criticism is not protected under Article
19(1)(a) of the Constitution. It was also observed that the Judge should
maintain high standard of conduct based on high tradition. It was held
thus :- E
“10. The diverse contentions give rise to the question whether
any Bar Council or Bar Association has the right to pass resolution
against the conduct of a Judge perceived to have committed
misbehaviour and, if so, what is its effect on independence of the
judiciary. With a view to appreciate the contentions in their proper F
perspective, it is necessary to have at the back of our mind the
importance of the independence of the judiciary. In a democracy
governed by rule of law under a written constitution, judiciary is
sentinel on the qui vive to protect the fundamental rights and to
poise even scales of justice between the citizens and the State or
the States inter se. Rule of law and judicial review are basic G
features of the Constitution. As its integral constitutional structure,
independence of the judiciary is an essential attribute of rule of
law. In S.P. Gupta v. Union of India [1981 Supp SCC 87] (SCC
p. 221, para 27) this Court held that if there is one principle which
runs through the entire fabric of the Constitution it is the principle H
542 SUPREME COURT REPORTS [2020] 8 S.C.R.
A of the rule of law, and under the Constitution it is the judiciary
which is entrusted with the task of keeping every organ of the
State within the limits of the law and thereby making the rule of
law meaningful and effective. Judicial review is one of the most
potent weapons in the armoury of law. The judiciary seeks to
protect the citizen against violation of his constitutional or legal
B
rights or misuse or abuse of power by the State or its officers.
The judiciary stands between the citizen and the State as a bulwark
against executive excesses and misuse or abuse of power by the
executive. It is, therefore, absolutely essential that the judiciary
must be free from executive pressure or influence which has been
C secured by making elaborate provisions in the Constitution with
details. The independence of judiciary is not limited only to the
independence from the executive pressure or influence; it is a
wider concept which takes within its sweep independence from
any other pressure and prejudices. It has many dimensions, viz.,
fearlessness of other power centres, economic or political, and
D
freedom from prejudices acquired and nourished by the class to
which the judges belong.
Judicial individualism — Whether needs protection?
11. Independent judiciary is, therefore, most essential when liberty
E of citizen is in danger. It then becomes the duty of the judiciary to
poise the scales of justice unmoved by the powers (actual or
perceived) undisturbed by the clamour of the multitude. The heart
of judicial independence is judicial individualism. The judiciary is
not a disembodied abstraction. It is composed of individual men
and women who work primarily on their own. Judicial individualism,
F in the language of Justice Powell of the Supreme Court of United
States in his address to the American Bar Association, Labour
Law Section on 11-8-1976, is “perhaps one of the last citadels of
jealously preserved individualism …”. Justice Douglas in his
dissenting opinion in Stephen S. Chandler v. Judicial Council
G of the Tenth Circuit of the United States [398 US 74] stated:
“No matter how strong an individual judge’s spine, the
threat of punishment — the greatest peril to judicial
independence — would project as dark a shadow whether cast
by political strangers or by judicial colleagues. A federal judge
H must be independent of every other judge…. Neither one alone
IN RE: PRASHANT BHUSHAN AND ANR. 543
nor any number banded together can act as censor and place A
sanctions on him. It is vital to preserve the opportunities for
judicial individualism.”
27. The Advocates Act, 1961 gave autonomy to a Bar Council of
a State or Bar Council of India and Section 6(1) empowers them
to make such action deemed necessary to set their house in order, B
to prevent fall in professional conduct and to punish the incorrigible
as not befitting the noble profession apart from admission of the
advocates on its roll. Section 6(1)(c) and rules made in that behalf,
Sections 9, 35, 36, 36-B and 37 enjoin it to entertain and determine
cases of misconduct against advocates on its roll. The members
of the judiciary are drawn primarily and invariably from the Bar C
at different levels. The high moral, ethical and professional
standards among the members of the Bar are preconditions even
for high ethical standards of the Bench. Degeneration thereof
inevitably has its eruption and tends to reflect the other side of the
coin. The Bar Council, therefore, is enjoined by the Advocates D
Act to maintain high moral, ethical and professional standards
which of late is far from satisfactory. Their power under the Act
ends thereat and extends no further. Article 121 of the Constitution
prohibits discussion by the members of Parliament of the conduct
of any Judge of the Supreme Court or of High Court in the
discharge of his duties except upon a motion for presenting an E
address to the President praying for the removal of the Judge as
provided under Article 124(4) and (5) and in the manner laid down
under the Act, the Rules and the rules of business of Parliament
consistent therewith. By necessary implication, no other forum or
fora or platform is available for discussion of the conduct of a F
Judge in the discharge of his duties as a Judge of the Supreme
Court or the High Court, much less a Bar Council or group of
practising advocates. They are prohibited to discuss the conduct
of a Judge in the discharge of his duties or to pass any resolution
in that behalf.
G
29. In Halsbury’s Laws of England (4th Edn.) Vol. 9, para 27, at
p. 21, it is stated that scandalising the court would mean any act
done or writing published which is calculated to bring a court or a
Judge into contempt, or to lower his authority, or to interfere with
the due course of justice or the lawful process of the court.
H
544 SUPREME COURT REPORTS [2020] 8 S.C.R.
A Scurrilous abuse of a Judge or court, or attacks on the personal
character of a Judge, are punishable contempts. Punishment is
inflicted, not for the purpose of protecting either the court as a
whole or the individual Judges of the court from repetition of the
attack, but for protecting the public, and especially those who
either voluntarily or by compulsion are subject to the jurisdiction
B
of the court, from the mischief they will incur if the authority of
the tribunal is undermined or impaired. In consequence, the court
has regarded with particular seriousness allegations of partiality
or bias on the part of a Judge or a court. Criticism of a Judge’s
conduct or of the conduct of a court even if strongly worded, is,
C however, not contempt, provided that the criticism is fair, temperate
and made in good faith and is not directed to the personal character
of a Judge or to the impartiality of a Judge or court.
30. In Oswald’s Contempt of Court (3rd Edn.), 1993, at p. 50 it
is stated that libel upon courts is made contempt
D “to keep a blaze of glory around them, and to deter people
from attempting to render them contemptible in the eyes of the
public…. A libel upon a court is a reflection upon the King, and
telling the people that the administration of justice is in weak or
corrupt hands, that the fountain of justice itself is tainted, and
E consequently that judgments which stream out of that fountain
must be impure and contaminated.”
A libel upon a Judge in his judicial capacity is a contempt, whether
it concerns what he did in court, or what he did judicially out of it.
At p. 91, it is stated that all publications which offend against the
F dignity of the court, or are calculated to prejudice the course of
justice, will constitute contempt. One of the natures of offences is
scandalising the courts. In Contempt of Court (2nd Edn.) by C.J.
Miller at p. 366, Lord Diplock is quoted from Chokolingo v.
Attorney General of Trinidad and Tobago [(1981) 1 All ER
244, 248] who spoke for the Judicial Committee summarising the
G position thus:
“ ‘Scandalising the court’ is a convenient way of
describing a publication which, although it does not relate to
any specific case either past or pending or any specific Judge,
is a scurrilous attack on the judiciary as a whole, which is
H
IN RE: PRASHANT BHUSHAN AND ANR. 545
calculated to undermine the authority of the courts and public A
confidence in the administration of justice.”
In Borrie and Lowe’s Law of Contempt (2nd Edn.) at p. 226 it is
stated that the necessity for this branch of contempt lies in the
idea that without well-regulated laws a civilised community cannot
survive. It is therefore thought important to maintain the respect B
and dignity of the court and its officers, whose task it is to uphold
and enforce the law, because without such respect, public faith in
the administration of justice would be undermined and the law
itself would fall into disrepute. Even in the latest Report on
Contempt of Court by Phillimore Committee to revise the penal
enforcement of contempt, adverting to Lord Atkin’s dictum that C
courts are satisfied to leave to public opinion attacks or comments
derogatory or scandalous to them, in paragraph 162, the Committee
had stated that at one stage
“we considered whether such conduct should be subject to
penal sanctions at all. It was argued that any Judge who was D
attacked would have the protection of the law of defamation,
and that no further protection is necessary. We have concluded,
however, that some restraints are still required, for two reasons.
First, this branch of the law of contempt is concerned with the
protection of the administration of justice, and especially the E
preservation of public confidence in its honesty and impartiality;
it is only incidentally, if at all, concerned with the personal
reputations of Judges. Moreover, some damaging attacks, for
example upon an unspecified group of Judges, may not be
capable of being made the subject of libel proceedings at all.
Secondly, Judges commonly feel constrained by their position F
not to take action in reply to criticism, and they have no proper
forum in which to do so such as other public figures may have.
These considerations lead us to the conclusion that there is
need for an effective remedy … against imputations of improper
or corrupt judicial conduct.” G
The Contempt of Courts Act, 1971 engrafted suitable amendments
accordingly.
Freedom of expression and duty of Advocate
H
546 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 31. It is true that freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution is one of the
most precious liberties in any democracy. But equally important is
the maintenance of respect for judicial independence which alone
would protect the life, liberty and reputation of the citizen. So the
nation’s interest requires that criticism of the judiciary must be
B
measured, strictly rational, sober and proceed from the highest
motives without being coloured by partisan spirit or pressure tactics
or intimidatory attitude. The Court must, therefore, harmonise
constitutional values of free criticism and the need for a fearless
curial process and its presiding functionary, the Judge. If freedom
C of expression subserves public interest in reasonable measure,
public justice cannot gag it or manacle it; but if the court considered
the attack on the Judge or Judges scurrilous, offensive, intimidatory
or malicious, beyond condonable limits, the strong arm of the law
must strike a blow on him who challenges the supremacy of the
rule of the law by fouling its source and stream. The power to
D
punish the contemner is, therefore, granted to the court not because
Judges need the protection but because the citizens need an
impartial and strong judiciary.
34. The threat of action on vague grounds of dissatisfaction would
create a dragnet that would inevitably sweep into its grasp the
E maverick, the dissenter, the innovator, the reformer — in one word
the unpopular. Insidious attempts pave way for removing the
inconvenient. Therefore, proper care should be taken by the Bar
Association concerned. First, it should gather specific, authentic
and acceptable material which would show or tend to show that
F conduct on the part of a Judge creating a feeling in the mind of a
reasonable person doubting the honesty, integrity, impartiality or
act which lowers the dignity of the office but necessarily, is not
impeachable misbehaviour. In all fairness to the Judge, the
responsible office-bearers should meet him in camera after
securing interview and apprise the Judge of the information they
G had with them. If there is truth in it, there is every possibility that
the Judge would mend himself. Or to avoid embarrassment to the
Judge, the office-bearers can approach the Chief Justice of that
High Court and apprise him of the situation with material they
have in their possession and impress upon the Chief Justice to
H deal with the matter appropriately.”
