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REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
IN RE:
PRASHANT BHUSHAN & ANR. …. ALLEGED CONTEMNOR(S)
JUDGMENT
1. A petition came to be filed in this Court by one Mahek
Maheshwari bringing to the notice of this Court, a tweet made
by Mr. Prashant Bhushan, Advocate, alleged contemnor No.1
praying therein to initiate contempt proceedings against the
alleged contemnors for wilfully and deliberately using
hate/scandalous speech against this Court and entire judicial
system. The Registry placed the said petition on the
Administrative side of this Court seeking direction as to
whether it should be listed for hearing or not, as consent of the
learned Attorney General for India had not been obtained by
the said Shri Maheshwari to file the said petition. After
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examining the matter on the Administrative side, this court on
the administrative side directed the matter to be listed on the
Judicial side to pass appropriate orders. Accordingly, the
petition was placed before us on 22.7.2020. On the said date,
we passed the following order:
“This petition was placed before us on the
administrative side whether it should be
listed for hearing or not as permission of
the Attorney General for India has not
been obtained by the petitioner to file this
petition. After examining the matter on
administrative side, we have directed the
matter to be listed before the Court to pass
appropriate orders. We have gone through
the petition. We find that the tweet in
question, made against the CJI, is to the
following effect :-
“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!”
Apart from that, another tweet has been
published today in the Times of India
which was made by Shri Prashant
Bhushan on June 27, 2020, when he
tweeted, “When historians in future look
back at the last 6 years to see how
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democracy has been destroyed in India
even without a formal Emergency, they
will particularly mark the role of the
Supreme Court in this destruction, &
more particularly the role of the last 4
CJIs.”
We are, prima facie, of the view that
the aforesaid statements on Twitter have
brought the administration of justice in
disrepute and are capable of undermining
the dignity and authority of the Institution
of Supreme Court in general and the office
of the Chief Justice of India in particular,
in the eyes of public at large.
We take suo motu cognizance of the
aforesaid tweet also apart from the tweet
quoted above and suo motu register the
proceedings.
We issue notice to the Attorney
General for India and to Mr. Prashant
Bhushan, Advocate also.
Shri Sajan Poovayya, learned senior
counsel has appeared along with Mr.
Priyadarshi Banerjee and Mr. Manu
Kulkarni, learned counsel appearing on
behalf of the Twitter, and submitted that
the Twitter Inc., California , USA is the
correct description on which the tweets
were made by Mr. Prashant Bhushan. Let
the reply be also filed by them.
List on 05.08.2020.”
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2. In response to the notice issued by this Court, both
the alleged contemnors have filed their respective affidavit-inreply. Mr. Prashant Bhushan, the alleged contemnor No.1, has
filed a detailed affidavit running into 134 pages, which along
with the Annexures runs into 463 pages.
3. The main contention of the alleged contemnor No.1 is,
that insofar as the first tweet is concerned, it was made
primarily to underline his anguish at the non-physical
functioning of the Supreme Court for the last more than three
months, as a result of which fundamental rights of citizens,
such as those in detention, those destitute and poor, and
others facing serious and urgent grievances were not being
addressed or taken up for redressal. It is contended, that it
was made to highlight the incongruity of the situation where
the CJI on one hand keeps the court virtually in lockdown due
to COVID fears, with hardly any cases being heard and those
heard, also by an unsatisfactory process through video
conferencing and on the other hand is seen in a public place
with several people around him without a mask. It is his
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submission, that expressing his anguish by highlighting the
said incongruity and the attendant facts, the first tweet cannot
be said to constitute contempt of court. It is submitted, that if
it is regarded as a contempt, it would stifle free speech and
would constitute an unreasonable restriction on the right of a
citizen under Article l9(1)(a) of the Constitution.
4. Insofar as the second tweet dated 27.6.2020 is
concerned, it is his submission, that the said tweet has three
distinct elements, each of which is his bona fide opinion about
the state of affairs in the country in the past six years and the
role of the Supreme Court and in particular the role of the last
4 CJIs. It is submitted, that the first part of the tweet contains
his considered opinion, that democracy has been substantially
destroyed in India during the last six years. The second part is
his opinion, that the Supreme Court has played a substantial
role in allowing the destruction of the democracy and the third
part is his opinion regarding the role of the last 4 Chief Justices
in particular in allowing it. It is his submission, that such an
expression of opinion, however outspoken, disagreeable or
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however unpalatable to some, cannot constitute contempt of
court. It is his contention, that it is the essence of a democracy
that all institutions, including the judiciary, function for the
citizens and the people of this country and they have every
right to freely and fairly discuss the state of affairs of an
institution and build public opinion in order to reform the
institution.
5. It is further contended, that the Chief Justice is not
the Supreme Court and that raising issues of concern
regarding the manner in which a CJI conducts himself during
court vacations, or raising issues of grave concern regarding
the manner in which four CJIs have used, or failed to use, their
powers as “Master of the Roster" to allow the spread of
authoritarianism, majoritarianism, stifling of dissent,
widespread political incarceration and so on, cannot and does
not amount to "scandalising or lowering the authority of the
court”. It is submitted, that the Court cannot be equated with
a Chief Justice, or even a succession of four CJIs. It is
submitted, that to bona fide critique the actions of a CJI, or a
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succession of CJIs, cannot and does not scandalise the court,
nor does it lower the authority of the Court. It is his
submission, that to assume or suggest that the CJI is the
Supreme Court and the Supreme Court is the CJI is to
undermine the institution of the Supreme Court of India.
6. Insofar as alleged contemnor No.2, Twitter Inc. is
concerned, in the affidavit-in-reply filed on its behalf it is
stated, that it is a global website providing micro-blogging
platform for self-expression of its users and to communicate.
It is further stated, that the alleged contemnor No.2 has not
authored or published the tweets in question and the same
have been authored and published by alleged contemnor No.1.
It is also submitted, that it is merely an ‘intermediary’ within
the meaning as provided under the Information Technology
Act, 2000 and thus is not the author or originator of the tweets
posted on its platform. In this background it has been
submitted, that the alleged contemnor No.2 has no editorial
control on the tweets and merely acts as a display board. It is
also submitted, that under section 79 of the Information
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Technology Act, 2000 the alleged contemnor no.2 has been
provided safe harbour as an intermediary for any objectional
posts on its platform posted by its users. It is lastly submitted,
that to show its bonafides, the alleged contemnor No.2 after
the order dated 22.07.2020 of this court, taking cognizance of
the impugned tweets, blocked the access to the said tweets and
disabled the same. In this premise it has been submitted, that
alleged contemnor No.2 be discharged from the present
proceedings.
7. We have extensively heard Shri Dushyant Dave,
learned Senior Counsel appearing on behalf of the alleged
Contemnor No.1 and Shri Sajan Poovayya, learned Senior
Counsel appearing on behalf of the alleged contemnor No.2.
8. Shri Dave, learned Senior Counsel appearing on behalf
of the alleged contemnor No.1 raised a preliminary objection.
He submitted, that since the present proceedings are initiated
on the basis of the petition filed by Mr. Maheshwari, the same
cannot be treated as a suo motu contempt petition. He
submitted, that unless there was a consent of the learned
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Attorney General for India, the proceedings could not have
been initiated on the basis of complaint of Mr. Maheshwari.
9. Relying on the definition of ‘criminal contempt’ as is
found in the Contempt of Courts Act, 1971, Shri Dushyant
Dave, learned Senior Counsel, submits, that the order issuing
notice does not state that any act of the alleged contemnor No.1
scandalizes or tends to scandalize or lowers or tends to lower
the authority of any Court. Neither does it mention, that any
of his act prejudices or interferes or tends to interfere with, due
course of any judicial proceeding or interferes or tends to
interfere with, or obstructs or tends to obstruct, the
administration of justice in any manner. He therefore submits,
that, as such, the proceedings initiated by this Court cannot
continue.
10. Relying on the judgment of the Constitution Bench of
this Court in Brahma Prakash Sharma and Others vs. The
State of Uttar Pradesh1, Shri Dave submits, that what
should weigh with the Court is that, whether the reflection on
1 1953 SCR 1169
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the conduct or character of a judge is within the limits of fair
and reasonable criticism and whether it is mere libel or
defamation of the Judge. It is submitted, that if it is a mere
defamatory attack on the judge and is not calculated to
interfere with the due course of justice or the proper
administration of the law by such court, it is not proper to
proceed by way of contempt. He would submit, that in the
present case, at the most, it can be said that the allegations in
the tweets are only against the present CJI and the past three
CJIs and that too, in their individual capacity and as such, in
no way they can be said to be calculated to interfere with the
due course of justice or the proper administration of the law
by Court and therefore, it is not proper to continue with the
present contempt proceedings.
11. He submits, that in such a situation, the question is
not to be determined solely with reference to the language or
contents of the statement made. All the surrounding facts and
circumstances under which the statement was made and the
degree of publicity which was given to it would be relevant
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circumstances. He submits, that insofar as the first tweet is
concerned, the said was an expression of anguish by the
alleged contemnor No.1 on account of non-functioning of the
physical courts for the last more than three months and
thereby, denying the right to justice to the litigants. Insofar as
the second tweet is concerned, in the submission of Shri Dave,
that the said was an expression of his opinion that on account
of the action or inaction of the Four CJIs that contributed to
the destruction of democracy in the country, without a formal
emergency.
12. Relying on the Constitution Bench judgment of this
Court in the case of Baradakanta Mishra vs The Registrar
Of Orissa High Court & another2, learned Senior Counsel
submits, that when proceedings in contempt are taken for
vilification of the judge, the question which the court has to
ask is whether the vilification is of the judge as a judge or it is
the vilification of the judge as an individual. He submits, that
if the vilification of the judge is as an individual, then he is left
2
(1974) 1 SCC 374
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to his private remedies and the Court has no power to punish
for contempt. It is submitted, that however, in the former case,
the Court will proceed to exercise the jurisdiction with
scrupulous care and in cases which are clear and beyond
reasonable doubt. It is submitted, in the present case, the
vilification, if any, is against the CJI as an individual and not
as a CJI of the Supreme Court and as such, the proceedings of
the Court would not be tenable.
13. Relying on the observations made by Justice Krishna
Iyer in Re: S. Mulgaokar3, learned Senior Counsel submits,
that the court should be willing to ignore, by a majestic
liberalism, trifling and venial offences. It is submitted, that the
Court will not be prompted to act as a result of an easy
irritability. Rather, it shall take a noetic look at the
conspectus of features and be guided by a constellation of
constitutional and other considerations when it chooses to
use, or desist from using, its power of contempt. He submits,
that this Court had held, that to criticize the judge fairly, albeit
3
(1978) 3 SCC 339
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fiercely, is no crime but a necessary right, twice blessed in a
democracy. He submits, that where freedom of expression,
fairly exercised, subserves public interest in reasonable
measure, public justice cannot gag it or manacle it.
14. Shri Dave, learned Senior Counsel, submits, that in
the case of P.N. Duda vs. P. Shiv Shanker & Others4, the
then Minister of Law, Justice and Company Affairs P. Shiv
Shankar had made a speech making fierce allegations to the
effect, that the Supreme Court was composed of elements from
the elite class, that because they had their ‘unconcealed
sympathy for the haves’ they interpreted the expression
‘compensation’ in the manner they did. He submits, that the
Supreme Court held, that the said was an expression of
opinion about an institutional pattern. It is submitted, that
even in spite of such serious allegations made, the Court found
that the case of proceeding for contempt was not made out.
15. Lastly, Shri Dave submits, that taking into
consideration the fact, that the alleged contemnor No.1 in his
4
(1988) 3 SCC 167
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practice at the Supreme Court and the Delhi High Court had
consistently taken up many issues of public interest
concerning the health of democracy and its institutions and in
particular the functioning of the judiciary and especially its
accountability, this Court should not proceed against him.
16. The legal position is no more res integra.
17. Insofar as the contention of the learned Senior
Counsel appearing for the alleged contemnor No.1, that in the
present case, the Court could not have initiated suo motu
proceedings and could have proceeded on the petition filed by
Mr. Mahek Maheshwari only after the consent was obtained
from the learned Attorney General for India is concerned, very
recently, a Bench of this Court has considered identical
submissions in the case of Re: Vijay Kurle & Ors.5. The
Bench has considered various judgments of this Court on the
issue, in detail. Therefore, it will be apposite to refer to the
following paragraphs of the judgment wherein the earlier law
has been discussed in extenso:
5 2020 SCC Online SC 407 (Suo Motu Contempt Petition (Criminal) No.2 of 2019
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“Powers of the Supreme Court
7. Before we deal with the objections
individually, we need to understand what are
the powers of the Supreme Court of India in
relation to dealing with contempt of the
Supreme Court in the light of Articles 129
and 142 of the Constitution of India when
read in conjunction with the Contempt of
Courts Act, 1971. According to the alleged
contemnors, the Contempt of Courts Act is
the final word in the matter and if the
procedure prescribed under the Contempt of
Courts Act has not been followed then the
proceedings have to be dropped. On the other
hand, Shri Sidharth Luthra, learned amicus
curiae while making reference to a large
number of decisions contends that the
Supreme Court being a Court of Record is not
bound by the provisions of the Contempt of
Courts Act. The only requirement is that the
procedure followed is just and fair and in
accordance with the principles of natural
justice.
Article 129 of the Constitution of India
reads as follows:
“129. Supreme Court to be a court of
record.- 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.”
A bare reading of Article 129 clearly shows
that this Court being a Court of Record shall
have all the powers of such a Court of Record
including the power to punish for contempt
of itself. This is a constitutional power which
cannot be taken away or in any manner
abridged by statute.
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Article 142 of the Constitution of India
reads as follows:
“142. Enforcement of decrees and
orders of Supreme Court and orders as
to discovery, etc.- (1) The Supreme Court
in the exercise of its jurisdiction may pass
such decree or make such order as is
necessary for doing complete justice in
any cause or matter pending before it, and
any decree so passed or order so made
shall be enforceable throughout the
territory of India in such manner as may
be prescribed by or under any law made
by Parliament and, until provision in that
behalf is so made, in such manner as the
President may by order prescribe.
(2) Subject to the provisions of any law
made in this behalf by Parliament, the
Supreme Court shall, as respects the
whole of the territory of India, have all and
every power to make any order for the
purpose of securing the attendance of any
person, the discovery or production of any
documents, or the investigation or
punishment of any contempt of itself.”
Article 142 also provides that this Court
can punish any person for contempt of itself
but this power is subject to the provisions of
any law made by parliament. A comparison
of the provisions of Article 129 and clause (2)
of Article 142 clearly shows that whereas the
founding fathers felt that the powers under
clause 92) of Article 142 could be subject to
any law made by parliament, there is no such
restriction as far as Article 129 is concerned.
The power under clause (2) of Article 142 is
not the primary source of power of Court of
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Record which is Article 129 and there is no
such restriction in Article 129. Samaraditya
Pal in the Law of Contempt has very
succinctly stated the legal position as follows:
“Although the law of contempt is largely
governed by the 1971 Act, it is now settled
law in India that the High Courts and the
Supreme Court derive their jurisdiction
and power from Articles 215 and 129 of
the Constitution. This situation results in
giving scope for “judicial self-dealing”.
The High Courts also enjoy similar powers
like the Supreme Court under Article 215 of
the Constitution. The main argument of the
alleged contemnors is that notice should
have been issued in terms of the provisions
of the Contempt of Courts Act and any
violation of the Contempt of Courts Act would
vitiate the entire proceedings. We do not
accept this argument. In view of the fact that
the power to punish for contempt of itself is
a constitutional power vested in this Court,
such power cannot be abridged or taken
away even by legislative enactment.
8. To appreciate the rival contention, we
shall have to make reference to a number of
decisions relied upon by both the parties.
The first judgment on the point is Sukhdev
Singh Sodhi v. The Chief Justice and Judges
of the Pepsu High Court. It would be
pertinent to mention that the said judgment
was given in the context of the Contempt of
Courts Act, 1952. The issue before this Court
in the said case was whether contempt
proceedings could said to be the proceedings
under the Criminal Procedure Code, 1973
(Cr.PC) and the Supreme Court had the
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power to transfer the proceedings from one
court to another under the Cr.PC. Rejecting
the prayer for transfer, this Court held as
follows:—
“….We hold therefore that the Code of
Criminal Procedure does not apply in
matters of contempt triable by the High
Court. The High Court can deal with it
summarily and adopt its own procedure.
