Case comment on case law

RE: PRASHANT BHUSHAN AND ANR….Alleged Contemnor(S)

 Case name:RE: PRASHANT BHUSHAN AND ANR…. Alleged Contemnor(S)

 Case number: SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
 Court:The Supreme Court of India
 Bench: Justice Arun Mishra, Justice B. R. Gavai, Justice Krishna Murari
 Decided on}:14 august 2020
 Article involved: Article 129, 215 & 142 of the Constitution of India, 1950
 Acts: Information Technology Act, 2000; The Rules to Regulate Proceedings for Contempt of the Supreme
Court, 1975; Contempt of Courts Act, 1971.
 Learned senior council appear for Shri. Prashant Bhushan:Dr. Rajeev Dhavan and Shri Dushyant Dave
 On behalf of Contemnor 2, Twitter Inc., Shri Sajan Poovayya, learned senior counsel:

Mr. Priyadarshi Banerjee and Mr. Manu Kulkarni.

Facts of the case:

The Suo moto cognizance was taken by court by Shri Mahek Maheshwari for tweet on twitter of Shri.Prashant
Bhushan which could not ascertain by court that the complaint was malafide or with bad intention by contemnor.

The view of that which is malicious, scurrilous in the eyes of supreme court which affects the Indian justice system.
Further held Prashant Bhushan guilty of contempt of court

Background of contemnor:

The contemnor is a lawyer of thirty-five years of standing, who has pursued public interest proceeding with success
at some personal and professional value. He got appreciation from the Court. he's a innovation member of Campaign
for Judicial responsibility, which has many senior counsels of repute. He has brought sure corruption cases and
causes to the Court like V. Ramaswamy case, Coal Mining case, Goa Mining case, province Mining case, a problem
concerning the appointment of CVC, CBI Director’s case, Lokpal case etc. within the public interest, he has filed
many petitions like Narmada case, Bofors case, Police Reform case, Passive killing case, HPCL Privatization case,
Street Vendors case, Rickshaw Pullers case, Singur Land Acquisition case, Draught Management, Gram Nyayalaya,
and Electoral Bond cases.

Tweets which made by contemner

1 Tweet: Date 27 June 2020

When historians in future look back at the last 6 years to see how 3 democracies has been destroyed in India even
without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more
particularly the role of the last 4 CJIs.

2.Tweet: Date 22 July 2020

CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a
time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice.
Relevant section involved:

1.Criminal Contempt [3]: the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever which:

1. scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or
2. prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
3. interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any
other manner;

4. Article 129: The Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself [4]

5. Article 142(2)[5]: The Supreme Court shall, as respects the whole of the territory of India, have all and
every power to make any order for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any contempt.

Issues involved:

1.Whether the tweets published by Mr. Prashant Bhushan is a criticism of the Indian judiciary or has dashed the
public confidence in the institution of the supreme court?

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

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

4.Whether issues involved amount to contempt of court?

5.whether tweeter inc. is involved in this proceeding or responsible for contempt?

Statement of arguments:

The tweet which was mentioned relates directly to right of speech article 19(1) (a) and does not involve any
contempt even if the words written are the right of free fair discussion of the state of affairs. The tweets were not
scandalizing the image of the apex court.

CJI is not the Supreme court so that in this case the Court cannot be equated with the Chief Justice, even a
succession of 4 CJI's.

Arguments by Prashant Bhushan while making his clarification toward tweet: It was argued that while the initial
tweet was made to express the anguish on the incongruity between CJI’s reckless attitude that riding a motorcycle
without wearing a mask while at the same time restraining the SC from functioning physically and hearing cases
during the period of lockdown on account of COVID-19

Further, the learned counsel submitted that in the present case, the criticism is against the CJI as an Individual. In the
first tweet agony is seen as of Mr. Bhushan because of the non-functioning of the physical court from past several
months, which in turn is denying justice to the litigants.
As in the second tweet, the expression of his opinion on the action/inaction of the last 4 CJI's and how the same has
contributed to the destruction of democracy in India.

Contemnor 2: Twitter Inc argued that the originator of the tweets posted on its platform, is a mere intermediary. And
not having control of post and tweet, rather, it acts as a display board for the people. Under Section 79 of the
Information Technology act, 2000, Twitter Inc has safe hands over posting of users.

Summary of Court’s decision:

Decision Held by Court:

1. Twitter Inc is a mere intermediary between the author and the platform and therefore is not Liable.
2. Mr. Prashant Bhushan, Advocate, is liable for criminal contempt of court.

The court held Prashant Bhushan guilty of contempt, by an order dated August 20, the Court asked to submit an
unconditional apology. Which was then refused by him after that the Court by an order dated August 31, 2020
sentenced him with a symbolic fine of INR 1, and a simple imprisonment for a period of three months further added
on if he dont pay he will be liable to be debarred from practicing in the Supreme Court for a period of three years.

Article 19(1) of the Constitution of India grants a fundamental right to freedom of expression, but is subject to
reasonable restrictions under Article 19(2).