IN RE: PRASHANT BHUSHAN AND ANR. 547
37. It was argued by Shri Dhavan, learned senior counsel, that A
question of purging arises mainly in civil contempt. The question of purging
in criminal contempt was considered by this Court in Pravin C. Shah v.
K.A. Mohd Ali and Another, (2001) 8 SCC 650. The Bar Council
took the view that the purging of contempt can be only by regretting or
apologising in the case of criminal contempt and in civil contempt, by
B
subsequent compliance with the order or directions the contempt can be
purged. The following question arose:-
“23. Now we have to consider the crucial question — how can a
contemnor purge himself of the contempt? According to the
Disciplinary Committee of the Bar Council of India, purging oneself
of contempt can be done by apologising to the court. The said C
opinion of the Bar Council of India can be seen from the following
portion of the impugned order:
“Purging oneself of contempt can be only by regretting
or apologising in the case of a completed action of criminal
contempt. If it is a case of civil contempt, by subsequent D
compliance with the orders or directions the contempt can be
purged of. There is no procedural provision in law to get purged
of contempt by an order of an appropriate court.”
(i) Meaning of purging was considered by this Court thus:-
E
“24. Purging is a process by which an undesirable
element is expelled either from one’s own self or from a society.
It is a cleaning process. Purge is a word which acquired
implications first in theological connotations. In the case of a
sin, purging of such sin is made through the expression of
sincere remorse coupled with doing the penance required. In F
the case of a guilt, purging means to get himself cleared of the
guilt. The concept of purgatory was evolved from the word
“purge”, which is a state of suffering after this life in which
those souls, who depart this life with their deadly sins, are
purified and rendered fit to enter into heaven where nothing G
defiled enters (vide Words and Phrases, Permanent Edn., Vol.
35-A, p.307). In Black’s Law Dictionary the word “purge” is
given the following meaning: “To cleanse; to clear. To clear or
exonerate from some charge or imputation of guilt, or from a
contempt.” It is preposterous to suggest that if the convicted
H
548 SUPREME COURT REPORTS [2020] 8 S.C.R.
A person undergoes punishment or if he tenders the fine amount
imposed on him the purge would be completed.”
(ii) This Court considered how purging can take place thus:-
“25. We are told that a learned Single Judge of the Allahabad
High Court has expressed a view that purging process would
B be completed when the contemnor undergoes the penalty [vide
Madan Gopal Gupta (Dr) v. Agra University [AIR 1974 All.
39]]. This is what the learned Single Judge said about it: (AIR
p. 43, para 13)
“In my opinion a party in contempt purged its contempt by
C obeying the orders of the court or by undergoing the penalty
imposed by the court.”
26. Obeying the orders of the court would be a mode by which
one can make the purging process in a substantial manner when
it is a civil contempt. Even for such a civil contempt the purging
D process would not be treated as completed merely by the
contemnor undergoing the penalty imposed on him unless he
has obeyed the order of the court or he has undone the wrong.
If that is the position in regard to civil contempt the position
regarding criminal contempt must be stronger. Section 2 of the
E Contempt of Courts Act categorises contempt of court into
two categories. The first category is “civil contempt” which is
the wilful disobedience of the order of the court including breach
of an undertaking given to the court. But “criminal contempt”
includes doing any act whatsoever, which tends to scandalise
or lowers the authority of any court, or tends to interfere with
F the due course of a judicial proceeding or interferes with, or
obstructs the administration of justice in any other manner.”
38. This Court did not approve the view that merely undergoing
the penalty imposed on a contemnor is sufficient to complete the process
of purging himself for the contempt. In case of sentence of fine, the
G contemnor can pay the fine and continue to persist with contemptuous
conduct again and again. Something more is required to purge the criminal
contempt. Even a statement of apology is not enough to purge the
contempt. The Court has to be satisfied as to the genuineness of the
apology to make an order that contemnor has purged himself of the
contempt. Before contempt is purged, the advocate could suffer the
H
IN RE: PRASHANT BHUSHAN AND ANR. 549
consequences of Rule 11 of the Rules which postulates that in case the A
advocate has been found guilty of contempt of court, his authority to act
or plead in any court stands snapped.
39. In Pravin C. Shah (supra), this Court held thus:-
“22. We have already pointed out that Rule 11 of the Rules is a
self-operating provision. When the first postulate of it is completed B
(that the advocate has been found guilty of contempt of court) his
authority to act or plead in any court stands snapped, though
perhaps for the time being. If he does such things without the
express permission of the court he would again be guilty of
contempt of court besides such act being a misconduct falling C
within the purview of Section 34 of the Advocates Act. The interdict
as against him from appearing in court as a counsel would continue
until such time as he purges himself of the contempt.
27. We cannot therefore approve the view that merely
undergoing the penalty imposed on a contemnor is sufficient to D
complete the process of purging himself of the contempt,
particularly in a case where the contemnor is convicted of criminal
contempt. The danger in giving accord to the said view of the
learned Single Judge in the aforecited decision is that if a contemnor
is sentenced to a fine he can immediately pay it and continue to
commit contempt in the same court, and then again pay the fine E
and persist with his contemptuous conduct. There must be
something more to be done to get oneself purged of the contempt
when it is a case of criminal contempt.
28. The Disciplinary Committee of the Bar Council of India
highlighted the absence of any mode of purging oneself of the F
guilt in any of the Rules as a reason for not following the interdict
contained in Rule 11. Merely because the Rules did not prescribe
the mode of purging oneself of the guilt it does not mean that one
cannot purge the guilt at all. The first thing to be done in that
direction when a contemnor is found guilty of a criminal contempt G
is to implant or infuse in his own mind real remorse about his
conduct which the court found to have amounted to contempt of
court. Next step is to seek pardon from the court concerned for
what he did on the ground that he really and genuinely repented
and that he has resolved not to commit any such act in future. It is
H
550 SUPREME COURT REPORTS [2020] 8 S.C.R.
A not enough that he tenders an apology. The apology tendered should
impress the court to be genuine and sincere. If the court, on being
impressed of his genuineness, accepts the apology then it could
be said that the contemnor has purged himself of the guilt.
29. This Court has held in M.Y. Shareef v. Hon’ble Judges
B of the Nagpur High Court [AIR 1955 SC 19] that
“an apology is not a weapon of defence to purge the guilty of
their offence; nor is it intended to operate as a universal panacea,
but it is intended to be evidence of real contriteness”. (AIR p.
23, para 10)
C Ahmadi, J. (as the learned Chief Justice then was) in M.B. Sanghi,
Advocate v. High Court of Punjab and Haryana [(1991) 3 SCC
600] while considering an apology tendered by an advocate in a
contempt proceeding has stated thus: (SCC p. 603, para 2)
“And here is a member of the profession who has
D repeated his performance presumably because he was let off
lightly on the first occasion. Soft justice is not the answer —
not that the High Court has been harsh with him — what I
mean is he cannot be let off on an apology which is far from
sincere. His apology was hollow, there was no remorse — no
E regret — it was only a device to escape the rigour of the law.
What he said in his affidavit was that he had not uttered the
words attributed to him by the learned Judge; in other words
the learned Judge was lying — adding insult to injury — and
yet if the court finds him guilty (he contested the matter tooth
and nail) his unqualified apology may be accepted. This is no
F apology, it is merely a device to escape.”
30. A four-Judge Bench of this Court in Mulk Raj v. State of
Punjab [(1972) 3 SCC 839] made the following observations which
would throw considerable light on the question before us: (SCC p.
840, para 9)
G
“9. Apology is an act of contrition. Unless apology is
offered at the earliest opportunity and in good grace apology is
shorn of penitence. If apology is offered at a time when the
contemnor finds that the court is going to impose punishment it
ceases to be an apology and it becomes an act of a cringing
H coward. The High Court was right in not taking any notice of
IN RE: PRASHANT BHUSHAN AND ANR. 551
the appellant’s expression of apology ‘without any further A
word’. The High Court correctly said that acceptance of
apology in the case would amount to allow the offender to go
away with impunity after having committed gross contempt.”
40. This Court further held that till contempt is purged, the advocate
has to suffer the consequences of Rule 11. This Court held: - B
“34. The respondent Advocate continued to appear in all the courts
where he was earlier appearing even after he was convicted by
the High Court for criminal contempt without being objected by
any court. This is obviously on account of the fact that presiding
officers of the court were not informed of what happened. We, C
therefore, direct that in future, whenever an advocate is convicted
by the High Court for contempt of court, the Registrar of that
High Court shall intimate the fact to all the courts within the
jurisdiction of that High Court so that presiding officers of all courts
would get the information that the particular advocate is under
the spell of the interdict contained in Rule 11 of the Rules until he D
purges himself of the contempt.
35. It is still open to the respondent Advocate to purge himself of
the contempt in the manner indicated above. But until that process
is completed the respondent Advocate cannot act or plead in any
court situated within the domain of the Kerala High Court, including E
the subordinate courts thereunder. The Registrar of the High Court
of Kerala shall intimate all the courts about this interdict as against
the respondent Advocate.”
41. In Bar Council of India v. High Court of Kerala, (2004) 6
SCC 311, the ratio in Pravin C. Shah (supra) was affirmed by this Court. F
It was held that the Court has the power to punish under Article 129 of
the Constitution of India and can punish advocate. The Court relied the
decision in Supreme Court Bar Association v. Union of India, (1998)
4 SCC 409. It was held thus:-
“34. Although in a case of professional misconduct, this G
Court cannot punish an advocate in exercise of its jurisdiction
under Article 129 of the Constitution of India which can be imposed
on a finding of professional misconduct recorded in the manner
prescribed under the Advocates Act and the Rules framed
thereunder but as has been noticed in Supreme Court Bar Assn.
H
552 SUPREME COURT REPORTS [2020] 8 S.C.R.
A [(1998) 4 SCC 409] professional misconduct of the advocate
concerned is not a matter directly in issue in the matter of contempt
case.”
42. Roshan Lal Ahuja, In Re:, (1993) Supp. 4 SCC 446, it was
held that pleadings made had the effect on scandalizing and lowering the
B authority of the Court in relation to the judicial matters but also had the
effect of substantial interference with obstructing the administration of
justice. Unfounded and unwarranted aspersions had the tendency to
undermine the authority of the Court and would create distrust in the
mind of the public and on the capacity to impart fearless justice.