All that is necessary is that the procedure
is fair and that the contemner is made
aware of the charge against him and given
a fair and reasonable opportunity to
defend himself. This rule was laid down by
the Privy Council in In re Pollard (L.R. 2
P.C. 106 at 120) and was followed in India
and in Burma in In re Vallabhdas (I.L.R.
27 Bom. 394 at 390) and Ebrahim
Mamoojee Parekh v. King Emperor (I.L.R. 4
Rang. 257 at 259-261). In our view that is
still the law.”
9. A Constitution Bench of this Court
in Shri C. K. Daphtary v. Shri O.P. Gupta was
dealing with a case where the contemnor had
published a pamphlet casting scurrilous
aspersions on 2 Judges of this Court. During
the course of argument, the contemnor
raised a plea that all the evidence has not
been furnished to him and made a request
that the petitioner be asked to furnish the
“pamphlet” or “book” annexed to the petition.
The Court rejected this argument holding
that the booklet/pamphlet had been annexed
to the petition in original and the Court had
directed that the matter be decided on
affidavits.
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10. In respect of the absence of a specific
charge being framed, the Court held that a
specific charge was not required to be framed
and the only requirement was that a fair
procedure should be followed. Dealing with
the Contempt of Courts Act, 1952 this Court
held as follows:—
“58. We are here also not concerned
with any law made by Parliament. Article
129 shows that the Supreme Court has all
the powers of a Court of Record, including
the power to punish for contempt of itself;
and Article 142(2) goes further and
enables us to investigate any contempt of
this Court.”
11. Thereafter, this Court approved the
observations in Sukhdev Singh Sodhi's
case (supra) and held as follows:—
“78. In our view that is still the law. It
is in accordance with the practice of this
Court that a notice was issued to the
respondents and opportunity given to
them to file affidavits stating facts and
their contentions. At one stage, after
arguments had begun Respondent No. 1
asked for postponement of the case to
engage some lawyers who were engaged in
fighting elections. We refused
adjournment because we were of the view
that the request was not reasonable and
was made with a view to delay matters. We
may mention that the first respondent
fully argued his case for a number of days.
The procedure adopted by us is the usual
procedure followed in all cases.”
12. According to the alleged contemnors,
both the aforesaid judgments are per
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incuriam after coming into force of the
Contempt of Courts Act, 1971. They are
definitely not per incuriam because they have
been decided on the basis of the law which
admittedly existed, but for the purposes of
this case, we shall treat the argument of the
alleged contemnors to be that the judgments
are no longer good law and do not bind this
Court. It has been contended by the alleged
contemnors that both the aforesaid cases are
overruled by later judgments. We shall now
refer to some of the decisions cited by the
parties.
13. In P.N. Duda v. P. Shiv Shanker the
respondent, Shri P. Shiv Shiv Shanker, who
was a former judge of the High Court and was
the Minister for Law, Justice and Company
Affairs delivered a speech which was said to
be contemptuous. A petition was filed by the
petitioner P. N. Duda who was an advocate of
this Court but this Court declined to initiate
contempt proceedings. At the outset, we may
note that while giving the reasons for not
initiating contempt, though this Court held
that the contempt petition was not
maintainable, it went into the merits of the
speech delivered by Shri P. Shiv Shanker and
held that there was no imminent danger of
interference with the administration of the
justice and bringing administration into
disrepute. It was held that Shri P. Shiv
Shanker was not guilty of contempt of this
Court. Having held so, the Court went on to
decide whether the petition could have been
entertained on behalf of Shri Duda. In the
said petition, Shri Duda had written a letter
to the Attorney General seeking consent for
initiating contempt proceedings against Shri
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P. Shiv Shanker. A copy of the said letter was
also sent to the Solicitor General of India.
While seeking consent, the petitioner had
also stated that the Attorney General may be
embarrassed to give consent for prosecution
of the Law Minister and in view of the said
allegations, the Attorney General felt that the
credibility and authority of the office of the
Attorney General was undermined and
therefore did not deny or grant sanction for
prosecution. The Court held that the
petitioner could not move the Court for
initiating contempt proceedings against the
respondent without consent of the Attorney
General and the Solicitor General. The
relevant portion of the judgment reads as
follows:—
“39. The question of contempt of court
came up for consideration in the case
of C.K. Daphtary v. O.P. Gupta. In that
case a petition under Article 129 of the
Constitution was filed by Shri C.K.
Daphtary and three other advocates
bringing to the notice of this Court alleged
contempt committed by the respondents.
There this court held that under Article
129 of the Constitution this Court had the
power to punish for contempt of itself and
under Article 143(2) it could investigate
any such contempt. This Court reiterated
that the Constitution made this Court the
guardian of fundamental rights. This
Court further held that under the existing
law of contempt of court any publication
which was calculated to interfere with the
due course of justice or proper
administration of law would amount to
contempt of court. A scurrilous attack on
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a Judge, in respect of a judgment or past
conduct has in our country the inevitable
effect of undermining the confidence of the
public in the Judiciary ; and if confidence
in Judiciary goes administration of justice
definitely suffers. In that case a pamphlet
was alleged to have contained statements
amounting to contempt of the court. As
the Attorney General did not move in the
matter, the President of the Supreme
Court bar and the other petitioners chose
to bring the matter to the notice of the
court. It was alleged that the said
President and the other members of the
bar have no locus standi. This Court held
that the court could issue a notice suo
motu. The President of the Supreme Court
bar and other petitioners were perfectly
entitled to bring to the notice of the court
any contempt of the court. The first
respondent referred to Lord Shawcross
Committee's recommendation in U.K. that
“proceedings should be instituted only if
the Attorney General in his discretion
considers them necessary”. This was only
a recommendation made in the light of
circumstances prevailing in England. But
that is not the law in India, this Court
reiterated. It has to be borne that decision
was rendered on March 19, 1971 and the
present Act in India was passed on
December 24, 1971. Therefore that
decision cannot be of any assistance. We
have noticed Sanyal Committee's
recommendations in India as to why the
Attorney General should be associated
with it, and thereafter in U.K. there was
report of Phillimore Committee in 1974. In
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India the reason for having the consent of
the Attorney General was examined and
explained by Sanyal Committee Report as
noticed before.”
14. The alleged contemnors contended
that the last portion of the aforesaid
paragraph shows that the judgment in C.K.
Daphtary's case (supra) having been
delivered prior to the enactment of Contempt
of Courts Act, 1971 is no longer applicable.
We may however point out that in the very
next paragraph in the same judgment, it was
held as follows:—
“40. Our attention was drawn by Shri
Ganguly to a decision of the Allahabad
High Court in G.N. Verma v. Hargovind
Dayal (AIR 1975 All 52) where the Division
Bench reiterated that Rules which provide
for the manner in which proceedings for
contempt of court should be taken
continue to apply even after the enactment
of the Contempt of Courts Act, 1971.
Therefore cognizance could be taken suo
motu and information contained in the
application by a private individual could
be utilised. As we have mentioned
hereinbefore indubitably cognizance could
be taken suo motu by the court but
members of the public have also the right
to move the court. That right of bringing to
the notice of the court is dependent upon
consent being given either by the Attorney
General or the Solicitor General and if that
consent is withheld without reasons or
without consideration of that right granted
to any other person under Section 15 of
the Act that could be investigated in an
application made to the court.”
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15. The alleged contemnors rely on certain
observations in the concurring judgment of
Justice Ranganathan in the same judgment
wherein he has approved the following
passage from a judgment of the Delhi High
Court in Anil Kumar Gupta v. K. Subba
Rao.:—
“The office is to take note that in future
if any information is lodged even in the
form of a petition inviting this Court to
take action under the Contempt of Courts
Act or Article 215 of the Constitution,
where the informant is not one of the
persons named in Section 15 of the said
Act, it should not be styled as a petition
and should not be placed for admission on
the judicial side. Such a petition should be
placed before the Chief Justice for orders
in Chambers and the Chief Justice may
decide either by himself or in consultation
with the other judges of the Court whether
to take any cognizance of the information.
The office is directed to strike off the
information as “Criminal Original No. 51
of 1973” and to file it.”
Thereafter Justice Ranganathan made the
following observation:—
“54….I think that the direction given by
the Delhi High Court sets out the proper
procedure in such cases and may be
adopted, at least in future, as a practice
direction or as a rule, by this Court and
other High Courts….”
16. Relying upon the aforesaid
observations in the judgment delivered by
Justice Ranganathan it is submitted that the
petition could not have been placed for
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admission on the judicial side but should
have been placed before the Chief Justice
and not before any other Bench. We are not
at all in agreement with the submission.
What Justice Ranganathan observed is an
obiter and not the finding of the Bench and
this is not the procedure prescribed under
the Rules of this Court.
17. This Court has framed rules in this
regard known as The Rules to Regulate
Proceedings for Contempt of the Supreme
Court, 1975 (for short ‘the Rules’) and
relevant portion of Rule 3 of the Rules reads
as follows:—
“3. In case of contempt other than the
contempt referred to in rule 2, the Court
may take action—
(a) suo motu, or
(b) on a petition made by AttorneyGeneral, or Solicitor- General, or
(c) on a petition made by any person,
and in the case of a criminal
contempt with the consent in writing
of the Attorney-General or the
Solicitor-General.”
18. A bare perusal of Rule 3 shows that
there are 3 ways for initiating contempt
proceedings. The first is suo motu, the second
is on a petition made by the Attorney General
or the Solicitor General, and the third is on
the basis of a petition made by any person
and where criminal contempt is involved
then the consent of the Attorney General or
the Solicitor General is necessary. Rules 4
and 5 prescribe for the manner of filing of a
petition under Rules 3(b) and 3(c). Rule 4 lays
26
down the requirements of a petition to be
filed under Rules 3(b) and 3(c) and Rule 5
requires that every petition under Rule 3(b)
or Rule 3(c) shall be placed before the Court
for preliminary hearing. Rule 6 requires
notice to the person charged to be in terms of
Form I. Rule 6 reads as follows:—
“6. (1) Notice to the person charged shall
be in Form I. The person charged
shall, unless otherwise ordered,
appear in person before the Court as
directed on the date fixed for hearing
of the proceeding, and shall continue
to remain present during hearing till
the proceeding is finally disposed of
by order of the Court.
(2) When action is instituted on petition,
a copy of the petition along with the
annexure and affidavits shall be
served upon the person charged.”
19. These Rules have been framed by the
Supreme Court in exercise of the powers
vested in it under Section 23 of the Contempt
of Courts Act, 1971 and they have been
notified with the approval of Hon'ble the
President of India.
20. In Pritam Pal v. High Court of Madhya
Pradesh, Jabalpur Through Registrar, a 2
Judge Bench of this Court held as follows:—
“15. Prior to the Contempt of Courts
Act, 1971, it was held that the High Court
has inherent power to deal with a
contempt of itself summarily and to adopt
its own procedure, provided that it gives a
fair and reasonable opportunity to the
contemnor to defend himself. But the
27
procedure has now been prescribed by
Section 15 of the Act in exercise of the
powers conferred by Entry 14, List III of
the Seventh Schedule of the Constitution.
Though the contempt jurisdiction of the
Supreme Court and the High Court can be
regulated by legislation by appropriate
Legislature under Entry 77 of List I and
Entry 14 of List III in exercise of which the
Parliament has enacted the Act of 1971,
the contempt jurisdiction of the Supreme
Court and the High Court is given a
constitutional foundation by declaring to
be ‘Courts of Record’ under Articles 129
and 215 of the Constitution and,
therefore, the inherent power of the
Supreme Court and the High Court cannot
be taken away by any legislation short of
constitutional amendment. In fact,
Section 22 of the Act lays down that the
provisions of this Act shall be in addition
to and not in derogation of the provisions
of any other law relating to Contempt of
Courts. It necessarily follows that the
constitutional jurisdiction of the Supreme
Court and the High Court under Articles
129 and 215 cannot be curtailed by
anything in the Act of 1971…”
21. In Delhi Judicial Service Association,
Tis Hazari Court, Delhi v. State of Gujarat. a
three-Judge Bench of this Court relied upon
the judgment in the case of Sukhdev Singh
Sodhi (supra) and held that the Supreme
Court had inherent jurisdiction or power to
punish for contempt of inferior courts under
Article 129 of the Constitution of India.
22. A three-Judge Bench of this Court In
Re: Vinay Chandra Mishra discussed the law
28
on this point in detail. The Court while
holding the respondent guilty for contempt
had not only sentenced him to simple
imprisonment for a period of 6 weeks which
was suspended but also suspended his
advocacy for a period of 3 years, relying upon
the powers vested in this Court under Article
129 and 142 of the Constitution of India.
23. We may now refer to certain other
provisions of Constitution, Entry 77, Union
List (List I) of VII Schedule reads as follows:
“77. Constitution, organisation,
jurisdiction and powers of the Supreme
Court (including contempt of such Court),
and the fees taken therein; persons
entitled to practise before the Supreme
Court.”
Entry 14, Concurrent List (List III of VII
Schedule) reads as follows:
“14. Contempt of court, but not
including contempt of the Supreme
Court.”
In exercise of the aforesaid powers the
Contempt of Courts Act, 1971 was enacted
by Parliament. Section 15 deals with
cognizance of criminal contempt and the
opening portion of Section 15 clearly provides
that the Supreme Court or the High Courts
may take action (i) suo motu (ii) on a motion
moved by the Advocate General in case of
High Court or Attorney General/Solicitor
General in the case of Supreme Court and (iii)
on a petition by any other person with the
consent in writing of the Advocate
General/Attorney General/Solicitor General
as the case may be. Section 17 lays down the
29
procedure to be followed when action is taken
on a motion moved by the Advocate
General/Attorney General/Solicitor General
or on the basis of their consent and Section
17(2) does not deal with suo motu contempt
petitions. Section 17(2)(a) of the Contempt of
Courts Act will not apply to suo
motu petitions because that deals with the
proceedings moved on a motion and not suo
motu proceedings. Section 17(2)(b) deals with
contempt initiated on a reference made by
the subordinate court. It is only in these
cases that the notice is required to be issued
along with a copy of the motion. As far as suo
motu petitions are concerned, in these cases
the only requirement of Form-I which has
been framed in pursuance of Rule 6 of the
Rules of this Court is that the brief nature of
the contempt has to be stated therein.
24. The correctness of the judgment
in Vinay Chandra Mishra's case (supra) was
considered by a Constitution Bench of this
Court in Supreme Court Bar
Association v. Union of India. We shall be
referring to certain portions of that judgment
in detail. That being a Constitution Bench
judgment, is binding and all other judgments
which may have taken a view to the contrary
cannot be said to be correct. Before we deal
with the judgment itself, it would be
appropriate to refer to certain provisions of
the Contempt of Courts Act, 1971. Section 2
is the definition clause defining “contempt of
court”, “civil contempt’, “criminal contempt’
and “High Court’. Sections 3 to 5 deal with
innocent publication, fair and accurate
reporting of judicial proceedings and fair
criticism of judicial act, which do not amount
30
to contempt. Sections 10 and 11 deal with
the powers of the High Court to punish for
contempt. Section 12(2) provides that no
court shall impose a sentence in excess of
that specified in sub-section (1) of Section 12.
Section 13 provides that no court should
impose a sentence under the Act for
contempt unless it is satisfied that the
contempt is of such a nature that it
substantially interferes or tends to
substantially interfere with the due course of
justice. It also provides that truth can be
permitted to be raised as a valid defence if the
court is satisfied that the defence has been
raised in the public interest and is a bona
fide defence. Section 14 deals with the
powers of the Supreme Court or the High
Courts to deal with contempt in the face of
the Court. We have already dealt with Section
15 which deals with cognizance of the
criminal contempt other than contempt in
the face of the Court. Section 17 lays down
the procedure after cognizance. It is in the
background of this Act that we have to read
and analyse the judgment of the Constitution
Bench.
25. The Constitution Bench referred to the
provisions of Article 129 of the Constitution
of India and also Entry 77 of List I of Seventh
Schedule and Entry 14 of List III of the
Seventh Schedule and, thereafter, held as
follows:—
“18. The language of Entry 77 of List I
and Entry 14 of List III of the Seventh
Schedule demonstrates that the legislative
power of Parliament and of the State
Legislature extends to legislate with
respect to matters connected with
31
contempt of court by the Supreme Court
or the High Court, subject however, to the
qualification that such legislation cannot
denude, abrogate or nullify, the power of
the Supreme Court to punish for contempt
under Article 129 or vest that power in
some other court.”