Under the Indian Contempt of Courts Act, 1971, any attempt which does or tends to scandalize, lower, prejudice,
interfere or obstruct the administration of justice is considered a ‘criminal contempt'. Constitutional right, thus
enabling the Courts to initiate contempt Suo moto. This power is vested in Courts to uphold its authority and stop
impairment of a way of confidence which individuals have within the administration of justice.

Notably, the Court initially began by positing a transparent correlation between remarks affecting strict performance
of duties of judges’ and their ability to hinder the administration of justice. By delving into past precedents, it noted
that such insinuations implicitly derogated the dignity of the Court and amounted to undermining confidence of the
people within the integrity of judges.

The Court, however, sought to draw a crucial distinction. It observed that while vilification of a judge as a judge
deserves contempt, a vilification of the judge as a private doesn't – the judges in such cases are left to resort to non-
public remedies.

considerations propounded by Justice V.R. Krishna Iyer in Re: S. Mulgaokar, (1978) 3 SCC 339 to adjudicate
contempt cases: (i) wise economy of the utilization of contempt power by the Court, (ii) harmonizing constitutional
values of free criticism and therefore the need for fearless curial process, (iii) separating personal protection of
libelled judge and community confidence within the prevention of the obstruction of justice, (iv) discretionary
exercise of authority, (v) not being hypersensitive even when criticisms overstep limits and (vi) declaring contempt
in cases of malicious, scurrilous, intimidatory or offensive remarks beyond condonable limits.
Given the multifold tests propounded by Justice V.R. Iyer, the Court then delved into an analysis of the tweets.
Remarkably, it dissected them into various segments, observing that the primary part of the primary tweet (‘CJI
rides a 50-lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet’) was a
private criticism against the CJI as a private. However, the second a part of the primary tweet (‘at a time when he
keeps the SC in lockdown mode denying citizens their fundamental rights to access justice’)

The Court concluded that Prashant Bhushan’s initial tweet gave the impression that the CJI because the head of the
Indian judiciary had kept the Supreme Court in lockdown mode, thereby denying citizens their fundamental right to
access justice. [p. 95]

It is important to notice that the Court observed numerous flaws with the factual accuracy of the primary tweet.
While physically non-functional, the Court was functioning through video conferencing tools and discharging their
duties during the number of impugned tweets. As long as context, a ‘patently false’ and ‘wild allegation’ about the
CJI had the tendency to shake the arrogance of the general public within the institution of the judiciary also as
undermining the authority and administration of justice, consistent with the Court. As a result, the Court also
rejected Prashant Bhushan’s claim of real criticism on account of his anguish of the physical non-functioning of the
courts.

First, Prashant Bhushan’s comment that the Supreme Court had played a considerable role in allowing the
destruction of democracy and therefore the role of past four CJIs in perpetuating it had been an immediate criticism
of the institution of the Supreme Court and the institution of CJI. [p. 100] Second, given the large extent of the reach
of the tweet and therefore the character of the contemnor, the Court concluded that Prashant Bhushan behaved
irresponsibly and thus, the tweets weren't eligible permanently for faith protection. Third, it had also not been a good
criticism of the functioning of the judiciary made in real within the public interest, rendering it ineligible for cover
under the Article 19(1) freedom of expression rule.

Combined, the tweets had an impact of dissuading a standard litigant and risked losing confidence within the
Supreme Court and CJI. The Court also believed that if it did not protect itself from malicious insinuations like this
case, it's going to open floodgates of comparable attacks on other judges. In effect, preventing malicious attacks was
an issue of national Honour and prestige within the comity of countries and required to be managed with a degree of
firmness. [p. 105] The Supreme Court found Prashant Bhushan guilty of getting committed contempt of the Court.

Analysis of case:

It is duty of every person to obey the laws and with respect to dignity of supreme court to follow limits within
jurisdiction. The freedom of speech under article 19(1)(a) amounts to freedom which not merely about objectiveness
of comments but it will be held liable for what the person doing in day by changing with environment.

In this case the contemnor held liable whether he is just using the rights and tweet for beneficial purposes for
opening eyes on social issues. The decision of the court from the beginning seems harsh towards contemnor.

Regards to contemnor he did not seek for unconditional apology as he might of think if
he accepts the decision by court, he will be held guilty of crime he has not committed. Later issued fine of rupees1 is
just a token imposed by supreme court as punishment otherwise the imprisonment for three years would be given in
case of contempt of court by this its proven that law is above all and the supreme court is having that authority to
regularized it.
Endnotes:

1.Sec 2(c) of the Contempt of Court Act, 1971

2.Information Technology act, 2000

3.The Constitution of India, 1950.

4.https://indianexpress.com/article/india/supreme-court-prashant-bhushan-guilty-contempt-of-court-twitter-
sentence-6554260/

5.https://thewire.in/law/supreme-court-finds-prashant-bhushan-guilty-of-contempt-in-tweets-case

6.Suo Motu Contempt Petition (Crl.) no. 1 of 2020 against Adv. Prashant Bhushan & Anr.

7.Reply filed by Adv. Prashant Bhushan to the contempt notice issued by the Supreme Court of India