C 43. It will be relevant refer to the following clauses of the
‘Restatement of Values of Judicial Life’ adopted in the Chief
Justices’ Conference at New Delhi on September 18-19, 1992:-
“..(8) A Judge shall not enter into a public debate or express
his views in public on political matters or on matters that are pending
D or are likely to arise for judicial determination.
(9) A Judge is expected to let his judgment speak for
themselves. He shall not give interview to the media.”
44. The contemnor has tried to justify the averments made on the
basis of the Press Conference dated 12.01.2018 of the four senior-most
E Judges of this Court. Concept of equality before law, what is permissible
not as to what is impermissible. It is settled that negative equality cannot
be claimed as there is no concept of negative equality. We hope it was
the first and the last occasion that the Judges have gone to press, and
God gives wisdom to protect its dignity by internal mechanism, particularly,
F when allegations made, if any, publicly cannot be met by sufferer Judges.
It would cause suffering to them till eternity. Truth can be the defence to
the Judges also, but they are bound by their judicial norms, ethics, and
code of conduct. Similarly, the code of conduct for advocates is equally
applicable to the lawyers also, being part of the system. The Rules of
Professional Ethics formed by the Bar Council, though couched under
G statutory power, are themselves not enough to prescribe or proscribe
the nobility of profession in entirety. The nobility of profession
encompasses, over and above, the Rules of Ethics. Lawyers, as a class,
are looked by the public as intelligentsia, as observed in
R. Muthukrishnan v. The Registrar General of The High Court
of Judicature at Madras, (2019) 16 SCC 407. The relevant portion of
H
the judgment is extracted hereunder:-
IN RE: PRASHANT BHUSHAN AND ANR. 553
“25. The role of a lawyer is indispensable in the system of delivery A
of justice. He is bound by the professional ethics and to maintain
the high standard. His duty is to the court, to his own client, to the
opposite side, and to maintain the respect of opposite party counsel
also. What may be proper to others in the society, may be improper
for him to do as he belongs to a respected intellectual class of the
B
society and a member of the noble profession, the expectation
from him is higher. Advocates are treated with respect in society.
People repose immense faith in the judiciary and judicial system
and the first person who deals with them is a lawyer. Litigants
repose faith in a lawyer and share with them privileged information.
They put their signatures wherever asked by a lawyer. An advocate C
is supposed to protect their rights and to ensure that untainted
justice is delivered to his cause.
26. The high values of the noble profession have to be protected
by all concerned at all costs and in all the circumstances cannot
be forgotten even by the youngsters in the fight of survival in D
formative years. The nobility of the legal profession requires an
advocate to remember that he is not over attached to any case as
advocate does not win or lose a case, real recipient of justice is
behind the curtain, who is at the receiving end. As a matter of
fact, we do not give to a litigant anything except recognising his
rights. A litigant has a right to be impartially advised by a lawyer. E
Advocates are not supposed to be money guzzlers or ambulance
chasers. A lawyer should not expect any favour from the Judge
and should not involve by any means in influencing the fair decision-
making process. It is his duty to master the facts and the law and
submit the same precisely in the court, his duty is not to waste the F
courts’ time.”
72. The decision in Mohit Chaudhary, In re [Mohit Chaudhary,
In re, (2017) 16 SCC 78] has also been relied upon in which this
Court considered Rule 10 and debarred an advocate to practice
as Advocate-on-Record for a period of one month from the date G
of order. At the same time, this Court has observed that a lawyer
is under obligation to do nothing that shall detract from the dignity
of the Court. Contempt jurisdiction is for the purpose of upholding
honour or dignity of the court, to avoid sharp or unfair practices.
An advocate shall not to be immersed in a blind quest of relief for
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554 SUPREME COURT REPORTS [2020] 8 S.C.R.
A his client. “Law is not trade, briefs no merchandise”. His duty is
to legitimately present his side of the case to assist in the
administration of justice. The Judges are selected from the Bar
and purity of the Bench depends on the purity of the Bar. Degraded
Bar results in degraded Bench. The Court has referred to articles
and standard of processional conduct and etiquettes thus: (SCC
B
pp. 88-92, paras 20-28, 30 & 32)
“20. Warvelle’s Legal Ethics, 2nd Edn. at p. 182 sets out the
obligation of a lawyer as:
‘A lawyer is under obligation to do nothing that shall
C detract from the dignity of the court, of which he is himself
a sworn officer and assistant. He should at all times pay
deferential respect to the Judge, and scrupulously observe
the decorum of the courtroom.’
21. The contempt jurisdiction is not only to protect the reputation
D of the Judge concerned so that he can administer justice
fearlessly and fairly, but also to protect “the fair name of the
judiciary”. The protection in a manner of speaking, extends
even to the Registry in the performance of its task and false
and unfair allegations which seek to impede the working of the
Registry and thus the administration of justice, made with oblique
E motives cannot be tolerated. In such a situation in order to
uphold the honour and dignity of the institution, the Court has
to perform the painful duties which we are faced with in the
present proceedings. Not to do so in the words of P.B. Sawant,
J. in Ministry of Information & Broadcasting, In re [Ministry
F of Information & Broadcasting, In re, (1995) 3 SCC 619]
would: (SCC p. 635, para 20)
‘20. … The present trend unless checked is likely to lead
to a stage when the system will be found wrecked from
within before it is wrecked from outside. It is for the
G members of the profession to introspect and take the
corrective steps in time and also spare the courts the
unpleasant duty. We say no more.’
22. Now turning to the “Standards of Professional Conduct
and Etiquette” of the Bar Council of India Rules contained in
Section I of Chapter II, Part VI, the duties of an advocate
H
IN RE: PRASHANT BHUSHAN AND ANR. 555
towards the court have been specified. We extract the 4th A
duty set out as under:
‘4. An advocate shall use his best efforts to restrain and
prevent his client from resorting to sharp or unfair practices
or from doing anything in relation to the court, opposing
counsel or parties which the advocate himself ought not to B
do. An advocate shall refuse to represent the client who
persists in such improper conduct. He shall not consider
himself a mere mouthpiece of the client, and shall exercise
his own judgment in the use of restrained language in
correspondence, avoiding scurrilous attacks in pleadings,
and using intemperate language during arguments in court.’ C
23. In the aforesaid context the aforesaid principle in different
words was set out by Crampton, J. in R. v. O’ Connell [R. v. O’
Connell, (1844) 7 Irish Law Reports 313] as under:
‘The advocate is a representative but not a delegate. D
He gives to his client the benefit of his learning, his talents and
his judgment; but all through he never forgets what he owes to
himself and to others. He will not knowingly misstate the law,
he will not wilfully misstate the facts, though it be to gain the
case for his client. He will ever bear in mind that if he be an
advocate of an individual and retained and remunerated often E
inadequately, for valuable services, yet he has a prior and
perpetual retainer on behalf of truth and justice and there is no
Crown or other licence which in any case or for any party or
purpose can discharge him from that primary and paramount
retainer.’ F
24. The fundamentals of the profession thus require an advocate
not to be immersed in a blind quest of relief for his client. The
dignity of the institution cannot be violated in this quest as “law is
no trade, briefs no merchandise” as per Krishna Iyer, J. in Bar
Council of Maharashtra v. M.V. Dabholkar [Bar Council of G
Maharashtra v. M.V. Dabholkar, (1976) 2 SCC 291] (SCC p.
301, para 23).
25. It is also pertinent to note at this point, the illuminating words
of Vivian Bose, J. in ‘G’, a Senior Advocate of the Supreme
Court, In re [‘G’, a Senior Advocate of the Supreme Court, In
H
556 SUPREME COURT REPORTS [2020] 8 S.C.R.
A re, AIR 1954 SC 557 : 1954 Cri LJ 1410] , who elucidated: (AIR
p. 558, para 10)
‘10. … To use the language of the army, an advocate
of this Court is expected at all times to comport himself in a
manner befitting his status as an “officer and a gentleman”.’
B 26. It is as far back as in 1925 that an article titled “The Lawyer
as an Officer of the Court” [Virginia Law Review, Vol. 11, No. 4
(Feb 1925) pp. 263-77.] published in the Virginia Law Review,
lucidly set down what is expected from the lawyer which is best
set out in its own words:
C ‘The duties of the lawyer to the court spring directly
from the relation that he sustains to the court as an officer in
the administration of justice. The law is not a mere private
calling, but is a profession which has the distinction of being an
integral part of the State’s judicial system. As an officer of the
D court the lawyer is, therefore, bound to uphold the dignity and
integrity of the court; to exercise at all times respect for the
court in both words and actions; to present all matters relating
to his client’s case openly, being careful to avoid any attempt
to exert private influence upon either the Judge or the jury;
and to be frank and candid in all dealings with the court, “using
E no deceit, imposition or evasion”, as by misreciting witnesses
or misquoting precedents. “It must always be understood”, says
Mr Christian Doerfler, in an address before the Milwaukee
County Bar Association, in December 1911, “that the profession
of law is instituted among men for the purpose of aiding the
F administration of justice. A proper administration of justice does
not mean that a lawyer should succeed in winning a lawsuit. It
means that he should properly bring to the attention of the
court everything by way of fact and law that is available and
legitimate for the purpose of properly presenting his client’s
case.
G
His duty as far as his client is concerned is simply to
legitimately present his side of the case. His duty as far as the
public is concerned and as far as he is an officer of the Court
is to aid and assist in the administration of justice.”’
In this connection, the timely words of Mr Warvelle may
H
also well be remembered:
IN RE: PRASHANT BHUSHAN AND ANR. 557
‘But the lawyer is not alone a gentleman; he is a A
sworn minister of justice. His office imposes high moral
duties and grave responsibilities, and he is held to a strict
fulfilment of all that these matters imply. Interests of
vast magnitude are entrusted to him; confidence is
imposed in him; life, liberty and property are committed
B
to his care. He must be equal to the responsibilities which
they create, and if he betrays his trust, neglects his duties,
practices deceit, or panders to vice, then the most severe
penalty should be inflicted and his name stricken from
the roll.’
That the lawyer owes a high duty to his profession and to C
his fellow members of the Bar is an obvious truth. His profession
should be his pride, and to preserve its honour pure and unsullied
should be among his chief concerns. “Nothing should be higher in
the estimation of the advocate”, declares Mr Alexander H.