(emphasis supplied)
26. This Court referring to Article 142 of
the Constitution held as follows:—
“21. It is, thus, seen that the power of
this Court in respect
of investigation or punishment of any
contempt including contempt of itself, is
expressly made “subject to the provisions
of any law made in this behalf by
Parliament” by Article 142(2). However,
the power to punish for contempt being
inherent in a court of record, it follows that
no act of Parliament can take away
that inherent jurisdiction of the court of
record to punish for contempt and
Parliament's power of legislation on the
subject cannot, therefore, be so exercised
as to stultify the status and dignity of the
Supreme Court and/or the High Courts,
though such a legislation may serve as a
guide for the determination of the nature
of punishment which this Court may
impose in the case of established
contempt. Parliament has not enacted any
law dealing with the powers of the
Supreme Court with regard to
investigation and punishment of contempt
of itself, (we shall refer to Section 15 of the
Contempt of Courts Act, 1971, later on)
and this Court, therefore, exercises the
32
power to investigate and punish for
contempt of itself by virtue of the powers
vested in it under Articles 129 and 142(2)
of the Constitution of India.”
27. This Court then made reference to the
provision of the Contempt of Courts Act,
1926, the Contempt of Courts Act, 1952 and
the Contempt of Courts Act, 1971 and
thereafter held as follows:—
“29. Section 10 of the 1971 Act like
Section 2 of the 1926 Act and Section 4 of
the 1952 Act recognises the power which
a High Court already possesses as a court
of record for punishing for contempt of
itself, which jurisdiction has now the
sanction of the Constitution also by virtue
of Article 215. The Act, however, does not
deal with the powers of the Supreme Court
to try or punish a contemner for
committing contempt of the Supreme
Court or the courts subordinate to it and
the constitutional provision contained in
Articles 142(2) and 129 of the Constitution
alone deal with the subject.”
28. It would also be pertinent to refer to
the following observations of the Constitution
Bench:—
“38. As already noticed, Parliament by
virtue of Entry 77 List I is competent to
enact a law relating to the powers of the
Supreme Court with regard to contempt of
itself and such a law may prescribe the
nature of punishment which may be
imposed on a contemner by virtue of the
provisions of Article 129 read with Article
142(2). Since, no such law has been
enacted by Parliament, the nature of
33
punishment prescribed under the
Contempt of Courts Act, 1971 may act as
a guide for the Supreme Court but the
extent of punishment as prescribed under
that Act can apply only to the High Courts,
because the 1971 Act ipso facto does not
deal with the contempt jurisdiction of the
Supreme Court, except that Section 15 of
the Act prescribes procedural mode for
taking cognizance of criminal contempt by
the Supreme Court also. Section 15,
however, is not a substantive provision
conferring contempt jurisdiction. The
judgment in Sukhdev Singh case (AIR
1954 SC 186 : 1954 SCR 454) as regards
the extent of “maximum punishment”
which can be imposed upon a contemner
must, therefore, be construed as dealing
with the powers of the High Courts only
and not of this Court in that behalf. We
are, therefore, doubtful of the validity of
the argument of the learned Solicitor
General that the extent of
punishment which the Supreme Court can
impose in exercise of its inherent powers
to punish for contempt of itself and/or of
subordinate courts can also be only to the
extent prescribed under the Contempt of
Courts Act, 1971. We, however, do not
express any final opinion on that question
since that issue, strictly speaking, does
not arise for our decision in this case. The
question regarding the restriction or
limitation on the extent of punishment,
which this Court may award while
exercising its contempt jurisdiction may
be decided in a proper case, when so
raised.”
34
xxxxxxxxx
“40…Article 129 cannot take over the
jurisdiction of the Disciplinary Committee
of the Bar Council of the State or the Bar
Council of India to punish an advocate by
suspending his licence, which
punishment can only be imposed after a
finding of “professional misconduct” is
recorded in the manner prescribed under
the Advocates Act and the Rules framed
thereunder.”
xxxxxxxxx
“43. The power of the Supreme Court to
punish for contempt of court, though quite
wide, is yet limited and cannot be
expanded to include the power to
determine whether an advocate is also
guilty of “professional misconduct” in a
summary manner, giving a go-by to the
procedure prescribed under the Advocates
Act. The power to do complete justice
under Article 142 is in a way, corrective
power, which gives preference to equity
over law but it cannot be used to deprive a
professional lawyer of the due process
contained in the Advocates Act, 1961 by
suspending his licence to practice in a
summary manner while dealing with a
case of contempt of court.”
xxxxxxxxx
“57. In a given case, an advocate found
guilty of committing contempt of court
may also be guilty of committing
“professional misconduct”, depending
upon the gravity or nature of his
contumacious conduct, but the two
35
jurisdictions are separate and distinct and
exercisable by different forums by
following separate and distinct
procedures. The power to punish an
advocate by suspending his licence or by
removal of his name from the roll of the
State Bar Council for proven professional
misconduct vests exclusively in the
statutory authorities created under the
Advocates Act, 1961, while the jurisdiction
to punish him for committing contempt of
court vests exclusively in the courts.”
29. A careful analysis of the Constitution
Bench decision leaves no manner of doubt
that Section 15 of the Act is not a substantive
provision conferring contempt jurisdiction.
The Constitution Bench finally left the
question as to whether the maximum
sentence prescribed by the Act binds the
Supreme Court open. The observations made
in Para 38 referred to above clearly indicate
that the Constitution Bench was of the view
that the punishment prescribed in the Act
could only be a guideline and nothing more.
Certain observations made in this judgment
that the Court exceeded its jurisdiction
in Vinay Chandra Mishra's case (supra) by
taking away the right of practice for a period
of 3 years have to be read in the context that
the Apex Court held that Article 129 cannot
take over the jurisdiction of the Bar Council
of the State or the Bar Council of India to
punish an advocate. These observations, in
our opinion have to be read with the other
observations quoted hereinabove which
clearly show that the Constitution Bench
held that “Parliament has not enacted
any law dealing with the powers of the
36
Supreme Court with regard to
investigation and punishment of
contempt of itself ’. The Court also held
that Section 15 is not a substantive provision
conferring contempt jurisdiction and,
therefore, is only a procedural section
especially in so far as suo moto contempts
are concerned. It is thus clear that the
powers of the Supreme Court to punish for
contempt committed of itself is a power not
subject to the provisions of the Act.
Therefore, the only requirement is to follow a
procedure which is just, fair and in
accordance with the rules framed by this
Court.
30. As far as the observations made in the
case of Pallav Sheth v. Custodian10 are
concerned, this Court in that case was only
dealing with the question whether contempt
can be initiated after the limitation
prescribed in the Contempt of Courts Act has
expired and the observations made therein
have to be read in that context only. Relevant
portion of Para 30 of the Pallav Seth's
case (supra) reads as follows:
“30. There can be no doubt that both
this Court and High Courts are Courts of
Records 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
be any legislation indicating the manner
and to the extent that the power 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
37
can be little doubt that such law should
not be regarded as having been validly
enacted. It, however, appears to us that
providing for the quantum of punishment
ow what may or may not be regarded 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.”
The aforesaid finding clearly indicates that
the Court held that any law which stultifies
or abrogates the power of the Supreme Court
under Article 129 of the Constitution or of the
High Courts under Article 215 of the
Constitution, could not be said to be validly
enacted. It however, went on to hold that
providing the quantum of punishment or a
period of limitation would not mean that the
powers of the Court under Article 129 have
been stultified or abrogated. We are not going
into the correctness or otherwise of this
judgment but it is clear that this judgment
only dealt with the issue whether the
Parliament could fix a period of limitation to
initiate the proceedings under the Act.
Without commenting one way or the other
on Pallav Seth's case (supra) it is clear that
the same has not dealt with the powers of
this Court to issue suo motu notice of
contempt.
31. In view of the above discussion we are
clearly of the view that the powers of the
Supreme Court to initiate contempt are not
in any manner limited by the provisions of
the Act. This Court is vested with the
38
constitutional powers to deal with the
contempt. Section 15 is not the source of the
power to issue notice for contempt. It only
provides the procedure in which such
contempt is to be initiated and this procedure
provides that there are three ways of
initiating a contempt - (i) suo motu (ii) on the
motion by the Advocate General/Attorney
General/Solicitor General and (iii) on the
basis of a petition filed by any other person
with the consent in writing of the Advocate
General/Attorney General/Solicitor General.
As far as suo motu petitions are concerned,
there is no requirement for taking consent of
anybody because the Court is exercising its
inherent powers to issue notice for contempt.
This is not only clear from the provisions of
the Act but also clear from the Rules laid
down by this Court.”
18. From the perusal of various judgments of this Court,
including those of the Constitution Benches, it could be seen,
that the source of power of this Court for proceeding for an
action of contempt is under Article 129. It has further been
held, that power of this Court to initiate contempt is not in any
manner limited by the provisions of the Contempt of Courts
Act, 1971. It has been held, that the Court is vested with the
constitutional powers to deal with the contempt and Section
15 is not the source of the power to issue notice for contempt.
39
It only provides the procedure in which such contempt is to be
initiated. It has been held, that insofar as suo motu petitions
are concerned, the Court can very well initiate the proceedings
suo motu on the basis of information received by it. The only
requirement is that the procedure as prescribed in the
judgment of P.N. Duda (supra) has to be followed. In the
present case, the same has undoubtedly been followed. It is
also equally settled, that as far as the suo motu petitions are
concerned, there is no requirement for taking consent of
anybody, including the learned Attorney General because the
Court is exercising its inherent powers to issue notice for
contempt. It is equally well settled, that once the Court takes
cognizance, the matter is purely between the Court and the
contemnor. The only requirement is that, the procedure
followed is required to be just and fair and in accordance with
the principles of natural justice. In the present case, the notice
issued to the alleged contemnors clearly mentions the tweets
on the basis of which the Court is proceeding suo motu. The
alleged contemnor No.1 has also clearly understood the basis
40
on which the Court is proceeding against him as is evident
from the elaborate affidavit-in-reply filed by him.
19. Before we advert to the facts of the present case, let us
examine the legal position as is enunciated in the various
judgments of this Court.
20. In the case of Brahma Prakash Sharma (supra), the
Constitution Bench observed thus:
“It admits of no dispute that the summary
jurisdiction exercised by superior courts
in punishing contempt of their authority
exists for the purpose of preventing
interference with the course of justice and
for maintaining the authority of law as is
administered in the courts. It would be
only repeating what has been said so often
by various Judges that the object of
contempt proceedings is not to afford
protection to Judges personally from
imputations to which they may be exposed
as individuals; it is intended to be a
protection to the public whose interests
would be very much affected if by the act
or conduct of any party, the authority of
the court is lowered and the sense of
confidence which people have in the
administration of justice by it is weakened.
41
21. It could thus be seen, that the Constitution Bench has
held, that the summary jurisdiction exercised by superior
courts in punishing contempt of their authority exists for the
purpose of preventing interference with the course of justice
and for maintaining the authority of law as is administered in
the courts; that the object of contempt proceedings is not to
afford protection to judges personally from imputations to
which they may be exposed as individuals. It has been held,
that it is intended to be a protection to the public whose
interests would be very much affected if by the act or conduct
of any party, the authority of the court is lowered and the sense
of confidence which people have in the administration of
justice by it is weakened. The Constitution Bench further
observed:
“There are indeed innumerable ways by
which attempts can be made to hinder or
obstruct the due administration of justice
in courts. One type of such interference is
found in cases where there is an act or
publication which “amounts to
scandalising the court itself” an
expression which is familiar to English
lawyers since the days of Lord Hardwicke
42
[ Vide In re Read and Huggonson, (1742) 2
Atk. 469, 471] . This scandalising might
manifest itself in various ways but, in
substance, it is an attack on individual
Judges or the court as a whole with or
without reference to particular cases
casting unwarranted and defamatory
aspersions upon the character or ability of
the Judges. Such conduct is punished as
contempt for this reason that it tends to
create distrust in the popular mind and
impair confidence of people in the courts
which are of prime importance to the
litigants in the protection of their rights
and liberties.”
22. The Constitution Bench thus holds, that a publication
which attacks on individual judges or the court as a whole with
or without reference to particular case, casting unwarranted
and defamatory aspersions upon the character or ability of the
judges, would come within the term of scandalizing the Court.
It is held, that such a conduct tends to create distrust in the
popular mind and impair the confidence of the people in the
courts, which are of prime importance to the litigants in the
protection of their rights and liberties. It has been held, that
it is not necessary to prove affirmatively, that there has been
43
an actual interference with the administration of justice by
reason of such defamatory statement and it is enough if it is
likely, or tends in any way, to interfere with the proper
administration of justice.
23. In the case of In re Hira Lal Dixit and two others6
,
the Constitution Bench was considering a leaflet distributed in
the court premises printed and published by the said Hira Lal
Dixit. He was the applicant in one of the writ petitions which
had been filed in the Supreme Court challenging the validity of
U.P. Road Transport Act, 1951. The leaflet though contained
a graphic account of the harassment and indignity said to
have been meted out to the writer by the State Officers and the
then State Minister of Transport in connection with the
cancellation and eventual restoration of his license in respect
of a passenger bus, also contained the following passage:
“The public has full and firm faith in the
Supreme Court, but sources that are in
the know say that the Government acts
with partiality in the matter of
appointment of those Hon'ble Judges as
Ambassadors, Governors, High
6
(1955) 1 SCR 677
44
Commissioners, etc., who give judgments
against Government but this has so far not
made any difference in the firmness and
justice of the Hon'ble Judges”.
It will be relevant to refer to the following
observation of the Constitution Bench in the said case:
“Learned counsel for the respondent, Hira
Lal Dixit, maintained that the passage in
question was perfectly innocuous and only
expressed a laudatory sentiment towards
the Court and that such flattery could not
possibly have the slightest effect on the
minds of the Judges of this august
tribunal. We do not think flattery was the
sole or even the main object with which
this passage was written or with which it
was published at the time when the
hearing of the appeals was in progress. It
no doubt begins with a declaration of
public faith in this Court but this is
immediately followed by other words
connected with the earlier words by the
significant conjunction “but”. The words
that follow are to the effect that sources
that are in the know say that the
Government acts with partiality in the
matter of appointment of those Judges as
Ambassadors, Governors, High
Commissioners, etc., who give judgments
against the Government. The plain
meaning of these words is that the Judges
who decide against the Government do not
get these high appointments. The
necessary implication of these words is
45
that the Judges who decide in favour of the
Government are rewarded by the
Government with these appointments. The
attitude of the Government is thus
depicted surely with a purpose and that
purpose cannot but be to raise in the
minds of the reader a feeling that the
Government, by holding out high hopes of
future employment, encourages the
Judges to give decisions in its favour. This
insinuation is made manifest by the words
that follow, namely, “this has so far not
made any difference in the firmness and
justice of the Hon'ble Judges”. The linking
up of these words with the preceding
words by the conjunction “but” brings into
relief the real significance and true
meaning of the earlier words. The passage
read as a whole clearly amounts to this:
“Government disfavours Judges who give
decisions against it but favours those
Judges with high appointments who
decide in its favour: that although this is
calculated to tempt Judges to give
judgments in favour of the Government it
has so far not made any difference in the
firmness and justice of the Judges”. The
words “so far” are significant. What, we
ask, was the purpose of writing this
passage and what was the object of the
distribution of the leaflet in the Court
premises at a time when the Court was in
the midst of hearing the appeals? Surely,
there was hidden in the offending passage
a warning that although the Judges have
“so far” remained firm and resisted the
temptation of deciding cases in favour of
Government in expectation of getting high
46
appointments, nevertheless, if they decide
in favour of the Government on this
occasion knowledgeable people will know
that they had succumbed to the
temptation and had given judgment in
favour of the Government in expectation of
future reward in the shape of high
appointments of the kind mentioned in the
passage. The object of writing this
paragraph and particularly of publishing
it at the time it was actually done was
quite clearly to affect the minds of the
Judges and to deflect them from the strict
performance of their duties. The offending
passage and the time and place of its
publication certainly tended to hinder or
obstruct the due administration of justice
and is a contempt of Court.”