Robbins, “next after those sacred relations of home and country D
than his profession. She should be to him the “fairest of ten
thousand” among the institutions of the earth. He must stand for
her in all places and resent any attack on her honour — as he
would if the same attack were to be made against his own fair
name and reputation. He should enthrone her in the sacred places
of his heart, and to her, he should offer the incense of constant E
devotion. For she is a jealous mistress.
Again, it is to be borne in mind that the Judges are selected
from the ranks of lawyers. The purity of the Bench depends upon
the purity of the Bar.
F
‘The very fact, then, that one of the coordinate
departments of the Government is administered by men
selected only from one profession gives to that profession
a certain pre-eminence which calls for a high standard of
morals as well as intellectual attainments. The integrity of
the judiciary is the safeguard of the nation, but the character G
of the Judges is practically but the character of the lawyers.
Like begets like. A degraded Bar will inevitably produce a
degraded Bench, and just as certainly may we expect to
find the highest excellence in a judiciary drawn from the
ranks of an enlightened, learned and moral Bar.’ H
558 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 27. He ends his article in the following words:
‘No client, corporate or individual, however powerful,
nor any cause civil or political, however important, is entitled
to receive, nor should any lawyer render, any service or advice
involving disloyalty to the law whose ministers we are, or
B disrespect of the judicial office, which we are bound to uphold,
or corruption of any person or persons exercising a public office
or private trust, or deception or betrayal of the public. When
rendering any such improper service or advice, the lawyer
invites and merits stern and just condemnation. Correspondingly,
he advances the honour of his profession and the best interests
C of his client when he renders service or gives advice tending
to impress upon the client and his undertaking exact compliance
with the strictest principles of moral law. He must also observe
and advise his client to observe the statute law, though until a
statute shall have been construed and interpreted by competent
D adjudication, he is free and is entitled to advise as to its validity
and as to what he conscientiously believes to be its just meaning
and extent. But, above all, a lawyer will find his highest honour
in a deserved reputation for fidelity to private trust and to public
duty, as an honest man and as a patriotic and loyal citizen.’
E 28. On examination of the legal principles an important issue
emerges: what should be the end of what the contemnor had started
but has culminated in an impassioned plea of Mr K.K. Venugopal,
learned Senior Advocate supported by the representatives of the
Bar present in court, marking their appearance for the contemnor.
We are inclined to give due consideration to such a plea but are
F unable to persuade ourselves to let the contemnor go scot-free,
without any consequences. We are thus not inclined to proceed
further in the contempt jurisdiction except to caution the contemnor
that this should be the first and the last time of such a misadventure.
But the matter cannot rest only at that.
G ***
30. We are of the view that the privilege of being an Advocate-
on-Record under the rules has clearly been abused by the
contemnor. The conduct was not becoming of an advocate much
less an Advocate-on-Record in the Supreme Court.
H
***
IN RE: PRASHANT BHUSHAN AND ANR. 559
32. The aforesaid rule makes it clear that whether on the complaint A
of any person or otherwise, in case of misconduct or a conduct
unbecoming of an Advocate-on-Record, the court may make an
order removing his name from the register of Advocate-on-Record
permanently, or for a specified period. We are not referring to the
right to practice as an advocate, and the name entered on the rolls
B
of any State Bar Council, which is a necessary requirement, before
a person takes the examination of Advocate-on-Record. The
present case is clearly one where this Court is of the opinion that
the conduct of the contemnor is unbecoming of an Advocate-on-
Record. The prerequisites of the proviso are met by the reason of
the Bench being constituted itself by the Chief Justice, and the C
contemnor being aware of the far more serious consequences,
which could have flowed to him. The learned Senior Counsel
representing the petitioner has thrown him at the mercy of the
court. We have substantively accepted the request but lesser
consequences have been imposed on the contemnor.”
D
45. With respect to test on judicial system and what constitutes
Contempt of Court attributing political colours to the judgments, in Muthu
Krishnan (supra) it was held :-
“82. It has been seen from time to time that various attacks have
been made on the judicial system. It has become very common to E
the members of the Bar to go to the press/media to criticise the
Judges in person and to commit sheer contempt by attributing
political colours to the judgments. It is nothing less than an act of
contempt of gravest form. Whenever any political matter comes
to the Court and is decided, either way, political insinuations are
attributed by unscrupulous persons/advocates. Such acts are F
nothing, but an act of denigrating the judiciary itself and destroys
the faith of the common man which he reposes in the judicial
system. In case of genuine grievance against any Judge, the
appropriate process is to lodge a complaint to the higher authorities
concerned who can take care of the situation and it is impermissible G
to malign the system itself by attributing political motives and by
making false allegations against the judicial system and its
functionaries. Judges who are attacked are not supposed to go to
press or media to ventilate their point of view.
H
560 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 83. Contempt of court is a weapon which has to be used sparingly
as more is power, same requires more responsibility but it does
not mean that the court has fear of taking action and its
repercussions. The hallmark of the court is to provide equal and
even-handed justice and to give an opportunity to each of the
system to ensure that it improves upon. Unfortunately, some
B
advocates feel that they are above the Bar Council due to its
inaction and they are the only champion of the causes. The hunger
for cheap publicity is increasing which is not permitted by the
noble ideals cherished by the great doyens of the Bar, they have
set by their conduct what should be in fact the professional
C etiquettes and ethics which are not capable of being defined in a
narrow compass. The statutory rules prohibit advocates from
advertising and in fact to cater to the press/media, distorted
versions of the court proceedings is sheer misconduct and contempt
of court which has become very common. It is making it more
difficult to render justice in a fair, impartial and fearless manner
D
though the situation is demoralising that something has to be done
by all concerned to revamp the image of the Bar. It is not open to
wash dirty linen in public and enter in accusation/debates, which
tactics are being adopted by unscrupulous elements to influence
the judgments and even to deny justice with ulterior motives. It is
E for the Bar Council and the senior members of the Bar who have
never forgotten their responsibility to rise to the occasion to
maintain the independence of the Bar which is so supreme and is
absolutely necessary for the welfare of this country and the vibrant
democracy.”
F 46. In Tehseen Poonawalla v. Union of India & Another,
(2018) 6 SCC 72, esteemed brother Dr. Justice Chandrachud, who
delivered the judgment, has noted the misuse of public interest litigation
and found that it was a serious matter of concern for the judicial process.
He further found that the Court is flooded with misdirected petitions
purportedly filed in the public interest which, upon due scrutiny, are found
G to promote a personal, business or political agenda. It was further
observed that such petitions pose a grave danger to the credibility of the
judicial process. It was further observed that this has the propensity of
endangering the credibility of other institutions and undermining public
faith in democracy and the rule of law. The Court cautioned that the
H
IN RE: PRASHANT BHUSHAN AND ANR. 561
agency of the Court is being utilized to settle extra judicial scores. This A
Court held thus:-
“96. Public interest litigation has developed as a powerful tool to
espouse the cause of the marginalised and oppressed. Indeed,
that was the foundation on which public interest jurisdiction was
judicially recognised in situations such as those in Bandhua Mukti B
Morcha v. Union of India [Bandhua Mukti Morcha v. Union of
India, (1984) 3 SCC 161 : 1984 SCC (L&S) 389]. Persons who
were unable to seek access to the judicial process by reason of
their poverty, ignorance or illiteracy are faced with a deprivation
of fundamental human rights. Bonded labour and undertrials
(among others) belong to that category. The hallmark of a public C
interest petition is that a citizen may approach the court to ventilate
the grievance of a person or class of persons who are unable to
pursue their rights. Public interest litigation has been entertained
by relaxing the rules of standing. The essential aspect of the
procedure is that the person who moves the court has no personal D
interest in the outcome of the proceedings apart from a general
standing as a citizen before the court. This ensures the objectivity
of those who pursue the grievance before the court. Environmental
jurisprudence has developed around the rubric of public interest
petitions. Environmental concerns affect the present generation
and the future. Principles such as the polluter pays and the public E
trust doctrine have evolved during the adjudication of public interest
petitions. Over time, public interest litigation has become a powerful
instrument to preserve the rule of law and to ensure the
accountability of and transparency within structures of
governance. Public interest litigation is in that sense a valuable F
instrument and jurisdictional tool to promote structural due process.
97. Yet over time, it has been realised that this jurisdiction is capable
of being and has been brazenly misutilised by persons with a
personal agenda. At one end of that spectrum are those cases
where public interest petitions are motivated by a desire to seek G
publicity. At the other end of the spectrum are petitions which
have been instituted at the behest of business or political rivals to
settle scores behind the facade of a public interest litigation. The
true face of the litigant behind the façade is seldom unravelled.
These concerns are indeed reflected in the judgment of this Court
H
562 SUPREME COURT REPORTS [2020] 8 S.C.R.
A in State of Uttaranchal v. Balwant Singh Chaufal [State of
Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC 402 : (2010)
2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] . Underlining these
concerns, this Court held thus: (SCC p. 453, para 143)
“143. Unfortunately, of late, it has been noticed that such an
B important jurisdiction which has been carefully carved out,
created and nurtured with great care and caution by the courts,
is being blatantly abused by filing some petitions with oblique
motives. We think time has come when genuine and bona fide
public interest litigation must be encouraged whereas frivolous
public interest litigation should be discouraged. In our considered
C opinion, we have to protect and preserve this important
jurisdiction in the larger interest of the people of this country
but we must take effective steps to prevent and cure its abuse
on the basis of monetary and non-monetary directions by the
courts.”
D 98. The misuse of public interest litigation is a serious matter of
concern for the judicial process. Both this Court and the High
Courts are flooded with litigations and are burdened by arrears.
Frivolous or motivated petitions, ostensibly invoking the public
interest detract from the time and attention which courts must
E devote to genuine causes. This Court has a long list of pending
cases where the personal liberty of citizens is involved. Those
who await trial or the resolution of appeals against orders of
conviction have a legitimate expectation of early justice. It is a
travesty of justice for the resources of the legal system to be
consumed by an avalanche of misdirected petitions purportedly
F filed in the public interest which, upon due scrutiny, are found to
promote a personal, business or political agenda. This has spawned
an industry of vested interests in litigation. There is a grave danger
that if this state of affairs is allowed to continue, it would seriously
denude the efficacy of the judicial system by detracting from the
G ability of the court to devote its time and resources to cases which
legitimately require attention. Worse still, such petitions pose a
grave danger to the credibility of the judicial process. This has the
propensity of endangering the credibility of other institutions and
undermining public faith in democracy and the rule of law. This
will happen when the agency of the court is utilised to settle extra-
H
IN RE: PRASHANT BHUSHAN AND ANR. 563
judicial scores. Business rivalries have to be resolved in a A
competitive market for goods and services. Political rivalries have
to be resolved in the great hall of democracy when the electorate
votes its representatives in and out of office. Courts resolve
disputes about legal rights and entitlements. Courts protect the
rule of law. There is a danger that the judicial process will be
B
reduced to a charade, if disputes beyond the ken of legal
parameters occupy the judicial space.”
47. Further attack was made on the formation of the Bench, and
recusal was sought of the certain Judges who were part of the Bench,
as they were originally from Bombay High Court. It was observed that
the conduct of the petitioner and the intervenor is scandalizing the process C
of the Court and would prima facie constitute criminal contempt.
However, on a dispassionate view of the matter, the Court did not initiate
proceedings by way of criminal contempt as that would amount to unequal
battle. While considering the submissions made by Shri Prashant Bhushan
seeking recusal and casting aspersions upon the judicial officers, it was D
observed thus:-
“101. … If this were to be the test, it is rather ironical that the
petitioners had instituted proceedings before the Bombay High
Court each of whose Judges were expected to be faced with the
same situation. We informed Mr Bhushan that a decision as to E
whether a Judge should hear a case is a matter of conscience for
the Judge. There is absolutely no ground or basis to recuse. Judges
of the High Court hear intra-court appeals against orders of their
own colleagues. References are made to larger Benches when
there are differences of view. Judges of the Supreme Court hear
appeals arising from judgments rendered by Judges of the High F
Courts in which they served, either as Judges or on appointments
as Chief Justices. Maintaining institutional civilities between or
towards Judges is distinct from the fiercely independent role of
the Judge as adjudicator. We emphatically clarify that on the well-
settled parameters which hold the field, there is no reason for any G
member of the present Bench to recuse from the hearing. While
it is simple for a Judge faced with these kinds of wanton attacks
to withdraw from a case, doing so would amount to an abdication
of duty. There are higher values which guide our conduct. Though
Mr Bhushan ultimately made it clear that he is not filing an
H
564 SUPREME COURT REPORTS [2020] 8 S.C.R.
A application for recusal — and none has been filed — we have
recorded what transpired to express our sense of anguish at the
manner in which these proceedings have been conducted. Serious
attacks have been made on the credibility of two Judges of the
Bombay High Court. The conduct of the petitioners and the
intervenors scandalises the process of the court and prima facie
B
constitutes criminal contempt. However, on a dispassionate view
of the matter, we have chosen not to initiate proceedings by way
of criminal contempt if only not to give an impression that the
litigants and the lawyers appearing for them have been subjected
to an unequal battle with the authority of law. We rest in the hope
C that the Bar of the nation is resilient to withstand such attempts
on the judiciary. The judiciary must continue to perform its duty
even if it is not to be palatable to some. The strength of the judicial
process lies not in the fear of a coercive law of contempt. The
credibility of the judicial process is based on its moral authority. It
is with that firm belief that we have not invoked the jurisdiction in
D
contempt.”
48. In Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC
156, the authority of the Chief Justice to constitute the Benches,
was questioned. Again, in reply, averments have been made with
respect to the constitution of the Benches by the Chief Justice.
E The question was dealt with in Kamini Jaiswal (supra), in which
Shri Prashant Bhushan himself appeared. Reliance was placed
on D.C. Saxena v. Chief Justice of India, (1996) 5 SCC 216,in
which it was observed thus:-
“81. It is the duty of the Chief Justice of a court to assign
F judicial work to his brother Judges. It was, therefore, the duty of
the respondent to assign the second writ petition to a Bench to
hear it. By doing so he did not, as is alleged, become a Judge in his
own cause. It is contempt to imply, as the alleged contemnor does,
that the respondent would assign it to a Bench which would not
G pass an order adverse to him. It is also contempt to imply that
Judges would be so amenable. To plead that the Bench that heard
the second writ petition could not have heard it and, therefore,
could not have dismissed it and that it is deemed to be still pending
is to add to the contempt. These allegations are also aimed at
bringing the administration of justice into disrepute.”
H
IN RE: PRASHANT BHUSHAN AND ANR. 565
49. It was also observed in Kamini Jaiswal (supra) thus:- A
“30. Though it is true, that none of us is above law; no person in
the higher echelons is above the law but, at the same time, it is the
duty of both the Bar and the Bench, to protect the dignity of the
entire judicial system. We find that filing of such petitions and the
zest, with which it is pursued, has brought the entire system in the B
last few days to unrest. An effort was made to create ripples in
this Court; serious and unwanted shadow of doubt has been
created for no good reason whatsoever by way of filing the petition
which was wholly scandalous and ought not to have been filed in
such a method and manner. It is against the settled proposition of
law. Ultimately after arguing at length, at the end, it was submitted C
by the petitioner and her counsel that they were not aiming at any
individual. If that was not so, unfounded allegations ought not to
have been made against the system and that too against the
Hon’ble Chief Justice of this country. In case majesty of our judicial
system has to survive, such kind of petitions should not have been D
preferred that too against the settled proposition of law laid down
by this Court in the aforesaid decisions of this Court in D.C.
Saxena [D.C. Saxena v. Chief Justice of India, (1996) 5 SCC 216]
and K. Veeraswami [K. Veeraswami v. Union of India, (1991) 3
SCC 655 : 1991 SCC (Cri) 734].”
E
50. In view of the settled legal position, as stated hereinabove, we
are of the considered opinion that the defence taken in the affidavit
cannot be said to be either bona fide or in the public interest. Both the
tweets coupled with averments in the reply affidavit are capable of
shaking the confidence of the public in the institution as a whole. The
second tweet is capable of creating an impression that the entire Supreme F
Court in the last six years has played a vital role in the destruction of
democracy.
51. As already discussed hereinabove, one of the attending
circumstances which is required to be taken into consideration is the
person who makes the statement. It is not expected of a person who is G
a part of the system of administration of justice and who owes a duty to
the said system, to make such tweets which are capable of shaking the
confidence of general public and further making wild allegations in the
affidavit thereby further attempting to malign the said institution. Such
an act by responsible person who is part of this system cannot be ignored H
or overlooked.
566 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 52. We find no justification to make such a remark/tweet,
particularly when it is made by a lawyer with 35 years standing like Shri
Prashant Bhushan, who is an officer of the Court and advocates enjoy
equal dignity in the system. In spite of learned Attorney General’s
insistence that the averments made in the defence should be withdrawn
and regret should be submitted, Dr. Dhavan, learned senior counsel,
B
stated that the contemnor is not ready to withdraw the defence taken in
the reply. That further makes it clear that while insisting with the
unjustifiable defence and insistence to go with it makes the entire episode
the one which cannot be ignored.
53. The tweet has been made by the lawyer who has the standing
C of 35 years and who is involved in several public interest litigations.
However, merely because a lawyer is involved in the filing of the public
interest litigation for the public good it does not arm him to harm the very
system of which he is a part. Though expectation from an ordinary citizen
may be different, the duties and expectations that are expected from a
D lawyer of long standing are on higher side. An advocate cannot forget
his ethical duty and responsibility and cannot denigrate the very system
of which he/she is an integral part. Fair criticism is not to be silenced, but
an advocate has to remind himself/herself, where he/she crosses the
zone of propriety, and the Court cannot continuously ignore it, and the
system cannot be made to suffer. When the criticism turns into malicious
E and scandalous allegations thereby tending to undermine the confidence
of the public and the institution as a whole, such a criticism cannot be
ignored.
In Ref: Statement in Press/Media
F 54. Dr. Dhavan, learned senior counsel, next argued that we should
consider the various statements made by some of the retired Judges,
journalists, and others. We are not referring to the names as we do not
deem it appropriate to refer those names. The argument is founded on
the fact that the Court should be influenced by the opinion expressed in
the newspapers and other media, when the Court is hearing a matter.
G There are two facets of the argument. Firstly, whether the Court should
be moved by the statement published in the newspaper and secondly,
whether, in a sub judice matters, such statements are permissible to be
made. We put a question to ourselves, as to whether the Court can be
guided by such opinions expressed on the public platform and as to whether
H the Court while exercising its judicial duties render its decision on the
IN RE: PRASHANT BHUSHAN AND ANR. 567
basis of the trial made by the media and public opinion. Answer to both A
the questions are found firmly in the negative. The Court cannot abdicate
its duty and has to be uninfluenced by the statements published in various
articles published in the media and opinions expressed therein. It has to
decide the case uninfluenced by such opinions.
55. C.J. Miller in Contempt of Court, Third Edition, dealt with the B
similar issue referring to the decision in Attorney-General v. Times
Newspaper Ltd., (1973) 3 All ER 54, discussed the aspect thus:-
“7.106 This view was followed in the Australian case of Ex p.
Attorney-General: Re Truth and Sportsman Ltd. [1958 61 SR
(NSW) 484] Here a newspaper described a driver who had been C
convicted after his car had knocked over and killed two young
children as a ‘monster’, adding that ‘it was one of the most
inhumane road killings on record in New South Wales’. The
Supreme Court of New South Wales justified the imposition of a
fine for contempt on the ground, inter alia, that:
D
If comment and criticism of the nature dealt with in these
proceedings were permitted while an appeal is pending,
prejudice would undoubtedly be likely to be created, and in any
event the court could be seriously embarrassed
The decision in the Delbert-Evans case was cited with E
evident approval in Attorney-General v. Crisp and ‘Truth’ (NZ)
Ltd. [1952 NZLR 84 (NZ Sup. Ct.). The defendants had described
one Horry as ‘an unspeakable monster’ and a ‘suave black-hearted
fiend’ when the time for appealing against a conviction for murder
had not expired. In holding that a contempt had been committed,
Fair J said that such comment tended ‘seriously to embarrass the F
fair and impartial administration of justice’.”
56. It was further observed that there is a substantial risk of serious
prejudice through an effect upon the mind of an appellate judge by such
publication. It was also emphasized that an act of making comments
which are intended or even likely to influence a judge necessarily amount G
to a contempt.
57. Dr. Dhavan, learned senior counsel, has submitted that this
Court will be criticized, in case it inflicts any punishment upon Shri Prashant
Bhushan. We are unmoved by this submission. While exercising our
judicial functions, we cannot take into consideration whether we will be H
568 SUPREME COURT REPORTS [2020] 8 S.C.R.
A praised or criticized for the judgment which we render. We are required
to decide the cases on the basis of the law as it correctly stands, in our
perception and understanding. We are not expected to decide the matter
on the basis as to whether there will be criticism of the judgment or not.