A perusal of the aforesaid observation of the
Constitution Bench would reveal, that though the said
passage/paragraph begins with a statement, that ‘the public
has full and firm faith in the Supreme Court…’ and ends with,
‘but this has so far not made any difference in the firmness
and justice of the Hon’ble Judges’, the Court found, that if the
statement in the said passage/paragraph was read in entirety
and the timing and the manner in which it was published, it
was clear, that it was done to affect the minds of the judges
and to deflect them from the strict performance of their duties.
47
The Court came to the conclusion, that the offending passage
and the time and place of its publication certainly tended to
hinder or obstruct the due administration of justice and was a
contempt of Court.
While holding him guilty and rejecting his qualified
apology, the Constitution Bench observed thus:
“It is well established, as was said by this
Court in Brahma Prakash Sharma and
Others v. The State of Uttar Pradesh
(supra), that it is not necessary that there
should in fact be an actual interference
with the course of administration of justice
but that it is enough if the offending
publication is likely or if it tends in any
way to interfere with the proper
administration of law. Such insinuations
as are implicit in the passage in question
are derogatory to the dignity of the Court
and are calculated to undermine the
confidence of the people in the integrity of
the Judges. Whether the passage is read
as fulsome flattery of the Judges of this
Court or is read as containing the
insinuations mentioned above or the rest
of the leaflet which contains an attack on
a party to the pending proceedings is
taken separately it is equally
contemptuous of the Court in that the
object of writing it and the time and place
48
of its publication were, or were calculated,
to deflect the Court from performing its
strict duty, either by flattery or by a veiled
threat or warning or by creating prejudice
in its mind against the State. We are,
therefore, clearly of opinion and we hold
that the respondent Hira Lal Dixit by
writing the leaflet and in particular the
passage in question and by publishing it
at the time and place he did has
committed a gross contempt of this Court
and the qualified apology contained in his
affidavit and repeated by him through his
counsel cannot be taken as sufficient
amends for his misconduct.”
A perusal of the aforesaid paragraph would show,
that this Court reiterating the law as laid down in Brahma
Prakash Sharma (supra) held, that it is not necessary that
there should in fact be an actual interference with the course
of administration of justice but that it is enough if the offending
publication is likely or if it tends in any way to interfere with
the proper administration of law. Such insinuations as are
implicit in the passage in question are derogatory to the dignity
of the Court and are calculated to undermine the confidence of
the people in the integrity of the Judges. It is further held, that
49
whether the passage is read as fulsome flattery of the Judges
of this Court or is read as containing the insinuations or the
rest of the leaflet which contains an attack on a party to the
pending proceedings is taken separately, it is equally
contemptuous of the Court inasmuch as, the object of writing
it and the time and place of its publication were calculated to
deflect the Court from performing its strict duty, either by
flattery or by a veiled threat or warning or by creating prejudice
in its mind against the State.
24. This Court in E.M. Sankaran Namboodripad vs. T.
Narayanan Nambiar7 was considering the appeal by the
appellant therein, who was a former Chief Minister, against his
conviction and sentence by the Kerala High Court for contempt
of court. The said appellant had said in the press conference
that the judges are guided and dominated by class hatred,
class interests and class prejudices and where the evidence is
balanced between a well dressed pot-bellied rich man and a
poor-ill-dressed and illiterate person, the judge instinctively
7
(1970) 2 SCC 325
50
favours the former. He had further stated that the election of
judges would be a better arrangement. There were certain
other statements made by him in the press conference. Chief
Justice Hidayatullah observed thus:
“6. The law of contempt stems from the
right of the courts to punish by
imprisonment or fines persons guilty of
words or acts which either obstruct or
tend to obstruct the administration of
justice. This right is exercised in India by
all courts when contempt is committed in
facie curaie and by the superior courts on
their own behalf or on behalf of courts
subordinate to them even if committed
outside the courts. Formerly, it was
regarded as inherent in the powers of a
court of record and now by the
Constitution of India, it is a part of the
powers of the Supreme Court and the
High Courts. There are many kinds of
contempts. The chief forms of contempt
are insult to Judges, attacks upon them,
comment on pending proceedings with a
tendency to prejudice fair trial,
obstruction to officers of courts, witnesses
or the parties, abusing the process of the
court, breach of duty by officers
connected with the court and
scandalising the Judges or the courts.
The last form occurs, generally speaking,
when the conduct of a person tends to
bring the authority and administration of
the law into disrespect or disregard. In
this conduct are included all acts which
51
bring the court into disrepute or
disrespect or which offend its dignity,
affront its majesty or challenge its
authority. Such contempt may be
committed in respect of a Single Judge or
a single court but may, in certain
circumstances, be committed in respect of
the whole of the judiciary or judicial
system. The question is whether in the
circumstances of this case the offence was
committed.”
25. C.J. Hidayatullah observed that, when the conduct of
a person tends to bring the authority and administration of the
law into disrespect or disregard, the same would amount to
scandalising the Court. This conduct includes all acts which
bring the court into disrepute or disrespect or which offend its
dignity, affront its majesty or challenge its authority.
Upholding the conviction, this Court observed thus:
“34. ……. On the other hand, we cannot
ignore the occasion (a press conference),
the belief of the people in his word as a
Chief Minister and the ready ear which
many in his party and outside would give
to him. The mischief that his words would
cause need not be assessed to find him
guilty. The law punishes not only acts
which do in fact interfere with the courts
and administration of justice but also
those which have that tendency, that is to
say, are likely to produce a particular
52
result. Judged from the angle of courts
and administration of justice, there is not
a semblance of doubt in our minds that
the appellants his guilty of contempt of
court……”
26. In the case of C. K. Daphtary & Ors. vs. O. P. Gupta
& Ors.
8 this Court was considering a motion made under
Article 129 of the Constitution by the President of the Bar
Association and some other Advocates. By the said motion,
the petitioners therein had brought to the notice of this Court
the pamphlet printed and published by the respondent No.1
therein, wherein scurrilous aspersions were made against the
judges of this Court. It will be relevant to refer to the following
observations of this Court:
“We are unable to agree with him that a
scurrilous attack on a Judge in respect of
a judgment or past conduct has no
adverse effect on the due administration of
justice. This sort of attack in a country like
ours has the inevitable effect of
undermining the confidence of the public
in the Judiciary. If confidence in the
Judiciary goes, the due administration of
justice definitely suffers.”
8
(1971) 1 SCC 626
53
27. It could thus be seen, that it has been clearly held by
the Constitution Bench, that a scurrilous attack on a judge in
respect of a judgment or past conduct has an adverse effect on
the due administration of justice. The Constitution Bench has
unambiguously held, that this sort of attack in a country like
ours has the inevitable effect of undermining the confidence of
the public in the Judiciary and if the confidence in the
Judiciary goes, the due administration of justice definitely
suffers. In the said case, after holding the contemnor O.P.
Gupta guilty for contempt, this Court refused to accept the
apology tendered by him finding that the apology coupled with
fresh abuses can hardly be taken note of. However, taking a
lenient view, this Court sentenced him to suffer simple
imprisonment for two months.
28. In the case of Baradakanta Mishra (supra), a
disgruntled judicial officer aggrieved by the adverse orders of
the High Court on the administrative side made vilificatory
allegations in a purported appeal to the Governor. Considering
the contention of the appellant, that the allegations made
54
against the judges pertained to the acts of the judge in
administrative capacity and not acting in judicial capacity, the
Constitution Bench observed thus:
“43. We have not been referred to any
comprehensive definition of the expression
“administration of justice”. But
historically, and in the minds of the
people, administration of justice is
exclusively associated with the Courts of
justice constitutionally established. Such
Courts have been established throughout
the land by several statutes. The Presiding
Judge of a Court embodies in himself the
Court, and when engaged in the task of
administering justice is assisted by a
complement of clerks and ministerial
officers whose duty it is to protect and
maintain the records, prepare the writs,
serve the processes etc. The acts in which
they are engaged are acts in aid of
administration of justice by the Presiding
Judge. The power of appointment of clerks
and ministerial officers involves
administrative control by the Presiding
Judge over them and though such control
is described as administrative to
distinguish it from the duties of a judge
sitting in the seat of justice, such control
is exercised by the Judge as a judge in the
course of judicial administration. Judicial
administration is an integrated function of
the Judge and cannot suffer any
55
dissection so far as maintenance of high
standards of rectitude in judicial
administration is concerned. The whole
set up of a court is for the purpose of
administration of justice, and the control
which the Judge exercises over his
assistants has also the object of
maintaining the purity of administration
of justice. These observations apply to all
courts of justice in the land whether they
are regarded as superior or inferior courts
of justice.
44. Courts of justice have, in accordance
with their constitution, to perform
multifarious functions for due
administration of Justice. Any lapse from
the strict standards of rectitude in
performing these functions is bound to
affect administration of justice which is a
term of wider import than mere
adjudication of causes from the seat of
justice.
45. In a country which has a hierarchy of
Courts one above the other, it is usual to
find that the one which is above is
entrusted with disciplinary control over
the one below it. Such control is devised
with a view to ensure that the lower Court
functions properly in its judicial
administration. A Judge can foul judicial
administration by misdemeanours while
engaged in the exercise of the functions of
a judge. It is therefore, as important for the
56
superior Court, to be vigilant about the
conduct and behaviour of the Subordinate
Judge as a judge, as it is to administer the
law, because both functions are essential
for administration of justice. The Judge of
the superior Court in whom this
disciplinary control is vested functions as
much as a judge in such matters as when
he hears and disposes of cases before him.
The procedures may be different. The
place where he sits may be different. But
the powers are exercised in both instances
in due course of judicial administration. If
superior Courts neglect to discipline
subordinate Courts, they will fail in an
essential function of judicial
administration and bring the whole
administration of justice into contempt
and disrepute. The mere function of
adjudication between parties is not the
whole of administration of justice for any
court. It is important to remember that
disciplinary control is vested in the Court
and not in a judge as a private individual.
Control, therefore, is a function as
conducive to proper administration of
justice as laying down the law or doing
justice between the parties.
46. What is commonly described as an
administrative function has been, when
vested in the High Court, consistently
regarded by the statutes as a function in
the administration of justice. Take for
example the Letters Patent for the High
57
Court of Calcutta, Bombay and Madras.
Clause 8 thereof authorises and empowers
the Chief Justice from time to time as
occasion may require “to appoint so many
and such clerks and other ministerial
officers it shall be found necessary for the
administration of justice and the due
execution of all the powers and authorities
granted and committed to the said High
Court by these Letters Patent”. It is
obvious that this authority of the Chief
Justice to appoint clerks and ministerial
officers for the administration of justice
implies an authority to control them in the
interest of administration of justice. This
controlling function which is commonly
described as an administrative function is
designed with the primary object of
securing administration of justice.
Therefore, when the Chief Justice
appoints ministerial officers and assumes
disciplinary control over them, that is a
function which though described as
administrative is really in the course of
administration of justice. Similarly Section
9 of the High Courts Act, 1861 while
conferring on the High Courts several
types of jurisdictions and powers says that
all such jurisdictions and powers are “for
and in relation to the administration of
justice in the Presidency for which it is
established”. Section 106 of the
Government of India Act, 1915 similarly
shows that the several jurisdictions of the
High Court and all their powers and
58
authority are “in relation to the
administration of justice including power to
appoint clerks and other ministerial officers
of the Court”. Section 223 of the
Government of India Act, 1935 preserves
the jurisdictions of the existing High
Courts and the respective powers of the
Judges thereof in relation to the
administration of justice in the Court.
Section 224 of that Act declares that the
High Court shall have superintendence
over all courts in India for the time being
subject to its appellate jurisdiction and
this superintendence, it is now settled,
extends both to administrative and
judicial functions of the subordinate
Courts. When we come to our Constitution
we find that whereas Articles 225 and 227
preserve and to some extent extend these
powers in relation to administration of
justice, Article 235 vests in the High Court
the control over District Courts and courts
subordinate thereto. In the State of West
Bengal v. Nripendra Nath Bagchi [AIR
1966 SC 447 : (1966) 1 SCR 771 : (1968)
1 Lab LJ 270] this Court has pointed out
that control under Article 235 is control
over the conduct and discipline of the
Judges. That is a function which, as we
have already seen, is undoubtedly
connected with administration of justice.
The disciplinary control over the
misdemeanours of the subordinate
judiciary in their judicial administration is
a function which the High Court must
59
exercise in the interest of administration
of justice. It is a function which is
essential for the administration of justice
in the wide connotation it has received
and, therefore, when the High Court
functions in a disciplinary capacity, it only
does so in furtherance of administration of
justice.
47. We thus reach the conclusion that the
courts of justice in a State from the
highest to the lowest are by their
constitution entrusted with functions
directly connected with the administration
of justice, and it is the expectation and
confidence of all those who have or are
likely to have business therein that the
courts perform all their functions on a
high level of rectitude without fear or
favour, affection or ill-will.”
29. It could thus be seen, that the Constitution Bench
holds, that the judges apart from adjudication of causes from
the seat of justice are also required to discharge various
functions including the disciplinary control. It has been held,
that the judge of the superior Court in whom the disciplinary
control is vested functions as much as a Judge in such
matters, as when he hears and disposes of cases before him,
though the procedures may be different or the place where he
60
sits may be different. It has been held, that in both the cases,
the powers are exercised in due course of judicial
administration. It has been held, that if superior Courts
neglect to discipline subordinate courts, they will fail in an
essential function of judicial administration and bring the
whole administration of justice into contempt and disrepute. It
has been held, that mere function of adjudication between
parties is not the whole of administration of justice for any
court.
30. Quoting the opinion of Wilmot C.J. in the case of Rex
v. Almon9, the Constitution Bench observed thus:
“Further explaining what he meant by the
words “authority of the Court”, he
observed “the word ‘authority’ is
frequently used to express both the right
of declaring the law, which is properly
called jurisdiction, and of enforcing
obedience to it, in which sense it is
equivalent to the word power: but by the
word ‘ authority’, I do not mean that
coercive power of the Judges, but the
deference and respect which is paid to
them and their acts, from an opinion of
their justice and integrity”.
9 1765 Wilmot’s Notes of Opinions, 243: 97 ER 94
61
31. The Constitution Bench therefore approves the
opinion of Wilmot C.J., that by the word ‘authority’, it is not
meant as coercive power of the Judges, but the deference and
respect which is paid to them and their acts, from an opinion
of their justice and integrity.
32. It may also be relevant to refer the following
observations of the Constitution Bench in the case of
Baradakanta Mishra (supra):
“49. Scandalization of the Court is a
species of contempt and may take several
forms. A common form is the vilification of
the Judge. When proceedings in contempt
are taken for such vilification the question
which the Court has to ask is whether the
vilification is of the Judge as a judge.
(See Queen v. Gray), [(1900) 2 QB 36, 40]
or it is the vilification of the Judge as an
individual. If the latter the Judge is left to
his private remedies and the Court has no
power to commit for contempt. If the
former, the Court will proceed to exercise
the jurisdiction with scrupulous care and
in cases which are clear and beyond
reasonable doubt. Secondly, the Court will
have also to consider the degree of harm
caused as affecting administration of
justice and, if it is slight and beneath
notice, Courts will not punish for
62
contempt. This salutary practice is
adopted by Section 13 of the Contempt of
Courts Act, 1971. The jurisdiction is not
intended to uphold the personal dignity of
the Judges. That must rest on surer
foundations. Judges rely on their conduct
itself to be its own vindication.
50. But if the attack on the Judge
functioning as a judge substantially
affects administration of justice it becomes
a public mischief punishable for
contempt, and it matters not whether
such an attack is based on what a judge is
alleged to have done in the exercise of his
administrative responsibilities. A judge's
functions may be divisible, but his
integrity and authority are not divisible in
the context of administration of justice. An
unwarranted attack on him for corrupt
administration is as potent in doing public
harm as an attack on his adjudicatory
function.”
33. As rightly pointed out by Shri Dave, the Constitution
Bench holds, that when proceedings in contempt are taken for
vilification of a judge, the question that the Court will ask itself
is, whether the vilification is of the judge as a Judge or it is the
vilification of the judge as an individual. In the latter case, the
judge is left to his private remedies and the Court will have no
63
power to commit for contempt. However, in the former case,
the Court will proceed to exercise the jurisdiction with
scrupulous care and in cases which are clear and beyond
reasonable doubt. It has been held, that the jurisdiction is not
intended to uphold the personal dignity of the Judges.
However, if the attack on the Judge functioning as a Judge
substantially affects administration of justice, it becomes a
public mischief punishable for contempt and it does not matter
whether such an attack is based on what a judge is alleged to
have done in the exercise of his administrative responsibilities.