We have to be always ready for its fair criticism.
B 58. C.J. Miller, in Contempt of Court, Third Edition, has
referred Lord Parker CJ thus:-
“7.118 An alternative way of justifying the imposition of liability
in such cases as Attorney-General v. Tonks [1939 NZLR 533] is
to categorize the publication as an attempt to ‘dictate’ a decision
C to an appellate court. As such, it may be viewed as a contempt on
the basis of an argument that a person who acts with the intention
of interfering with the administration of justice will commit the
offence, even though there is absolutely no likelihood of his
achieving this objective. The point is discussed in more detail
elsewhere. Here, it is sufficient to note that Lord Parker CJ agreed
D in Duffy, ex p. Nash that a contempt may be committed where
‘the article in question formed part of a deliberate campaign to
influence the decision of the appellate tribunal’. [1960 2 QB 188]
Hence, there is common law authority suggesting that such a
campaign is unlawful in this country.”
E 59. This Court has also considered the effect on the cases by
pressure created by the media in R.K. Anand v. Registrar, Delhi
High Court (2009) 8 SCC 106 and Reliance Petrochemicals Ltd.
v. Proprietors of Indian Express News-Papers Bombay Pvt. Ltd.,
and others, (1988) 4 SCC 592.
F 60. In the case of R.K. Anand (supra), the Court considered the
concept of trial by media in a case which was sub judice. While
considering the same, it was held thus:-
“Reporting of pending trial
289. We are also unable to agree with the submission made by
G
Mr P.P. Rao that the TV channel should have carried out the
stings only after obtaining the permission of the trial court or the
Chief Justice of the Delhi High Court and should have submitted
the sting materials to the court before its telecast. Such a course
would not be an exercise in journalism but in that case the media
H would be acting as some sort of special vigilance agency for the
IN RE: PRASHANT BHUSHAN AND ANR. 569
court. On little consideration the idea appears to be quite repugnant A
both from the points of view of the court and the media.
290. It would be a sad day for the court to employ the media for
setting its own house in order; and media too would certainly not
relish the role of being the snoopers for the court. Moreover, to
insist that a report concerning a pending trial may be published or B
a sting operation concerning a trial may be done only subject to
the prior consent and permission of the court would tantamount to
pre-censorship of reporting of court proceedings. And this would
be plainly an infraction of the media’s right of freedom of speech
and expression guaranteed under Article 19(1) of the Constitution.
C
291. This is, however, not to say that media is free to publish any
kind of report concerning a sub judice matter or to do a sting on
some matter concerning a pending trial in any manner they please.
The legal parameter within which a report or comment on a sub
judice matter can be made is well defined and any action in breach
of the legal bounds would invite consequences. Compared to D
normal reporting, a sting operation is an incalculably more risky
and dangerous thing to do. A sting is based on deception and,
therefore, it would attract the legal restrictions with far greater
stringency and any infraction would invite more severe
punishment.” E
61. In State of Maharashtra v. Rajendra Jawanmal Gandhi,
(1997) 8 SCC 386, the concept of trial by press, electronic media and
public agitation was considered and the Court held thus:-
“37. We agree with the High Court that a great harm had been
caused to the girl by unnecessary publicity and taking out of morcha F
by the public. Even the case had to be transferred from Kolhapur
to Satara under the orders of this Court. There is procedure
established by law governing the conduct of trial of a person
accused of an offence. A trial by press, electronic media or public
agitation is the very antithesis of rule of law. It can well lead to G
miscarriage of justice. …”
62. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498, question of public opinion in capital
sentencing was considered. It was observed that perception of public is
extraneous to conviction as also sentencing. Relevant paragraphs are as
H
under:-
570 SUPREME COURT REPORTS [2020] 8 S.C.R.
A “2(F) Public opinion in capital sentencing
80. It is also to be pointed out that public opinion is difficult to fit in
the rarest of rare matrix. People’s perception of crime is neither
an objective circumstance relating to crime nor to the criminal.
Perception of public is extraneous to conviction as also sentencing,
B at least in capital sentencing according to the mandate of Bachan
Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] .
xxx xxx
87. Public opinion may also run counter to the rule of law and
constitutionalism. Bhagalpur Blinding case [Ed.: The reference
C seems to be to Khatri (II) v. State of Bihar, (1981) 1 SCC 627 :
1981 SCC (Cri) 228] or the recent spate of attacks on right to trial
of the accused in Bombay Bomb Blast case [Ed.: The reference
seems to be to Sanjay Dutt v. State (II), (1994) 5 SCC 410 : 1994
SCC (Cri) 1433] are recent examples. We are also not oblivious
D to the danger of capital sentencing becoming a spectacle in media.
If media trial is a possibility, sentencing by media cannot be ruled
out.
88. Andrew Ashworth, a leading academic in the field of
sentencing, who has been at the centre of sentencing reforms in
E the UK, educates us of the problems in factoring in public opinion
in the sentencing. He (with Michael Hough), observes in an article,
“Sentencing and the Climate of Opinion” (1996 Crim. L.Rev.):
“The views of sentencing held by people outside the criminal
justice system—‘the general public’—will always be important
F even if they should not be determinative in court. Unfortunately,
the concept of public opinion in relation to sentencing practices
is often employed in a superficial or simplistic way. In this
short article we have identified two major difficulties with the
use of the concept. First, members of the public have insufficient
knowledge of actual sentencing practices. Second, there is a
G significant but much neglected distinction between people’s
sweeping impressions of sentencing and their views in relation
to particular cases of which they know the facts. When it is
proclaimed that the public think the courts are too lenient, both
these difficulties are usually suppressed.
H
IN RE: PRASHANT BHUSHAN AND ANR. 571
To construct sentencing policy on this flawed and partial notion A
of public opinion is irresponsible. Certainly, the argument is
hard to resist that public confidence in the law must be
maintained. It is also hard to resist the proposition that public
confidence in sentencing is low and probably falling. However,
since the causes of this lie not in sentencing practice but in
B
misinformation and misunderstanding, and (arguably) in factors
only distantly related to criminal justice, ratcheting up the
sentencing tariff is hardly a rational way of regaining public
confidence.
This is not to deny that there is political capital to be made, at
least in the short term, by espousing sentencing policies which C
have the trappings of tough, decisive action. However, the
underlying source of public cynicism will not have been
addressed; and once politicians embark on this route, they may
be committing themselves long term to a treadmill of toughness,
‘decisiveness’, and high public expenditure. The political costs D
of withdrawing from tough policies, once embarked on, may
be too high for politicians of any hue to contemplate. The United
States serves as an example.
If the source of falling public confidence in sentencing lies in
lack of knowledge and understanding, the obvious corrective E
policy is to explain and to educate, rather than to adapt
sentencing policy to fit a flawed conception of public opinion.
But who should be the target of such explanation and education?
We have serious doubts whether attempts to reach the ordinary
citizen directly will have any impact at all. On the other hand,
we think it feasible, within limits, to educate those who shape F
public opinion. Newspaper and television journalists, for
example, responded well to the initiatives in the 1980s intended
to curb the reporting of crime in ways that needlessly fuelled
fear of crime. A similar initiative should now be mounted in
relation to sentencing.”” G
63. In Reliance Petrochemicals Ltd. (supra), it was observed
that process of due course of administration of justice must remain
unimpaired. Public interest demands that there should be no interference
with the judicial process, and the effect of the judicial decision should
not be pre-empted or circumvented by public agitation or publications. H
572 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 64. The Judges have to be impartial towards the crime of voice,
as observed in Dharmkosh-43 (Narad 36-4-5) thus:-
B
65. Meaning thereby, Judges have to be well versed in the laws
and impartial towards friends and foes. It emphasizes that the Judges
C should be impartial towards friends and foes. In our opinion, the judicial
decision cannot be influenced by the opinions expressed in the media.
66. The lawyers and litigants going to press or media in a sub
judice matter is another question that is at the forein this matter. While
hearing the matter, Shri Prashant Bhushan talked to the press and media.
D The statement which was made by Shri Prashant Bhushan, pursuant to
the order dated 20.08.2020, was also published well in advance in extenso,
word to word, in the newspaper and media. In a sub judice matter,
releasing such statement to the press in advance is an act of impropriety
and has the effect of interfering with the judicial process and the fair
decision making and is clearly an attempt to coerce the decision of the
E Court by the influence of newspaper and media, which cannot be said to
be conducive for the fair administration of justice and would further
tantamount to undue interference in the independent judicial making
process which is the very foundation of institution of administration of
justice. If such kind of action is resorted to in a sub judice matter, that
F too by an advocate who is facing a criminal contempt, it virtually
tantamount to using a forum or platform which is not supposed to be
used ethically and legally. More so, in a serious case of criminal contempt
and particularly after the conviction has been recorded by this Court, it
indicates that the tolerance of the Court is being tested for no good
reasons by resorting to unscrupulous methods.
G
67. Dr. Dhavan, learned senior counsel, fairly stated that in a sub
judice matter, it is not open to the lawyer or litigant to go to press or
media and make the statement. However, it appears that this good sense
and counsel by a senior lawyer of long standing has not prevailed upon
the contemnor. Dr. Dhavan, also stated that statement should not have
H been released by Shri Prashant Bhushan to press or media. It was
IN RE: PRASHANT BHUSHAN AND ANR. 573
impermissible for him to do so. We put on record our appreciation for A
the fairness of Dr. Dhavan, learned senior counsel. He has asked us to
lay down guidelines for future guidance to the members of the Bar and
the litigants on such aspects.
In Ref: Factors for Sentencing
68. Dr. Dhavan, learned senior counsel, submitted that relevant B
factors required to be taken into consideration for sentencing are the
offender, the offence and statutory or other defences. He has also referred
to the guidelines issued in the case in Re: S. Mulgaokar (supra).
69. With respect to the offender, as stated by Shri Prashant
Bhushan in his affidavit that he is a lawyer having of 35 years of standing C
and has also pursued various public interest litigations. No doubt that this
would be a relevant factor while balancing the decision to be taken by
the Court. However, at the same time, the uncalled statements made in
the affidavit for pursuing truth as a defence can also not be ignored.
Since, in 2009 contempt petition various questions have been framed by D
this Court which will have to be answered, the pendency of the said
contempt petition cannot be considered to be a factor in reflecting on the
question of sentence in the present matter. Even the present Attorney
General had filed a contempt case i.e. Contempt Petition (Crl) No.1/
2019 (titled The Attorney General of India v. Prashant Bhushan), which
is pending before this Court. E
70. Dr. Dhavan, learned senior counsel, argued that offence is
also a factor that is to be taken into consideration while imposing the
punishment. He argued that offence must be clear without ambiguity,
and the potential offender must understand where and when he is guilty
of the offence. He submitted that scandalising the Court is notoriously F
vague, as observed in Shreya Singhal (supra) and that the Court has to
be careful in exercising the jurisdiction, as held in Baradakanta Mishra
(supra).
71. In respect to the submission made by Dr. Dhavan, learned
senior counsel, with regard to the inconsistency between the judgments G
of this Court in E.M. Sankaran Namboodripad (supra) and P.N. Duda
(supra) is concerned, we are not concerned with the final outcome of
the decision in these two cases. However, it could be seen that the legal
position enunciated in both the judgments is one and the same. May be
in one case by applying the same law the court found the statements
H
574 SUPREME COURT REPORTS [2020] 8 S.C.R.
A made were contemptuous and in other case the Court found that the
statement made was not contemptuous. With regard to the reference
made by Dr. Dhavan, learned senior counsel, regarding the judgment in
Re: Times of India and Hindu, (2013) Cr.L.J. 932, to which one of us
(Mishra, J.) was a party is concerned, the reliance on the said judgment,
in our view, is misplaced. Firstly, applying the test as to who is the person
B
who makes the statement, it could be seen that in the said case the
statement was made by a politician, however, in the present case, the
statement is made by a lawyer who has a standing of more than 35
years. Secondly, in the said case the statement was not made specifically
against anyone but was a general statement, in the present case the
C statement is made against the past four Chief Justices and the Judges,
who have occupied the office of this Court for last six years.
72. Dr. Dhavan, learned senior counsel, also argued that contempt
jurisdiction is vague and colonial. For this, he has relied upon Justice
Wilmot’s judgment in R. v. Almon, (1965) Wilm 243, Mcleod v. St.
D Aubyn, (1899) AC 549 (PC), R. v. Gary, (1900) 2 QB 36 DC, R.
v. Colsely, 9 May 1931 DC, Dhoorika v. Director of Public
Prosecutions (Commonwealth Lawyers’ Association
Intervening), (2015) AC 875. He urged that in the last century, this
jurisdiction has been used only for 31 years and never after that in England
since 1931.
E
73. He has also referred R. v. Blackburn, (1968) 1 ALL ER
763, wherein Lord Denning refused to convict or sentence for contempt.
He also referred that in the Spycatcher affair, the Daily Mirror had a
banner heading stating in bold “YOU FOOLS” and put the picture of
the Law Lords upside down, and no contempt was initiated. Further, in
F 2019, in the Parliament suspension case, the English Supreme Court
Judges were called ‘enemies of democracy,’ but no action was taken.
74. The submissions that are sought to be made in effect amount
to reviewing the view taken by us in the convicting judgment. We need
not again consider the submissions made by Dr. Dhavan, learned senior
G counsel, inasmuch as all his submissions have been elaborately considered
in the convicting judgment. Taking into consideration the view taken by
us in the convicting judgment we cannot accede to the request of Dr.
Dhavan, learned senior counsel that the decision dated 14.08.2020 should
be withdrawn or recalled.
H
IN RE: PRASHANT BHUSHAN AND ANR. 575
75. We find no force in the submission raised to recall the judgment, A
suo motu otherwise. We have exercised the jurisdiction with full
circumspection, care, and precautions. We find no merits in the submission.
While sentencing, we have to act with objectivity in relation to the person
and the actual effect, as held in Murray & Co. v. Ashok Kumar
Newatia and Another, (2000) 2 SCC 367.
B
76. Dr. Dhavan, learned senior counsel, also argued that there is
no conflict between the constitutional jurisdiction under Articles 129 and
215 of the Constitution and the provisions of the Contempt of Courts
Act, 1971. For this purpose, he has relied upon Pallav Sheth (supra),
in which it was observed:-
C
“30. There can be no doubt that both this Court and High Courts
are courts of record and the Constitution has given them the powers
to punish for contempt. The decisions of this Court clearly show
that this power cannot be abrogated or stultified. But if the power
under Article 129 and Article 215 is absolute, can there by any
legislation indicating the manner and to the extent that the power D
can be exercised? If there is any provision of the law which stultifies
or abrogates the power under Article 129 and/or Article 215, there
can be little doubt that such law would not be regarded as having
been validly enacted. It, however, appears to us that providing for
the quantum of punishment or what may or may not be regarded E
as acts of contempt or even providing for a period of limitation for
initiating proceedings for contempt cannot be taken to be a
provision which abrogates or stultifies the contempt jurisdiction
under Article 129 or Article 215 of the Constitution.”
77. The case of Maheshwari Peri & others v. High Court of F
Judicature at Allahabad, (2016) 14 SCC 251, was also referred.
The relevant paragraph is as under:-
“10. ….. Be it an action initiated for contempt under Article 129
of the Constitution of India by the Supreme Court or under Article
215 of the Constitution of India by the High Court, it is now settled G
law that the prosecution procedure should be in consonance with
the Act, as held by this Court in Pallav Seth.”
78. We find that this question has been dealt with in the convicting
judgment and what is the procedure under Articles 129 and 215 of the
Constitution has been considered InRe: Vijay Kurle and Ors., 2020
H
576 SUPREME COURT REPORTS [2020] 8 S.C.R.
A SCC Online SC 407. We will not repeat them again as they are referred
to in the convicting judgment.
79. Dr. Dhavan, learned senior counsel, urged that a copy of the
complaint/petition filed by Shri Mahek Maheshwari, was not made
available to the contemnor. He has submitted that said Shri Mahek
B Maheshwari was associated for some time with some political party. He
further submitted that as such the person who filed a petition was a
relevant question required to be considered by this Court. He has also
relied upon Rule 6(2) of the Rules to Regulate Proceedings for Contempt
of the Supreme Court, 1975 read with Article 145 of the Constitution,
which provided that a copy of the complaint must be supplied to the
C contemnor.
80. No doubt that though initially the said Mr. Mahek Maheshwari
had filed a petition in this Court which was placed on the administrative
side of this Court, this Court had decided to initiate suo motu proceedings.
Only that part of the petition i.e. the first tweet made by the contemnor
D was one of the basis for taking action against the contemnor. The relevant
tweet has specifically been mentioned in our order dated 22.07.2020.
No other part of the petition was taken into consideration for proceeding
against the contemnor. Insofar as the second tweet is concerned, which
was on the basis of the report published in the Time of India dated
E 22.07.2020, we had decided to take suo motu cognizance of the same.
Thus, it will not be of any relevance as to whether a copy of the petition
filed by Shri Mahek Maheshwari was supplied or not. The suo motu
cognizance was taken only on the basis of the said two tweets, which
were specifically quoted in our order dated 22.07.2020. As held in catena
of cases, the only requirement is that the Court must follow principles of
F natural justice. The Court specifically made aware the contemnor about
the basis on which the Court took suo motu cognizance. Not only that
but the contemnor understood the basis on which the Court was
proceedings, as is evident from the bulky affidavit in reply filed by him.
Contention in this respect, in our view is without substance.
G 81. Argument raised by Dr. Dhavan that Free Speech is part of
Article 19(1)(a) of the Constitution cannot be disputed. However, we
are not convinced that while exercising power under Article 129 of the
Constitution, we are interfering with the rights under Article 19(1)(a) of
the Constitution. Supreme Court being a court of record can punish for
H contempt. He also argued about the Freedom of Press, which is beyond
IN RE: PRASHANT BHUSHAN AND ANR. 577
doubt an important aspect of democracy. Free Speech is essential to A
democracy can also not be disputed, but it cannot denigrate one of the
institutions of the democracy. As observed in Maneka Gandhi v. Union
of India and Another, (1978) 1 SCC 248, democracy is based on free
debate and open discussion, however, cannot go to the extent of the
scurrilous attack and shaking the faith of the general public in such
B
institution. Freedom of speech and expression includes the right to impart
and receive information, which includes freedom to hold an opinion as
was held in Secretary, Ministry of Information and Broadcasting,
Government of India & Ors. v. Cricket Association of Bengal &
Ors., (1995) 2 SCC 161. No doubt, one is free to form an opinion and
make fair criticism but if such an opinion is scandalous and malicious, C
the public expression of the same would also be at the risk of the contempt
jurisdiction. No doubt that the contention raised by Dr. Dhavan, learned
senior counsel, that free speech, as envisaged under Article 19(1)(a) of
the Constitution is a fundamental right. However, it cannot be forgotten
that rights under Article 19(1) of the Constitution are subject to reasonable
D
restrictions under Article 19(2) of the Constitution and rights of others
cannot be infringed in the process. The same have to be balanced. While
exercising the powers under Article 129 of the Constitution, the Court
will have to strike a balance between the right under Article 19(1)(a)
and the restrictions under Article 19(2) of the Constitution. No doubt
that, as urged by Dr. Dhavan, freedom of press is also an important E
aspect in a democracy. We cannot control the thinking process and words
operating in the mind of one individual, but when it comes to expression,
it has to be within the constitutional limits. Lawyers’ noble profession
will lose all its significance and charm and dignity if the lawyers are
permitted to make any malicious, scandalous and scurrilous allegations
F
against the institution of which they are part. The lawyers are supposed
to be fearlessly independent and robust but at the same time respectful
to the institution.
82. Dr. Dhavan, learned senior counsel, also argued that as per
Section 3(22) of the General Clauses Act, things shall be considered to
be done in good faith, in fact, if done honestly, whether it is done G
negligently or not. Dr. Dhavan, submitted that if defence of good faith,
as provided in Section 3(22) of the General Clauses Act is taken into
consideration, it will have to be held that the act done by the contemnor
was done in good faith if it was done honestly, may be done negligently.
The perusal of the comments can neither be said to be done honestly or H
578 SUPREME COURT REPORTS [2020] 8 S.C.R.
A in good faith. Reliance has been placed on Reynolds v. Times
Newspapers Ltd. and Others, (1999)4 All ER 609, it has been observed
that the true test is whether the opinion, however exaggerated, obstinate
or prejudiced, was honestly held by the person expressing it. It cannot
be said that a person who is the lawyer having 35 years standing, who
has made malicious and scandalous comments in the tweets and amplified
B
them by the averments made in the affidavit in reply which have the
effect of denigrating the very institution to which he belongs, can be
made honestly or in good faith.