It has been held, a Judge's functions may be divisible, but his
integrity and authority are not divisible in the context of
administration of justice. It has been held, an unwarranted
attack on him for corrupt administration is as potent in doing
public harm as an attack on his adjudicatory function.
34. The Constitution Bench came to the conclusion, that
a vilificatory criticism of a Judge functioning as a Judge even
in purely administrative or non- adjudicatory matters amounts
to ‘criminal contempt’.
64
35. Upholding the conviction as recorded by the High
Court, taking into consideration the peculiar facts, the
Constitution Bench modified the sentence by directing him to
pay a fine of Rs.1,000/- or in default to suffer simple
imprisonment for three months.
36. Shri Dave has strongly relied on the concurring
opinion of Krishna Iyer, J. in Baradakanta Mishra (supra) in
the following paragraph
“88. Even so, if Judges have frailities — after
all they are human — they need to be
corrected by independent criticism. If the
judicature has serious shortcomings which
demand systemic correction through
socially-oriented reform initiated through
constructive criticism, the contempt power
should not be an interdict. All this, far from
undermining the confidence of the public in
Courts, enhances it and, in the last analysis,
cannot be repressed by indiscriminate resort
to contempt power. Even bodies like the Law
Commission or the Law Institute and
researchers, legal and sociological, may run
“contempt” risks because their professional
work sometimes involves unpleasant
criticism of judges, judicial processes and the
system itself and thus hover perilously
around the periphery of the law if widely
construed. Creative legal journalism and
activist statesmanship for judicial reform
65
cannot be jeopardised by an undefined
apprehension of contempt action.”
37. Relying on the above paragraph, it is his submission,
that the judges also have frailities. According to him, what the
alleged contemnor has done is to bring to the notice of this
Court the serious shortcomings, which demand systemic
correction. According to him, what he has done is far from
undermining the confidence of the public in Court but
enhances it and therefore, cannot be repressed by
indiscriminate resort to contempt power. We will deal with
this submission in the later part of our judgment.
38. Shri Dave has strongly relied on the judgment of this
Court in Re: S. Mulgaokar (supra). It will be relevant to refer
to the following observations in the judgment of Beg, C.J.
“16. The judiciary cannot be immune
from criticism. But, when that criticism is
based on obvious distortion or gross misstatement and made in a manner which
seems designed to lower respect for the
judiciary and destroy public confidence in
it, it cannot be ignored. I am not one of
those who think that an action for
contempt of court, which is discretionary,
should be frequently or lightly taken. But,
at the same time, I do not think that we
66
should abstain from using this weapon
even when its use is needed to correct
standards of behaviour in a grossly and
repeatedly erring quarter. It may be better
in many cases for the judiciary to adopt a
magnanimously charitable attitude even
when utterly uncharitable and unfair
criticism of its operations is made out of
bona fide concern for improvement. But,
when there appears some scheme and
design to bring about results which must
damage confidence in our judicial system
and demoralize Judges of the highest
Court by making malicious attacks,
anyone interested in maintaining high
standards of fearless, impartial, and
unbending justice will feel perturbed. I
sincerely hope that my own undisguised
perturbation at what has been taking
place recently is unnecessary. One may be
able to live in a world of yogic detachment
when unjustified abuses are hurled at
one's self personally, but, when the
question is of injury to an institution, such
as the highest Court of justice in the land,
one cannot overlook its effects upon
national honour and prestige in the comity
of nations. Indeed, it becomes a matter
deserving consideration of all seriousminded people who are interested in
seeing that democracy does not flounder
or fail in our country. If fearless and
impartial courts of justice are the bulwark
of a healthy democracy, confidence in
them cannot be permitted to be impaired
by malicious attacks upon them. However,
as we have not proceeded further in this
case, I do not think that it would be fair to
67
characterize anything written or said in
the Indian Express as really malicious or
ill-intentioned and I do not do so. We have
recorded no decision on that although the
possible constructions on what was
written there have been indicated above.”
39. Learned Chief Justice states, that the judiciary cannot
be immune from criticism. However, when that criticism is
based on obvious distortion or gross mis-statement and made
in a manner which seems designed to lower respect for the
judiciary and destroy public confidence in it, it cannot be
ignored. He opines, that an action for contempt of Court
should not be frequently or lightly taken. But, at the same
time, the Court should not abstain from using this weapon
even when its use is needed to correct standards of behaviour
in a grossly and repeatedly erring quarter. The learned C.J.
further observed, that it may be better in many cases for the
judiciary to adopt a magnanimously charitable attitude, even
when utterly uncharitable and unfair criticism of its operations
is made out of bona fide concern for improvement. However,
when there appears some scheme and design to bring about
68
results which must damage confidence in our judicial system
and demoralize Judges of the highest court by making
malicious attacks, anyone interested in maintaining high
standards of fearless, impartial and unbending justice will feel
perturbed. He opines, that when the question is of injury to an
institution, such as the highest Court of justice in the land,
one cannot overlook its effects upon national honour and
prestige in the comity of nations. He opined, that if fearless
and impartial courts of justice are the bulwark of a healthy
democracy, confidence in them cannot be permitted to be
impaired by malicious attacks upon them.
40. The aforesaid observations are important though the
Court, for different reasons, did not decide to proceed against
the alleged contemnor.
41. It will be relevant to refer to the following observations
of Krishna Iyer, J. in Re: S. Mulgaokar (supra):
“26. What then are the complex of
considerations dissuasive of punitive
action? To be exhaustive is a baffling
project; to be pontifical is to be
impractical; to be flexible is to be realistic.
What, then, are these broad guidelines —
69
not a complete inventory, but
precedentially validated judicial norms?
27. The first rule in this branch of
contempt power is a wise economy of use
by the Court of this branch of its
jurisdiction. The Court will act with
seriousness and severity where justice is
jeopardised by a gross and/or unfounded
attack on the Judges, where the attack is
calculated to obstruct or destroy the
judicial process. The Court is willing to
ignore, by a majestic liberalism, trifling
and venial offences — the dogs may bark,
the caravan will pass. The Court will not
be prompted to act as a result of an easy
irritability. Much rather, it shall take a
noetic look at the conspectus of features
and be guided by a constellation of
constitutional and other considerations
when it chooses to use, or desist from
using, its power of contempt.
28. The second principle must be to
harmonise the constitutional values of free
criticism, the Fourth Estate included, and
the need for a fearless curial process and
its presiding functionary, the Judge. A
happy balance has to be struck, the
benefit of the doubt being given generously
against the Judge, slurring over marginal
deviations but severely proving the
supremacy of the law over pugnacious,
vicious, unrepentant and malignant
contemners, be they the powerful press,
70
gang-up of vested interests, veteran
columnists of Olympian
establishmentarians. Not because the
Judge, the human symbol of a high value,
is personally armoured by a regal privilege
but because “be you — the contemner —
ever so high, the law — the People's
expression of justice — is above you”.
Curial courage overpowers arrogant might
even as judicial benignity forgives errant
or exaggerated critics. Indeed, to criticise
the Judge fairly, albeit fiercely, is no crime
but a necessary right, twice blessed in a
democracy For, it blesseth him that gives
and him that takes. Where freedom of
expression, fairly exercised, subserves
public interest in reasonable measure,
public justice cannot gag it or manacle it,
constitutionally speaking A free people are
the ultimate guarantors of fearless justice.
Such is the cornerstone of our
Constitution; such is the touchstone of
our Contempt Power, oriented on the
confluence of free speech and fair justice
which is the scriptural essence of our
Fundamental Law. Speaking of the social
philosophy and philosophy of law in an
integrated manner as applicable to
contempt of court, there is no conceptual
polarity but a delicate balance, and
judicial “sapience” draws the line. As it
happens, our Constitution-makers
foresaw the need for balancing all these
competing interests. Section 2(1)(c) of the
Contempt of Courts Act, 1971 provides:
71
“ ‘Criminal contempt’ means the
publication (whether by words, spoken
or written, or by signs, or by visible
representations, or otherwise) of any
matter or the doing of any other act
whatsoever which—
(i) scandalises or tends to
scandalise, or lowers or tends to
lower the authority of any court”
This is an extremely wide definition But, it
cannot be read apart from the conspectus
of the constitutional provisions within
which the Founding Fathers of the
Constitution intended all past and future
statutes to have meaning. All laws relating
to contempt of court had, according to the
provisions of Article 19(2), to be
“reasonable restrictions” on the exercise of
the right of free speech. The courts were
given the power—and, indeed, the
responsibility— to harmonise conflicting
aims, interests and values. This is in
sharp contrast to the Phillimore Committee
Report on Contempt of Court in the United
Kingdom [ (1974) bund. S. 794. paras 143-
5, pp. 61-2] which did not recommend the
defence of public interest in contempt
cases.
29. The third principle is to avoid
confusion between personal protection of
a libelled Judge and prevention of
obstruction of public justice and the
community's confidence in that great
process. The former is not contempt, the
72
latter is, although overlapping spaces
abound.
30. Because the law of contempt exists to
protect public confidence in the
administration of justice, the offence will
not be committed by attacks upon the
personal reputation of individual Judges
as such. As Professor Goodhart has put it
[ See Newspapers on Contempt of Court,
(1935) 48 Harv LR 885, 898]:
“Scandalising the court means any
hostile criticism of the Judge as Judge;
any personal attack upon him,
unconnected with the office he holds, is
dealt with under the ordinary rules of
slander and libel”
Similarly, Griffith, C.J. has said in
the Australian case of Nicholls [(1911) 12
CLR 280, 285] that:
“In one sense, no doubt, every
defamatory publication concerning a
Judge may be said to bring him into
contempt as that term is used in the law
of libel, but it does not follow that
everything said of a Judge calculated to
bring him into contempt in that sense
amounts to contempt of court”.
Thus in In the matter of a Special Reference
from the Bahama Islands [1893 AC 138]
the Privy Council advised that a contempt
had not been committed through a
publication in the Nassau Guardian
concerning the resident Chief Justice, who
73
had himself previously criticised local
sanitary conditions. Though couched in
highly sarcastic terms the publication did
not refer to the Chief Justice in his official,
as opposed to personal, capacity. Thus
while it might have been a libel it was not
a contempt.
31. The fourth functional canon which
channels discretionary exercise of the
contempt power is that the fourth estate
which is an indispensable intermediary
between the State and the people and
necessary instrumentality in
strengthening the forces of democracy,
should be given free play within
responsible limits even when the focus of
its critical attention is the court, including
the highest Court.
32. The fifth normative guideline for the
Judges to observe in this jurisdiction is
not to be hypersensitive even where
distortions and criticisms overstep the
limits, but to deflate vulgar denunciation
by dignified bearing, con-descending
indifference and repudiation by judicial
rectitude.
33. The sixth consideration is that, after
evaluating the totality of factors, if the
Court considers the attack on the Judge
or Judges scurrilous, offensive,
intimidatory or malicious beyond
condonable limits, the strong arm of the
74
law must, in the name of public interest
and public justice, strike a blow on him
who challenges the supremacy of the rule
of law by fouling its source and stream.”
42. It could thus be seen, that Justice Krishna Iyer, in his
inimitable style, has observed, that a wise economy of use of
the contempt power by the Court is the first rule. The Court
should act with seriousness and severity, where justice is
jeopardized by a gross and/or unfounded attack on the judges,
where the attack is calculated to obstruct or destroy the
judicial process. Otherwise, the Court should ignore, by a
majestic liberalism, trifling and venial offences. He says the
dogs may bark, the caravan will pass. He further opines, that
the constitutional values of free criticism, including the fourth
estate and the need for a fearless curial process and its
presiding functionary, the judge must be harmonised and a
happy balance has to be struck between the two. He opined,
that confusion between personal protection of a libeled judge
and prevention of obstruction of public justice and the
community's confidence in that great process is to be avoided.
It must be clearly kept in mind because the former is not
75
contempt, the latter is. He further observed, that the Fourth
Estate which is an indispensable intermediary between the
State and the people and necessary instrumentality in
strengthening the forces of democracy, should be given free
play within responsible limits even when the focus of its critical
attention is the court, including the highest Court. He opined,
that the judges should not be hypersensitive even where
distortions and criticisms overstep the limits, but they should
deflate vulgar denunciation by dignified bearing,
condescending indifference and repudiation by judicial
rectitude.
43. He opined, that if the court considers, after evaluating
the totality of factors, the attack on the judge or judges
scurrilous, offensive, intimidatory or malicious beyond
condonable limits, the strong arm of the law must, in the name
of public interest and public justice, strike a blow on him who
challenges the supremacy of the rule of law by fouling its
source and stream.
76
44. Though in the case of P.N. Duda (supra), this Court,
in the facts of the said case, held, that if the speech of the
Minister is read in entirety, it cannot be said that by some
portions, which were selectively taken from different parts of
the speech it could be held that the faith in the administration
of justice was shaken due to the criticism made by the
Minister; it will be relevant to refer to the following observations
of this Court.
“Any criticism about the judicial system or
the judges which hampers the
administration of justice or which erodes
the faith in the objective approach of
judges and brings administration of
justice into ridicule must be prevented.
The contempt of court proceedings arise
out of that attempt. Judgments can be
criticised; the motives of the judges need
not be attributed, it brings the
administration of justice into deep
disrepute. Faith in the administration of
justice is one of the pillars through which
democratic institution functions and
sustains. In the free market place of ideas
criticisms about the judicial system or
judges should be welcomed, so long as
such criticisms do not impair or hamper
the administration of justice. This is how
courts should approach the powers vested
in them as judges to punish a person for
an alleged contempt, be it by taking notice
77
of the matter suo motu or at the behest of
the litigant or a lawyer.
45. In the case of Pritam Pal vs. High Court of Madhya
Pradesh, Jabalpur through Registrar10
, this Court was
considering an appeal filed by an Advocate, who after failing to
get a favourable judgment in his own writ petition had moved
a contempt petition against the judges of the High Court, who
had dismissed his petition, therein casting scurrilous
aspersions against their conduct in the discharge of their
judicial function which bore reflections on their integrity,
honesty and judicial impartiality. The High Court invoking the
jurisdiction under Article 215 of the Constitution had initiated
suo motu proceedings against him and had convicted him for
having committed criminal contempt. While dismissing the
appeal, this Court observed thus:
“60. The maxim “salus populi suprema
lex”, that is “the welfare of the people is the
supreme law” adequately enunciates the
idea of law. This can be achieved only
when justice is administered lawfully,
judicially, without fear or favour and
without being hampered and thwarted,
10 1993 Supp (1) SCC 529
78
and this cannot be effective unless respect
for it is fostered and maintained.
61. To punish an advocate for contempt of
court, no doubt, must be regarded as an
extreme measure, but to preserve the
proceedings of the courts from being
deflected or interfered with, and to keep
the streams of justice pure, serene and
undefiled, it becomes the duty of the
Court, though painful, to punish the
contemnor in order to preserve its dignity.
No one can claim immunity from the
operation of the law of contempt, if his act
or conduct in relation to court or court
proceedings interferes with or is
calculated to obstruct the due course of
justice.”
46. This court held, that the welfare of the people is the
supreme law and this can be achieved only when justice is
administered lawfully, judicially, without fear or favour and
without being hampered and thwarted and this cannot be
effective unless respect for it is fostered and maintained. It has
been held, that to punish an Advocate for Contempt of court
must be regarded as an extreme measure, but to preserve the
proceedings of the Courts from being deflected or interfered
with, and to keep the streams of justice pure, serene and
79
undefiled, it becomes the duty of the Court to punish the
contemnor in order to preserve its dignity.
47. In the case of In re: Vinay Chandra Mishra11, this
Court had taken suo motu cognizance on the basis of the letter
addressed by one of the judges of the Allahabad High Court to
the Acting Chief Justice of the said Court, which was in turn
forwarded to the Chief Justice of India. It was noticed, that the
contemnor had gone to the extent of abusing the learned judge
beyond all limits. This Court observed thus:
“39. The rule of law is the foundation of a
democratic society. The Judiciary is the
guardian of the rule of law. Hence
judiciary is not only the third pillar, but
the central pillar of the democratic State.
In a democracy like ours, where there is a
written Constitution which is above all
individuals and institutions and where the
power of judicial review is vested in the
superior courts, the judiciary has a special
and additional duty to perform, viz., to
oversee that all individuals and
institutions including the executive and
the legislature act within the framework of
not only the law but also the fundamental
law of the land. This duty is apart from the
function of adjudicating the disputes
between the parties which is essential to
peaceful and orderly development of the
11 (1995) 2 SCC 584
80
society. If the judiciary is to perform its
duties and functions effectively and
remain true to the spirit with which they
are sacredly entrusted to it, the dignity
and authority of the courts have to be
respected and protected at all costs.
Otherwise, the very cornerstone of our
constitutional scheme will give way and
with it will disappear the rule of law and
the civilized life in the society. It is for this
purpose that the courts are entrusted with
the extraordinary power of punishing
those who indulge in acts whether inside
or outside the courts, which tend to
undermine their authority and bring them
in disrepute and disrespect by
scandalising them and obstructing them
from discharging their duties without fear
or favour. When the court exercises this
power, it does not do so to vindicate the
dignity and honour of the individual judge
who is personally attacked or scandalised,
but to uphold the majesty of the law and
of the administration of justice. The
foundation of the judiciary is the trust and
the confidence of the people in its ability to
deliver fearless and impartial justice.
When the foundation itself is shaken by
acts which tend to create disaffection and
disrespect for the authority of the court by
creating distrust in its working, the edifice
of the judicial system gets eroded.”
48. This Court holds, that the judiciary is the guardian of
the rule of law and is the central pillar of the democratic State.
It holds, that in our country, the written Constitution is above
81
all individuals and institutions and the judiciary has a special
and additional duty to perform i.e. to oversee that all
individuals and institutions including the executive and the
legislature, act within the framework of not only the law but
also the fundamental law of the land. It further holds, that
this duty is apart from the function of adjudicating the
disputes between the parties, which is essential to peaceful
and orderly development of the society. It holds, that if the
judiciary is to perform its duties and functions effectively and
remain true to the spirit with which they are sacredly entrusted
to it, the dignity and authority of the courts have to be
respected and protected at all costs. It has been held, that
otherwise, the very cornerstone of our constitutional scheme
will give way and with it will disappear the rule of law and the
civilized life in the society. It has been held, for this purpose
that the courts are entrusted with the extra-ordinary power of
punishing those who indulge in acts whether inside or outside
the courts, which tend to undermine their authority and bring
them in disrepute and disrespect by scandalising them and
82
obstructing them from discharging their duties without fear or
favour. It has been held, that when the court exercises this
power, it does not do so to vindicate the dignity and honour of
the individual judge who is personally attacked or scandalised,
but to uphold the majesty of the law and of the administration
of justice. It has been held, the foundation of the judiciary is
the trust and the confidence of the people in its ability to
deliver fearless and impartial justice. When the foundation
itself is shaken by acts which tend to create disaffection and
disrespect for the authority of the court by creating distrust in
its working, the edifice of the judicial system gets eroded.
49. In the case of Dr. D.C. Saxena vs. Hon’ble the Chief
Justice of India12, a writ petition was filed under Article 32
by way of a PIL making scurrilous imputations against the CJI.
This Court observed thus:
“33. A citizen is entitled to bring to the
notice of the public at large the infirmities
from which any institution including the
judiciary suffers from. Indeed, the right to
offer healthy and constructive criticism
which is fair in spirit must be left
unimpaired in the interest of the
12 (1996) 5 SCC 216
83
institution itself. Critics are instruments
of reform but not those actuated by malice
but those who are inspired by public weal.
Bona fide criticism of any system or
institution including the judiciary is aimed
at inducing the administration of the
system or institution to look inward and
improve its public image. Courts, the
instrumentalities of the State are subject
to the Constitution and the laws and are
not above criticism. Healthy and
constructive criticism are tools to augment
its forensic tools for improving its
functions. A harmonious blend and
balanced existence of free speech and
fearless justice counsel that law ought to
be astute to criticism. Constructive public
criticism even if it slightly oversteps its
limits thus has fruitful play in preserving
democratic health of public institutions.
Section 5 of the Act accords protection to
such fair criticism and saves from
contempt of court. The best way to sustain
the dignity and respect for the office of
judge is to deserve respect from the public
at large by fearlessness and objectivity of
the approach to the issues arising for
decision, quality of the judgment,
restraint, dignity and decorum a judge
observes in judicial conduct off and on the
bench and rectitude.”
50. It has been held, that a citizen is entitled to bring to
the notice of the public at large the infirmities from which any
institution including judiciary suffers from. It has been
84
further held, that the right to offer healthy and constructive
criticism, which is fair in spirit must be left unimpaired in the
interest of the institution itself. It has been held, that critics
are instruments of reform but not those actuated by malice but
those who are inspired by public weal. It has also been held,
that constructive public criticism even if it slightly oversteps
its limits thus has fruitful play in preserving democratic health
of public institutions.
51. This Court further observed thus:
“40. Scandalising the court, therefore,
would mean hostile criticism of judges as
judges or judiciary. Any personal attack
upon a judge in connection with the office
he holds is dealt with under law of libel or
slander. Yet defamatory publication
concerning the judge as a judge brings the
court or judges into contempt, a serious
impediment to justice and an inroad on
the majesty of justice. Any caricature of a
judge calculated to lower the dignity of the
court would destroy, undermine or tend to
undermine public confidence in the
administration of justice or the majesty of
justice. It would, therefore, be
scandalising the judge as a judge, in other
words, imputing partiality, corruption,
bias, improper motives to a judge is
scandalisation of the court and would be
contempt of the court. Even imputation of
85
lack of impartiality or fairness to a judge
in the discharge of his official duties
amounts to contempt. The gravamen of
the offence is that of lowering his dignity
or authority or an affront to the majesty of
justice. When the contemnor challenges
the authority of the court, he interferes
with the performance of duties of judge's
office or judicial process or administration
of justice or generation or production of
tendency bringing the judge or judiciary
into contempt. Section 2(c) of the Act,
therefore, defines criminal contempt in
wider articulation that any publication,
whether by words, spoken or written, or by
signs, or by visible representations, or
otherwise of any matter or the doing of any
other act whatsoever which scandalises or
tends to scandalise, or lowers or tends to
lower the authority of any court; or
prejudices, or interferes or tends to
interfere with, the due course of any
judicial proceeding; or interferes or tends
to interfere with, or obstructs or tends to
obstruct, the administration of justice in
any other manner, is a criminal contempt.
Therefore, a tendency to scandalise the
court or tendency to lower the authority of
the court or tendency to interfere with or
tendency to obstruct the administration of
justice in any manner or tendency to
challenge the authority or majesty of
justice, would be a criminal contempt. The
offending act apart, any tendency if it may
lead to or tends to lower the authority of
the court is a criminal contempt. Any
conduct of the contemnor which has the
tendency or produces a tendency to bring
86
the judge or court into contempt or tends
to lower the authority of the court would
also be contempt of the court.”
52. It could thus be seen, that it has been held by this
Court, that hostile criticism of judges as judges or judiciary
would amount to scandalizing the Court. It has been held,
that any personal attack upon a judge in connection with the
office he holds is dealt with under law of libel or slander. Yet
defamatory publication concerning the judge as a judge brings
the court or judges into contempt, a serious impediment to
justice and an inroad on the majesty of justice. This Court
further observed, that any caricature of a judge calculated to
lower the dignity of the court would destroy, undermine or tend
to undermine public confidence in the administration of justice
or the majesty of justice. It has been held, that imputing
partiality, corruption, bias, improper motives to a judge is
scandalisation of the court and would be contempt of the court.
It has been held, that the gravamen of the offence is that of
lowering his dignity or authority or an affront to the majesty of
justice. This Court held, that Section 2(c) of the Act defines
87
‘criminal contempt’ in wider articulation. It has been held, that
a tendency to scandalise the Court or tendency to lower the
authority of the court or tendency to interfere with or tendency
to obstruct the administration of justice in any manner or
tendency to challenge the authority or majesty of justice, would
be a criminal contempt.
53. The Constitution Bench of this Court in the case of
Supreme Court Bar Association vs. Union of India and
another13
, held thus:
“42. The contempt of court is a special
jurisdiction to be exercised sparingly and
with caution whenever an act adversely
affects the administration of justice or
which tends to impede its course or tends
to shake public confidence in the judicial
institutions. This jurisdiction may also be
exercised when the act complained of
adversely affects the majesty of law or
dignity of the courts. The purpose of
contempt jurisdiction is to uphold the
majesty and dignity of the courts of law. It
is an unusual type of jurisdiction
combining “the jury, the judge and the
hangman” and it is so because the court is
not adjudicating upon any claim between
litigating parties. This jurisdiction is not
exercised to protect the dignity of an
13 (1998) 4 SCC 409
88
individual judge but to protect the
administration of justice from being
maligned. In the general interest of the
community it is imperative that the
authority of courts should not be
imperilled and there should be no
unjustifiable interference in the
administration of justice. It is a matter
between the court and the contemner and
third parties cannot intervene. It is
exercised in a summary manner in aid of
the administration of justice, the majesty
of law and the dignity of the courts. No
such act can be permitted which may have
the tendency to shake the public
confidence in the fairness and impartiality
of the administration of justice.”
54. The observations of the Constitution Bench reiterate
the legal position that the contempt jurisdiction, which is a
special jurisdiction has to be exercised sparingly and with
caution, whenever an act adversely affects the administration
of justice or which tends to impede its course or tends to shake
public confidence in the judicial institutions. This jurisdiction
may also be exercised, when the act complained of adversely
affects the majesty of law or dignity of the courts. The purpose
of contempt jurisdiction is to uphold the majesty and dignity
of the courts of law. This jurisdiction is not to be exercised to
89
protect the dignity of an individual judge, but to protect the
administration of justice from being maligned. It is reiterated,
that in the general interest of the community, it is imperative
that the authority of courts should not be imperilled and there
should be no unjustifiable interference in the administration
of justice. It has been reiterated, that no such act can be
permitted, which may have the tendency to shake the public
confidence in the fairness and impartiality of the
administration of justice.
55. In the case of Arundhati Roy, in Re14, this Court
observed thus:
“28. As already held, fair criticism of the
conduct of a Judge, the institution of the
judiciary and its functioning may not
amount to contempt if it is made in good
faith and in public interest. To ascertain
the good faith and the public interest, the
courts have to see all the surrounding
circumstances including the person
responsible for comments, his knowledge
in the field regarding which the comments
are made and the intended purpose
sought to be achieved. All citizens cannot
be permitted to comment upon the
conduct of the courts in the name of fair
14 (2002) 3 SCC 343
90
criticism which, if not checked, would
destroy the institution itself…..”
56. This Court reiterated the position, that fair criticism of
the conduct of a judge, the institution of the judiciary and its
functioning may not amount to contempt, if it is made in good
faith and in public interest. For ascertaining the good faith
and the public interest, the courts have to see all the
surrounding circumstances including the person responsible
for comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be
achieved.
57. It could thus be seen, that it is well settled that a
citizen while exercising right under Article 19(1) is entitled to
make a fair criticism of a judge, judiciary and its functioning.
However, the right under Article 19(1) is subject to restriction
under clause (2) of Article 19. An attempt has to be made to
properly balance the right under Article 19(1) and the
reasonable restriction under clause (2) of Article 19. If a
citizen while exercising his right under Article 19(1) exceeds
the limits and makes a statement, which tends to scandalize
91
the judges and institution of administration of justice, such an
action would come in the ambit of contempt of court. If a
citizen makes a statement which tends to undermine the
dignity and authority of this Court, the same would come in
the ambit of ‘criminal contempt’. When such a statement
tends to shake the public confidence in the judicial
institutions, the same would also come within the ambit of
‘criminal contempt’.
58. No doubt, that when a statement is made against a
judge as an individual, the contempt jurisdiction would not be
available. However, when the statement is made against a
judge as a judge and which has an adverse effect in the
administration of justice, the Court would certainly be entitled
to invoke the contempt jurisdiction. No doubt, that while
exercising the right of fair criticism under Article 19(1), if a
citizen bonafidely exceeds the right in the public interest, this
Court would be slow in exercising the contempt jurisdiction
and show magnanimity. However, when such a statement is
calculated in order to malign the image of judiciary, the Court
92
would not remain a silent spectator. When the authority of
this Court is itself under attack, the Court would not be a
onlooker. The word ‘authority’ as explained by Wilmot, C.J. and
approved by the Constitution Bench of this Court in
Baradakanta Mishra (supra) does not mean the coercive
power of the judges, but a deference and respect which is paid
to them and their acts, from an opinion of their justice and
integrity
59. As submitted by Shri Dave, relying on the observation
made by Krishna Iyer, J, in the case of Baradakanta Mishra
(supra), if a constructive criticism is made in order to enable
systemic correction in the system, the Court would not invoke
the contempt jurisdiction. However, as observed by the same
learned judge in Re: S. Mulgaokar, the Court will act with
seriousness and severity where justice is jeopardized by a gross
and/or unfounded attack on the judges and where the attack
is calculated to obstruct or destroy the judicial
process. Justice Krishna Iyer further observed, that after
evaluating the totality of factors, if the Court considers the
93
attack on the Judge or Judges to be scurrilous, offensive,
intimidatory or malicious beyond condonable limits, the strong
arm of the law must, in the name of public interest and public
justice, strike a blow on him, who challenges the supremacy of
the rule of law by fouling its source and stream.
60. In the light of these guiding principles, let us analyze
the tweets, admittedly, made by the alleged contemnor No.1
which have given rise to this proceeding.
61. After analysing the tweets, the questions that we will
have to pose is, as to whether the said tweets are entitled to
protection under Article 19(1) of the Constitution as a fair
criticism of the system, made in good faith in the larger public
interest or not.
62. We have reproduced both the tweets in the order dated
22.7.2020, which is reproduced in the beginning. The first
part of the first tweet states, that ‘CJI rides a 50 lakh
motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur
without a mask or helmet’. This part of the tweet could be said
to be a criticism made against the CJI as an individual and not
94
against the CJI as CJI. However, the second part of the tweet
states, ‘at a time when he keeps the SC in lockdown mode
denying citizens their fundamental rights to access justice’.
Undisputedly, the said part of the statement criticizes the CJI
in his capacity as the Chief Justice of India i.e. the
Administrative Head of the judiciary of the country. The
impression that the said part of the tweet attempts to give to a
layman is, that the CJI is riding a 50 lakh motorcycle belonging
to a BJP leader at Raj Bhavan, Nagpur without a mask or
helmet, at a time when he has kept the SC in lockdown mode
denying citizens their fundamental right to access justice. The
said tweet is capable of giving an impression to a layman, that
the CJI is enjoying his ride on a motorbike worth Rs.50 lakh
belonging to a BJP leader, at a time when he has kept the
Supreme Court in lockdown mode denying citizens their
fundamental right to access justice.
63. Firstly, it would be noted, that the date on which the
CJI is alleged to have taken a ride on a motorbike is during the
period when the Supreme Court was on a summer vacation.
95
In any case, even during the said period, the vacation Benches
of the Court were regularly functioning. The impression that
the said tweet intends to give is that the CJI as the head of the
Indian judiciary has kept the Supreme Court in lockdown
mode, thereby denying citizens their fundamental right to
access justice. In any case, the statement, that the Supreme
Court is in lockdown is factually incorrect even to the
knowledge of the alleged contemnor No.1. It is a common
knowledge, that on account of COVID-19 pandemic the
physical functioning of the Court was required to be
suspended. This was in order to avoid mass gathering in the
Supreme Court and to prevent outbreak of pandemic.
However, immediately after suspension of physical hearing,
the Court started functioning through video conferencing.
From 23.3.2020 till 4.8.2020, various benches of the Court
have been sitting regularly and discharging their duties
through video conferencing. The total number of sittings that
the various benches had from 23.3.2020 till 4.8.2020 is 879.
During this period, the Court has heard 12748 matters. In the
96
said period, this Court has dealt with 686 writ petitions filed
under Article 32 of the Constitution of India.
64. It can thus be clearly seen, that the statement, that
the CJI has kept the SC in lockdown mode denying citizens
their fundamental rights to access justice is patently false. It
may not be out of place to mention, that the alleged contemnor
No.1 has himself appeared on various occasions in number of
matters through video conferencing. Not only that, but even
in his personal capacity the alleged contemnor No.1 has taken
recourse to the access of justice by approaching this Court in
a petition under Article 32 of the Constitution being Writ
Petition (Criminal) No.131 of 2020, challenging the First
Information Report lodged against him at Bhaktinagar Police
Station, Rajkot, Gujarat, wherein this Court had passed the
following order on 1.5.2020:
“The Court is convened through video
conferencing.