83. Dr. Dhavan, learned senior counsel, submitted that applying
the doctrine of proportionality the balance will have to tilt in favour of
C the fundamental rights as against restrictions. He argued that
reasonableness means substantive and procedural reasonableness and
imports proportionality, and he has placed reliance on State of Madras
& Ors. v. V.G. Row, (1952) SCR 597, Chintaman Rao & Ors. v.
State of Madhya Pradesh, (1950) SCR 759, Papnasam Labour Union
D v. Madura Coats Ltd. and Ors., (1995) 1 SCC 501, State of Andhra
Pradesh & Ors. v. McDowell and Co. & Ors., (1996) 3 SCC 709,
Union of India (UOI) & Ors. v. G. Ganayutham (Dead) by Lrs.,
(1997) 7 SCC 463, Teri Oat Estates (P) Ltd. v. U.T. Chandigarh &
Ors., (2004) 2 SCC 130, Om Kumar & Ors. v. Union of India (UOI),
(2001) 2 SCC 386, Anuj Garg & Ors. v. Hotel Association of India
E & Ors., (2008) 3 SCC 1 and Chairman, All India Railway Rec.
Board & Ors. v. K. Shyam Kumar & Ors., (2010) 6 SCC 614. Thus,
he has submitted that the conviction be recalled, and no sentence be
imposed. We have weighed the pros and cons, rights, and limitations and
thereafter rendered a considered decision regarding conviction, and as
F discussed in this order, on consideration of proportionality we find no
room to entertain this submission. The same is repelled. Shri Dhavan,
learned senior counsel, also relied upon the following statement in Andre
Paul Terence Ambard v. The Attorney General of Trinidad and
Tobago, (1936) All ER 704, the following passage has been relied upon:-
G “… no wrong is committed by any member of the public who
exercises the ordinary right of criticizing in good faith in private or
public the public act done in the seat of justice. The path of
criticism is a public way: the wrongheaded are permitted to err
therein: provided that members of the public abstain from imputing
improper motives to those taking part in the administration of
H
IN RE: PRASHANT BHUSHAN AND ANR. 579
justice, and are genuinely exercising a right of criticism and not A
acting in malice or attempting to impair the administration of justice,
they are immune. Justice is not a cloistered virtue: she must be
allowed to suffer the scrutiny and respectful even though
outspoken comments of ordinary men.”
(Emphasis supplied) B
84. There can be no doubt about the principle that any member of
the public has a right to criticize in good faith in private or public, the
public act done in the seat of justice. However, the members of the
public are required to abstain from imputing improper motives to those
taking part in the administration of justice. Right to fair criticism is C
contrasted against acting in malice or attempting to bring down the
reputation of the institution of administration of justice. We find that
even after recording the judgment of conviction, no remorse has been
expressed by the contemnor, nor apology has been submitted. It was
argued that apology is being coerced from the contemnor. In the
supplementary statement dated 24.08.2020, Shri Prashant Bhushan has D
stated that “At the hearing the court asked me to take 2-3 days to
reconsider the statement I made in the court.” However, the order
specifically states, “We have given time to the contemnor to submit
unconditional apology, if he so desires.” We find that by now it is a
settled position of law that the Court speaks through its judgments and E
orders. Virtual exchange during the course of the proceedings is not
what is the order of the Court but it could be a tentative expression of
that exchange during the course of hearing. However, ultimately what is
final is the order of the Court, which has the seal of it. It would have
been better if the aforesaid part was not mentioned in the supplementary
statement, but we cannot stop anybody from making any statement, but F
we consider it not to be a proper statement as to what should have been
the words in the order of the Court. We have not coerced the contemnor
to submit the apology and have clearly mentioned that time was given to
submit unconditional apology, “if he so desires”. It was his decision to
submit it or not. However, he has chosen to submit a supplementary G
statement. Thus, the submission raised by Dr. Dhavan, learned senior
counsel, as to coercion is without substance. The desire of learned
Attorney General that he/contemnor should withdraw the allegation and
express regret has also gone unheeded.
H
580 SUPREME COURT REPORTS [2020] 8 S.C.R.
A 85. Dr. Dhavan, has also referred to the observation of Krishna
Iyer, J., in Re: S. Mulgaokar (supra). We have considered the same in
the convicting judgment and followed the principle laid down therein.
No doubt that while exercising the right of freedom of speech the fair
criticism of the system is welcome and the Judges cannot be hyper
sensitive even when distortions and criticism overstep the limit. However,
B
the same cannot be stretched to permit to make malicious and scandalous
statement. The Court has to act only in the case where the attack is
beyond a permissible limit, the strong arm of the law strikes a blow on
him who challenges the supremacy of the rule of law by fouling its source
and stream.
C 86. We have applied the aforesaid guidelines and standards.
87. Learned Attorney General submitted that the Court should
exhibit magnanimity. Dr. Dhavan, learned senior counsel, invoked the
statesmanship from this Court. Learned Attorney General stated that if
there is an expression of regret and if the affidavit is withdrawn, perhaps
D a quietus can be given to the proceeding. However, the contemnor
declined to do so. Learned Attorney General also submitted that in
Arundhati Roy’s case, it was held that “our shoulders are broad enough
to shrug off comments against it.” No doubt about it, our approach has
to be like one stated by the learned Attorney General. In spite of learned
E Attorney General appealing that it was not too late for the contemnor to
express regret as he did in the other case regarding contempt filed by
learned Attorney General and one more chance be given, but that was
virtually declined flatly by Dr. Dhavan, learned senior counsel, in the
presence of the contemnor. It is apparent that in both the statements
made by the contemnor, he is sticking to his ground, and he is not at all
F realizing that any wrong was done by him to the institution. At the same
time, he has expressed the faith in the institution and he has submitted
that an apology cannot be a mere incantation and an apology has to be
as the Court itself put be sincerely made. He has further stated that he
made the statement bona fide and with truthful details which had not
G been dealt with by the Court. He is insistent and has no remorse about
what he has stated in the defence. He has not gone by the advice of the
learned Attorney General to withdraw the same and to take if off the
record. Shri Prashant Bhushan being a person well versed with law
ought to have given due weightage to the advice rendered by the learned
Attorney General who has pleaded not to sentence him, at the same
H time maintained that the statements made in the affidavit in reply could
IN RE: PRASHANT BHUSHAN AND ANR. 581
not be taken into consideration for considering the case of Mr. Prashant A
Bhushan of truth as a defence. When senior-most functionary in the
legal profession of the stature of the learned Attorney General was giving
an advice to express regret and withdraw the wild allegations a lawyer
of such a long standing was expected to give due respect to it. Even our
request made to him has gone in vain. Thus, we feel that the simple
B
issuance of warning is not going to suffice in the instant case.
88. It was argued by Dr. Dhavan, learned senior counsel, that in
case the contemnor is sent to the imprisonment, he will attain martyrdom,
and he also should not be debarred from the practice. He further stated
that the Court could not pass an order debarring the contemnor from
practicing unless a prior notice was issued to him and an opportunity of C
hearing was given in that regard.
89. Pursuant to the conviction in a criminal case, the Bar Council
of India can suspend the enrolment, if it so desires. It is also open to this
Court to debar from practicing in a Court, as held in Supreme Court Bar
Association (supra). We are not afraid of sentencing the contemnor D
either with imprisonment or from debarring him from the practice. His
conduct reflects adamance and ego, which has no place to exist in the
system of administration of justice and in noble profession, and no remorse
is shown for the harm done to the institution to which he belongs. At the
same time, we cannot retaliate merely because the contemnor has made E
a statement that he is neither invoking the magnanimity or the mercy of
this Court and he is ready to submit to the penalty that can be lawfully be
inflicted upon him for what the Court has determined to be an offence.
He has even invoked the Father of the Nation, Mahatma Gandhi’s
statement, which was made by Mahatma Gandhi at the conclusion of
the trial against him. F
90. The Court, from the very beginning, was desirous of giving
quietus to this matter. Directly or indirectly, the contemnor was persuaded
to end this matter by tendering an apology and save the grace of the
institution as well as the individual, who is an officer of the Court.
However, for the reasons best known to him he has neither shown regret G
in spite of our persuasion or the advice of the learned Attorney General.
Thus, we have to consider imposing an appropriate sentence upon him.
91. Duly balancing the factors urged by Dr. Dhavan as to the
offender, offence, the convicting judgment and the defence taken we
have to decide the question of sentence. In our considered view, the act H
582 SUPREME COURT REPORTS [2020] 8 S.C.R.
A committed by the contemnor is a very serious one. He has attempted to
denigrate the reputation of the institution of administration of justice of
which he himself is a part. At the cost of repetition, we have to state that
the faith of the citizens of the country in the institution of justice is the
foundation for rule of law which is an essential factor in the democratic
set up.
B
92. We have given deep thought as to what sentence should be
imposed on the contemnor. The conduct of the present contemnor also
needs to be taken into consideration. This Court in Tehseen Poonawala
(supra) has observed that the said matter was a fit matter wherein criminal
contempt proceedings were required to be initiated. However, the court
C stopped at doing so observing that it would have been an unequal fight.
The learned Attorney General had also initiated contempt proceedings
against the present contemnor, however, on the contemnor submitting
regret, the learned Attorney General sought withdrawal of the said
proceedings. However, the said proceedings are still pending. In the
D present matter also not on one occasion but on several occasions, we
not only gave opportunity but also directly or indirectly pursuaded the
contemnor to express regret. Not only that the learned Attorney General
had also suggested that it was in the fitness of things that a contemnor
expresses regret and withdraws the allegation made in the affidavit in
reply, which request was not heeded to by the contemnor. The contemnor
E not only gave wide publicity to the second statement submitted before
this Court on 24.08.2020 prior to the same being tendered to the Court,
but also gave various interviews with regard to sub judice matter, thereby
further attempting to bring down the reputation of this Court. If we do
not take cognizance of such conduct it will give a wrong message to the
F lawyers and litigants throughout the country. However, by showing
magnanimity, instead of imposing any severe puishment, we are
sentencing the contemnor with a nominal fine of Re.1/- (Rupee one).
93. We, therefore, sentence the contemnor with a fine or Re.1/-
(Rupee one) to be deposited with the Registry of this Court by 15.09.2020,
G failing which he shall undergo a simple imprisonment for a period of
three months and further be debarred from practising in this Court for a
period of three years.
94. Accordingly, the present proceedings including all pending
applications, if any, shall stand disposed of.
H
Kalpana K. Tripathy Contempt proceedings disposed of.
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