Issue notice.
In the meantime, no coercive action be
taken against the petitioner in First
Information Report No.11209052200180
97
lodged on 12th April, 2020 under Sections
295A/505(1)(b), 34 and 120B of the IPC
registered at the Police Station
Bhaktinagar, Rajkot, Gujarat.”
In this premise, making such wild allegation thereby
giving an impression, that the CJI is enjoying riding an
expensive bike, while he keeps the SC in lockdown mode and
thereby denying citizens their fundamental right to access
justice, is undoubtedly false, malicious and scandalous. It has
the tendency to shake the confidence of the public at large in
the institution of judiciary and the institution of the CJI and
undermining the dignity and authority of the administration of
justice. We are unable to accept the contention of the alleged
contemnor No.1, that the said statement was a bona fide
criticism made by him on account of his anguish of non
functioning of the courts physically. His contention, that on
account of non-physical functioning of the Supreme Court for
the last more than three months, the fundamental rights of
citizens, such as those in detention, those destitute and poor,
and others facing serious and urgent grievances were not being
addressed or taken up for redressal, as stated herein above, is
98
false to his own knowledge. He has made such a scandalous
and malicious statement having himself availed the right of an
access to justice during the said period, not only as a lawyer
but also as a litigant.
65. Insofar as the second tweet is concerned, even
according to the alleged contemnor No.1, the tweet is in three
distinct parts. According to him, the first part of the tweet
contains his considered opinion, that democracy has been
substantially destroyed in India during the last six years. The
second part is his opinion, that the Supreme Court has played
a substantial role in allowing the destruction of the democracy
and the third part is his opinion regarding the role of the last
4 Chief Justice’s in particular in allowing it.
66. We are not concerned with the first part of the tweet
since it is not concerned with this Court. However, even on his
own admission, he has expressed his opinion, that the
Supreme Court has played a substantial role in allowing the
destruction of democracy and further admitted, that the third
99
part is regarding the role of last four Chief Justices in
particular, in allowing it.
67. It is common knowledge, that the emergency era has
been considered as the blackest era in the history of Indian
democracy. The impression which the said tweet tends to give
to an ordinary citizen is, that when the historians in future
look back, the impression they will get is, that in the last six
years the democracy has been destroyed in India without even
a formal emergency and that the Supreme Court had a
particular role in the said destruction and the last four Chief
Justices of India had more particular role in the said
destruction.
68. There cannot be any manner of doubt, that the said
tweet is directed against the Supreme Court, tending to give an
impression, that the Supreme Court has a particular role in
the destruction of democracy in the last six years and the last
four CJIs had a more particular role in the same. It is clear,
that the criticism is against the entire Supreme Court and the
last four CJIs. The criticism is not against a particular judge
100
but the institution of the Supreme Court and the institution of
the Chief Justice of India. The impression that the said tweet
tends to convey is that the judges who have presided in the
Supreme Court in the period of last six years have particular
role in the destruction of Indian democracy and the last four
CJIs had a more particular role in it.
69. As discussed herein above, while considering as to
whether the said criticism was made in a good faith or not the
attending circumstances are also required to be taken into
consideration. One of the attending circumstances is the
extent of publication. The publication by tweet reaches
millions of people and as such, such a huge extent of
publication would also be one of the factors that requires to be
taken into consideration while considering the question of good
faith.
70. Another circumstance is, the person who makes such
a statement. In the own admission, the alleged contemnor
No.1 has been practicing for last 30 years in the Supreme
Court and the Delhi High Court and has consistently taken up
101
many issues of public interest concerning the health of our
democracy and its institutions and in particular the
functioning of our judiciary and especially its accountability.
The alleged contemnor being part of the institution of
administration of justice, instead of protecting the majesty of
law has indulged into an act, which tends to bring disrepute to
the institution of administration of justice. The alleged
contemnor No.1 is expected to act as a responsible officer of
this Court. The scurrilous allegations, which are malicious in
nature and have the tendency to scandalize the Court are not
expected from a person, who is a lawyer of 30 years standing.
In our considered view, it cannot be said that the above tweets
can be said to be a fair criticism of the functioning of the
judiciary, made bona fide in the public interest.
71. As held by this Court in earlier judgments, to which
we have referred herein above, the Indian judiciary is not only
one of pillars on which the Indian democracy stands but is the
central pillar. The Indian Constitutional democracy stands on
the bedrock of rule of law. The trust, faith and confidence of
102
the citizens of the country in the judicial system is sine qua
non for existence of rule of law. An attempt to shake the very
foundation of constitutional democracy has to be dealt with an
iron hand. The tweet has the effect of destabilising the very
foundation of this important pillar of the Indian democracy.
The tweet clearly tends to give an impression, that the
Supreme Court, which is a highest constitutional court in the
country, has in the last six years played a vital role in
destruction of the Indian democracy. There is no manner of
doubt, that the tweet tends to shake the public confidence in
the institution of judiciary. We do not want to go into the
truthfulness or otherwise of the first part of the tweet,
inasmuch as we do not want to convert this proceeding into a
platform for political debate. We are only concerned with the
damage that is sought to be done to the institution of
administration of justice. In our considered view, the said
tweet undermines the dignity and authority of the institution
of the Supreme Court of India and the CJI and directly affronts
the majesty of law.
103
72. Indian judiciary is considered by the citizens in the
country with the highest esteem. The judiciary is considered
as a last hope when a citizen fails to get justice anywhere. The
Supreme Court is the epitome of the Indian judiciary. An
attack on the Supreme Court does not only have the effect of
tending an ordinary litigant of losing the confidence in the
Supreme Court but also may tend to lose the confidence in the
mind of other judges in the country in its highest court. A
possibility of the other judges getting an impression that they
may not stand protected from malicious attacks, when the
Supreme Court has failed to protect itself from malicious
insinuations, cannot be ruled out. As such, in order to protect
the larger public interest, such attempts of attack on the
highest judiciary of the country should be dealt with firmly. No
doubt, that the Court is required to be magnanimous, when
criticism is made of the judges or of the institution of
administration of justice. However, such magnanimity cannot
be stretched to such an extent, which may amount to
weakness in dealing with a malicious, scurrilous, calculated
104
attack on the very foundation of the institution of the judiciary
and thereby damaging the very foundation of the democracy.
73. The Indian Constitution has given a special role to the
constitutional courts of this country. The Supreme Court is a
protector of the fundamental rights of the citizens, as also is
endowed with a duty to keep the other pillars of democracy i.e.
the Executive and the Legislature, within the constitutional
bounds. If an attack is made to shake the confidence that the
public at large has in the institution of judiciary, such an
attack has to be dealt with firmly. No doubt, that it may be
better in many cases for the judiciary to adopt a
magnanimously charitable attitude even when utterly
uncharitable and unfair criticism of its operations is made out
of bona fide concern for improvement. However, when there
appears some scheme and design to bring about results which
have the tendency of damaging the confidence in our judicial
system and demoralize the Judges of the highest court by
making malicious attacks, those interested in maintaining
high standards of fearless, impartial and unbending justice
105
will have to stand firmly. If such an attack is not dealt with,
with requisite degree of firmness, it may affect the national
honour and prestige in the comity of nations. Fearless and
impartial courts of justice are the bulwark of a healthy
democracy and the confidence in them cannot be permitted to
be impaired by malicious attacks upon them. As observed by
Justice Krishna Iyer in the case of Re: S. Mulgaokar (supra),
on which judgment, Shri Dave has strongly relied on, if the
Court considers the attack on the judge or judges scurrilous,
offensive, intimidatory or malicious beyond condonable limits,
the strong arm of the law must, in the name of public interest
and public justice, strike a blow on him who challenges the
supremacy of the rule of law by fouling its source and stream.
74. The summary jurisdiction of this Court is required to
be exercised not to vindicate the dignity and honour of the
individual judge, who is personally attacked or scandalised,
but to uphold the majesty of the law and of the administration
of justice. The foundation of the judiciary is the trust and the
confidence of the people in its ability to deliver fearless and
106
impartial justice. When the foundation itself is sought to be
shaken by acts which tend to create disaffection and disrespect
for the authority of the court by creating distrust in its
working, the edifice of the judicial system gets eroded. The
scurrilous/malicious attacks by the alleged contemnor No.1
are not only against one or two judges but the entire Supreme
Court in its functioning of the last six years. Such an attack
which tends to create disaffection and disrespect for the
authority of this Court cannot be ignored. Recently, the
Supreme Court in the cases of National Lawyers Campaign
for Judical Transparency and Reforms and others vs.
Union of India and others15 and Re: Vijay Kurle & Ors
(supra) has suo motu taken action against Advocates who had
made scandalous allegations against the individual
judge/judges. Here the alleged contemnor has attempted to
scandalise the entire institution of the Supreme Court. We
may gainfully refer to the observations of Justice Wilmot in R.
v. Almon16 made as early as in 1765:
15 2019 SCC Online SC 411
16 1765 Wilmot’s Notes 243 : 97 ER 94
107
“…. And whenever men’s allegiance to the
law is so fundamentally shaken, it is the
most fatal and most dangerous
obstruction of justice, and, in my opinion,
calls out for a more rapid and immediate
redress than any other obstruction
whatsoever; not for the sake of the Judges,
as private individuals, but because they
are the channels by which the King’s
justice is conveyed to the people.”
75. The tweets which are based on the distorted facts, in
our considered view, amount to committing of ‘criminal
contempt’.
76. Insofar as the alleged contemnor No.2 is concerned,
we accept the explanation given by it, that it is only an
intermediary and that it does not have any control on what the
users post on the platform. It has also showed bona fides
immediately after the cognizance was taken by this Court as it
has suspended both the tweets. We, therefore, discharge the
notice issued to the alleged contemnor No.2.
108
77. In the result, we hold alleged contemnor No.1 – Mr.
Prashant Bhushan guilty of having committed criminal
contempt of this Court.
......................J.
[ARUN MISHRA]
......................J.
[B.R. GAVAI]
……......................J.
[KRISHNA MURARI]
NEW DELHI;
AUGUST 14, 2020
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
IN RE:
PRASHANT BHUSHAN & ANR. …. ALLEGED CONTEMNOR(S)
JUDGMENT
1. A petition came to be filed in this Court by one Mahek
Maheshwari bringing to the notice of this Court, a tweet made
by Mr. Prashant Bhushan, Advocate, alleged contemnor No.1
praying therein to initiate contempt proceedings against the
alleged contemnors for wilfully and deliberately using
hate/scandalous speech against this Court and entire judicial
system. The Registry placed the said petition on the
Administrative side of this Court seeking direction as to
whether it should be listed for hearing or not, as consent of the
learned Attorney General for India had not been obtained by
the said Shri Maheshwari to file the said petition. After
2
examining the matter on the Administrative side, this court on
the administrative side directed the matter to be listed on the
Judicial side to pass appropriate orders. Accordingly, the
petition was placed before us on 22.7.2020. On the said date,
we passed the following order:
“This petition was placed before us on the
administrative side whether it should be
listed for hearing or not as permission of
the Attorney General for India has not
been obtained by the petitioner to file this
petition. After examining the matter on
administrative side, we have directed the
matter to be listed before the Court to pass
appropriate orders. We have gone through
the petition. We find that the tweet in
question, made against the CJI, is to the
following effect :-
“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!”
Apart from that, another tweet has been
published today in the Times of India
which was made by Shri Prashant
Bhushan on June 27, 2020, when he
tweeted, “When historians in future look
back at the last 6 years to see how
3
democracy has been destroyed in India
even without a formal Emergency, they
will particularly mark the role of the
Supreme Court in this destruction, &
more particularly the role of the last 4
CJIs.”
We are, prima facie, of the view that
the aforesaid statements on Twitter have
brought the administration of justice in
disrepute and are capable of undermining
the dignity and authority of the Institution
of Supreme Court in general and the office
of the Chief Justice of India in particular,
in the eyes of public at large.
We take suo motu cognizance of the
aforesaid tweet also apart from the tweet
quoted above and suo motu register the
proceedings.
We issue notice to the Attorney
General for India and to Mr. Prashant
Bhushan, Advocate also.
Shri Sajan Poovayya, learned senior
counsel has appeared along with Mr.
Priyadarshi Banerjee and Mr. Manu
Kulkarni, learned counsel appearing on
behalf of the Twitter, and submitted that
the Twitter Inc., California , USA is the
correct description on which the tweets
were made by Mr. Prashant Bhushan. Let
the reply be also filed by them.
List on 05.08.2020.”
4
2. In response to the notice issued by this Court, both
the alleged contemnors have filed their respective affidavit-inreply. Mr. Prashant Bhushan, the alleged contemnor No.1, has
filed a detailed affidavit running into 134 pages, which along
with the Annexures runs into 463 pages.
3. The main contention of the alleged contemnor No.1 is,
that insofar as the first tweet is concerned, it was made
primarily to underline his anguish at the non-physical
functioning of the Supreme Court for the last more than three
months, as a result of which fundamental rights of citizens,
such as those in detention, those destitute and poor, and
others facing serious and urgent grievances were not being
addressed or taken up for redressal. It is contended, that it
was made to highlight the incongruity of the situation where
the CJI on one hand keeps the court virtually in lockdown due
to COVID fears, with hardly any cases being heard and those
heard, also by an unsatisfactory process through video
conferencing and on the other hand is seen in a public place
with several people around him without a mask. It is his
5
submission, that expressing his anguish by highlighting the
said incongruity and the attendant facts, the first tweet cannot
be said to constitute contempt of court. It is submitted, that if
it is regarded as a contempt, it would stifle free speech and
would constitute an unreasonable restriction on the right of a
citizen under Article l9(1)(a) of the Constitution.
4. Insofar as the second tweet dated 27.6.2020 is
concerned, it is his submission, that the said tweet has three
distinct elements, each of which is his bona fide opinion about
the state of affairs in the country in the past six years and the
role of the Supreme Court and in particular the role of the last
4 CJIs. It is submitted, that the first part of the tweet contains
his considered opinion, that democracy has been substantially
destroyed in India during the last six years. The second part is
his opinion, that the Supreme Court has played a substantial
role in allowing the destruction of the democracy and the third
part is his opinion regarding the role of the last 4 Chief Justices
in particular in allowing it. It is his submission, that such an
expression of opinion, however outspoken, disagreeable or
6
however unpalatable to some, cannot constitute contempt of
court. It is his contention, that it is the essence of a democracy
that all institutions, including the judiciary, function for the
citizens and the people of this country and they have every
right to freely and fairly discuss the state of affairs of an
institution and build public opinion in order to reform the
institution.
5. It is further contended, that the Chief Justice is not
the Supreme Court and that raising issues of concern
regarding the manner in which a CJI conducts himself during
court vacations, or raising issues of grave concern regarding
the manner in which four CJIs have used, or failed to use, their
powers as “Master of the Roster" to allow the spread of
authoritarianism, majoritarianism, stifling of dissent,
widespread political incarceration and so on, cannot and does
not amount to "scandalising or lowering the authority of the
court”. It is submitted, that the Court cannot be equated with
a Chief Justice, or even a succession of four CJIs. It is
submitted, that to bona fide critique the actions of a CJI, or a
7
succession of CJIs, cannot and does not scandalise the court,
nor does it lower the authority of the Court. It is his
submission, that to assume or suggest that the CJI is the
Supreme Court and the Supreme Court is the CJI is to
undermine the institution of the Supreme Court of India.
6. Insofar as alleged contemnor No.2, Twitter Inc. is
concerned, in the affidavit-in-reply filed on its behalf it is
stated, that it is a global website providing micro-blogging
platform for self-expression of its users and to communicate.
It is further stated, that the alleged contemnor No.2 has not
authored or published the tweets in question and the same
have been authored and published by alleged contemnor No.1.
It is also submitted, that it is merely an ‘intermediary’ within
the meaning as provided under the Information Technology
Act, 2000 and thus is not the author or originator of the tweets
posted on its platform. In this background it has been
submitted, that the alleged contemnor No.2 has no editorial
control on the tweets and merely acts as a display board. It is
also submitted, that under section 79 of the Information
8
Technology Act, 2000 the alleged contemnor no.2 has been
provided safe harbour as an intermediary for any objectional
posts on its platform posted by its users. It is lastly submitted,
that to show its bonafides, the alleged contemnor No.2 after
the order dated 22.07.2020 of this court, taking cognizance of
the impugned tweets, blocked the access to the said tweets and
disabled the same. In this premise it has been submitted, that
alleged contemnor No.2 be discharged from the present
proceedings.
7. We have extensively heard Shri Dushyant Dave,
learned Senior Counsel appearing on behalf of the alleged
Contemnor No.1 and Shri Sajan Poovayya, learned Senior
Counsel appearing on behalf of the alleged contemnor No.2.
8. Shri Dave, learned Senior Counsel appearing on behalf
of the alleged contemnor No.1 raised a preliminary objection.
He submitted, that since the present proceedings are initiated
on the basis of the petition filed by Mr. Maheshwari, the same
cannot be treated as a suo motu contempt petition. He
submitted, that unless there was a consent of the learned
9
Attorney General for India, the proceedings could not have
been initiated on the basis of complaint of Mr. Maheshwari.
9. Relying on the definition of ‘criminal contempt’ as is
found in the Contempt of Courts Act, 1971, Shri Dushyant
Dave, learned Senior Counsel, submits, that the order issuing
notice does not state that any act of the alleged contemnor No.1
scandalizes or tends to scandalize or lowers or tends to lower
the authority of any Court. Neither does it mention, that any
of his act prejudices or interferes or tends to interfere with, due
course of any judicial proceeding or interferes or tends to
interfere with, or obstructs or tends to obstruct, the
administration of justice in any manner. He therefore submits,
that, as such, the proceedings initiated by this Court cannot
continue.
10. Relying on the judgment of the Constitution Bench of
this Court in Brahma Prakash Sharma and Others vs. The
State of Uttar Pradesh1, Shri Dave submits, that what
should weigh with the Court is that, whether the reflection on
1 1953 SCR 1169
10
the conduct or character of a judge is within the limits of fair
and reasonable criticism and whether it is mere libel or
defamation of the Judge. It is submitted, that if it is a mere
defamatory attack on the judge and is not calculated to
interfere with the due course of justice or the proper
administration of the law by such court, it is not proper to
proceed by way of contempt. He would submit, that in the
present case, at the most, it can be said that the allegations in
the tweets are only against the present CJI and the past three
CJIs and that too, in their individual capacity and as such, in
no way they can be said to be calculated to interfere with the
due course of justice or the proper administration of the law
by Court and therefore, it is not proper to continue with the
present contempt proceedings.
11. He submits, that in such a situation, the question is
not to be determined solely with reference to the language or
contents of the statement made. All the surrounding facts and
circumstances under which the statement was made and the
degree of publicity which was given to it would be relevant
11
circumstances. He submits, that insofar as the first tweet is
concerned, the said was an expression of anguish by the
alleged contemnor No.1 on account of non-functioning of the
physical courts for the last more than three months and
thereby, denying the right to justice to the litigants. Insofar as
the second tweet is concerned, in the submission of Shri Dave,
that the said was an expression of his opinion that on account
of the action or inaction of the Four CJIs that contributed to
the destruction of democracy in the country, without a formal
emergency.
12. Relying on the Constitution Bench judgment of this
Court in the case of Baradakanta Mishra vs The Registrar
Of Orissa High Court & another2, learned Senior Counsel
submits, that when proceedings in contempt are taken for
vilification of the judge, the question which the court has to
ask is whether the vilification is of the judge as a judge or it is
the vilification of the judge as an individual. He submits, that
if the vilification of the judge is as an individual, then he is left
2
(1974) 1 SCC 374
12
to his private remedies and the Court has no power to punish
for contempt. It is submitted, that however, in the former case,
the Court will proceed to exercise the jurisdiction with
scrupulous care and in cases which are clear and beyond
reasonable doubt. It is submitted, in the present case, the
vilification, if any, is against the CJI as an individual and not
as a CJI of the Supreme Court and as such, the proceedings of
the Court would not be tenable.
13. Relying on the observations made by Justice Krishna
Iyer in Re: S. Mulgaokar3, learned Senior Counsel submits,
that the court should be willing to ignore, by a majestic
liberalism, trifling and venial offences. It is submitted, that the
Court will not be prompted to act as a result of an easy
irritability. Rather, it shall take a noetic look at the
conspectus of features and be guided by a constellation of
constitutional and other considerations when it chooses to
use, or desist from using, its power of contempt. He submits,
that this Court had held, that to criticize the judge fairly, albeit
3
(1978) 3 SCC 339
13
fiercely, is no crime but a necessary right, twice blessed in a
democracy. He submits, that where freedom of expression,
fairly exercised, subserves public interest in reasonable
measure, public justice cannot gag it or manacle it.
14. Shri Dave, learned Senior Counsel, submits, that in
the case of P.N. Duda vs. P. Shiv Shanker & Others4, the
then Minister of Law, Justice and Company Affairs P. Shiv
Shankar had made a speech making fierce allegations to the
effect, that the Supreme Court was composed of elements from
the elite class, that because they had their ‘unconcealed
sympathy for the haves’ they interpreted the expression
‘compensation’ in the manner they did. He submits, that the
Supreme Court held, that the said was an expression of
opinion about an institutional pattern. It is submitted, that
even in spite of such serious allegations made, the Court found
that the case of proceeding for contempt was not made out.
15. Lastly, Shri Dave submits, that taking into
consideration the fact, that the alleged contemnor No.1 in his
4
(1988) 3 SCC 167
14
practice at the Supreme Court and the Delhi High Court had
consistently taken up many issues of public interest
concerning the health of democracy and its institutions and in
particular the functioning of the judiciary and especially its
accountability, this Court should not proceed against him.
16. The legal position is no more res integra.
17. Insofar as the contention of the learned Senior
Counsel appearing for the alleged contemnor No.1, that in the
present case, the Court could not have initiated suo motu
proceedings and could have proceeded on the petition filed by
Mr. Mahek Maheshwari only after the consent was obtained
from the learned Attorney General for India is concerned, very
recently, a Bench of this Court has considered identical
submissions in the case of Re: Vijay Kurle & Ors.5. The
Bench has considered various judgments of this Court on the
issue, in detail. Therefore, it will be apposite to refer to the
following paragraphs of the judgment wherein the earlier law
has been discussed in extenso:
5 2020 SCC Online SC 407 (Suo Motu Contempt Petition (Criminal) No.2 of 2019
15
“Powers of the Supreme Court
7. Before we deal with the objections
individually, we need to understand what are
the powers of the Supreme Court of India in
relation to dealing with contempt of the
Supreme Court in the light of Articles 129
and 142 of the Constitution of India when
read in conjunction with the Contempt of
Courts Act, 1971. According to the alleged
contemnors, the Contempt of Courts Act is
the final word in the matter and if the
procedure prescribed under the Contempt of
Courts Act has not been followed then the
proceedings have to be dropped. On the other
hand, Shri Sidharth Luthra, learned amicus
curiae while making reference to a large
number of decisions contends that the
Supreme Court being a Court of Record is not
bound by the provisions of the Contempt of
Courts Act. The only requirement is that the
procedure followed is just and fair and in
accordance with the principles of natural
justice.
Article 129 of the Constitution of India
reads as follows:
“129. Supreme Court to be a court of
record.- 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.”
A bare reading of Article 129 clearly shows
that this Court being a Court of Record shall
have all the powers of such a Court of Record
including the power to punish for contempt
of itself. This is a constitutional power which
cannot be taken away or in any manner
abridged by statute.
16
Article 142 of the Constitution of India
reads as follows:
“142. Enforcement of decrees and
orders of Supreme Court and orders as
to discovery, etc.- (1) The Supreme Court
in the exercise of its jurisdiction may pass
such decree or make such order as is
necessary for doing complete justice in
any cause or matter pending before it, and
any decree so passed or order so made
shall be enforceable throughout the
territory of India in such manner as may
be prescribed by or under any law made
by Parliament and, until provision in that
behalf is so made, in such manner as the
President may by order prescribe.
(2) Subject to the provisions of any law
made in this behalf by Parliament, the
Supreme Court shall, as respects the
whole of the territory of India, have all and
every power to make any order for the
purpose of securing the attendance of any
person, the discovery or production of any
documents, or the investigation or
punishment of any contempt of itself.”
Article 142 also provides that this Court
can punish any person for contempt of itself
but this power is subject to the provisions of
any law made by parliament. A comparison
of the provisions of Article 129 and clause (2)
of Article 142 clearly shows that whereas the
founding fathers felt that the powers under
clause 92) of Article 142 could be subject to
any law made by parliament, there is no such
restriction as far as Article 129 is concerned.
The power under clause (2) of Article 142 is
not the primary source of power of Court of
17
Record which is Article 129 and there is no
such restriction in Article 129. Samaraditya
Pal in the Law of Contempt has very
succinctly stated the legal position as follows:
“Although the law of contempt is largely
governed by the 1971 Act, it is now settled
law in India that the High Courts and the
Supreme Court derive their jurisdiction
and power from Articles 215 and 129 of
the Constitution. This situation results in
giving scope for “judicial self-dealing”.
The High Courts also enjoy similar powers
like the Supreme Court under Article 215 of
the Constitution. The main argument of the
alleged contemnors is that notice should
have been issued in terms of the provisions
of the Contempt of Courts Act and any
violation of the Contempt of Courts Act would
vitiate the entire proceedings. We do not
accept this argument. In view of the fact that
the power to punish for contempt of itself is
a constitutional power vested in this Court,
such power cannot be abridged or taken
away even by legislative enactment.
8. To appreciate the rival contention, we
shall have to make reference to a number of
decisions relied upon by both the parties.
The first judgment on the point is Sukhdev
Singh Sodhi v. The Chief Justice and Judges
of the Pepsu High Court. It would be
pertinent to mention that the said judgment
was given in the context of the Contempt of
Courts Act, 1952. The issue before this Court
in the said case was whether contempt
proceedings could said to be the proceedings
under the Criminal Procedure Code, 1973
(Cr.PC) and the Supreme Court had the
18
power to transfer the proceedings from one
court to another under the Cr.PC. Rejecting
the prayer for transfer, this Court held as
follows:—
“….We hold therefore that the Code of
Criminal Procedure does not apply in
matters of contempt triable by the High
Court. The High Court can deal with it
summarily and adopt its own procedure.
All that is necessary is that the procedure
is fair and that the contemner is made
aware of the charge against him and given
a fair and reasonable opportunity to
defend himself. This rule was laid down by
the Privy Council in In re Pollard (L.R. 2
P.C. 106 at 120) and was followed in India
and in Burma in In re Vallabhdas (I.L.R.
27 Bom. 394 at 390) and Ebrahim
Mamoojee Parekh v. King Emperor (I.L.R. 4
Rang. 257 at 259-261). In our view that is
still the law.”
9. A Constitution Bench of this Court
in Shri C. K. Daphtary v. Shri O.P. Gupta was
dealing with a case where the contemnor had
published a pamphlet casting scurrilous
aspersions on 2 Judges of this Court. During
the course of argument, the contemnor
raised a plea that all the evidence has not
been furnished to him and made a request
that the petitioner be asked to furnish the
“pamphlet” or “book” annexed to the petition.
The Court rejected this argument holding
that the booklet/pamphlet had been annexed
to the petition in original and the Court had
directed that the matter be decided on
affidavits.
19
10. In respect of the absence of a specific
charge being framed, the Court held that a
specific charge was not required to be framed
and the only requirement was that a fair
procedure should be followed. Dealing with
the Contempt of Courts Act, 1952 this Court
held as follows:—
“58. We are here also not concerned
with any law made by Parliament. Article
129 shows that the Supreme Court has all
the powers of a Court of Record, including
the power to punish for contempt of itself;
and Article 142(2) goes further and
enables us to investigate any contempt of
this Court.”
11. Thereafter, this Court approved the
observations in Sukhdev Singh Sodhi's
case (supra) and held as follows:—
“78. In our view that is still the law. It
is in accordance with the practice of this
Court that a notice was issued to the
respondents and opportunity given to
them to file affidavits stating facts and
their contentions. At one stage, after
arguments had begun Respondent No. 1
asked for postponement of the case to
engage some lawyers who were engaged in
fighting elections. We refused
adjournment because we were of the view
that the request was not reasonable and
was made with a view to delay matters. We
may mention that the first respondent
fully argued his case for a number of days.
The procedure adopted by us is the usual
procedure followed in all cases.”
12. According to the alleged contemnors,
both the aforesaid judgments are per
20
incuriam after coming into force of the
Contempt of Courts Act, 1971. They are
definitely not per incuriam because they have
been decided on the basis of the law which
admittedly existed, but for the purposes of
this case, we shall treat the argument of the
alleged contemnors to be that the judgments
are no longer good law and do not bind this
Court. It has been contended by the alleged
contemnors that both the aforesaid cases are
overruled by later judgments. We shall now
refer to some of the decisions cited by the
parties.
13. In P.N. Duda v. P. Shiv Shanker the
respondent, Shri P. Shiv Shiv Shanker, who
was a former judge of the High Court and was
the Minister for Law, Justice and Company
Affairs delivered a speech which was said to
be contemptuous. A petition was filed by the
petitioner P. N. Duda who was an advocate of
this Court but this Court declined to initiate
contempt proceedings. At the outset, we may
note that while giving the reasons for not
initiating contempt, though this Court held
that the contempt petition was not
maintainable, it went into the merits of the
speech delivered by Shri P. Shiv Shanker and
held that there was no imminent danger of
interference with the administration of the
justice and bringing administration into
disrepute. It was held that Shri P. Shiv
Shanker was not guilty of contempt of this
Court. Having held so, the Court went on to
decide whether the petition could have been
entertained on behalf of Shri Duda. In the
said petition, Shri Duda had written a letter
to the Attorney General seeking consent for
initiating contempt proceedings against Shri
21
P. Shiv Shanker. A copy of the said letter was
also sent to the Solicitor General of India.
While seeking consent, the petitioner had
also stated that the Attorney General may be
embarrassed to give consent for prosecution
of the Law Minister and in view of the said
allegations, the Attorney General felt that the
credibility and authority of the office of the
Attorney General was undermined and
therefore did not deny or grant sanction for
prosecution. The Court held that the
petitioner could not move the Court for
initiating contempt proceedings against the
respondent without consent of the Attorney
General and the Solicitor General. The
relevant portion of the judgment reads as
follows:—
“39. The question of contempt of court
came up for consideration in the case
of C.K. Daphtary v. O.P. Gupta. In that
case a petition under Article 129 of the
Constitution was filed by Shri C.K.
Daphtary and three other advocates
bringing to the notice of this Court alleged
contempt committed by the respondents.
There this court held that under Article
129 of the Constitution this Court had the
power to punish for contempt of itself and
under Article 143(2) it could investigate
any such contempt. This Court reiterated
that the Constitution made this Court the
guardian of fundamental rights. This
Court further held that under the existing
law of contempt of court any publication
which was calculated to interfere with the
due course of justice or proper
administration of law would amount to
contempt of court. A scurrilous attack on
22
a Judge, in respect of a judgment or past
conduct has in our country the inevitable
effect of undermining the confidence of the
public in the Judiciary ; and if confidence
in Judiciary goes administration of justice
definitely suffers. In that case a pamphlet
was alleged to have contained statements
amounting to contempt of the court. As
the Attorney General did not move in the
matter, the President of the Supreme
Court bar and the other petitioners chose
to bring the matter to the notice of the
court. It was alleged that the said
President and the other members of the
bar have no locus standi. This Court held
that the court could issue a notice suo
motu. The President of the Supreme Court
bar and other petitioners were perfectly
entitled to bring to the notice of the court
any contempt of the court. The first
respondent referred to Lord Shawcross
Committee's recommendation in U.K. that
“proceedings should be instituted only if
the Attorney General in his discretion
considers them necessary”. This was only
a recommendation made in the light of
circumstances prevailing in England. But
that is not the law in India, this Court
reiterated. It has to be borne that decision
was rendered on March 19, 1971 and the
present Act in India was passed on
December 24, 1971. Therefore that
decision cannot be of any assistance. We
have noticed Sanyal Committee's
recommendations in India as to why the
Attorney General should be associated
with it, and thereafter in U.K. there was
report of Phillimore Committee in 1974. In
23
India the reason for having the consent of
the Attorney General was examined and
explained by Sanyal Committee Report as
noticed before.”
14. The alleged contemnors contended
that the last portion of the aforesaid
paragraph shows that the judgment in C.K.
Daphtary's case (supra) having been
delivered prior to the enactment of Contempt
of Courts Act, 1971 is no longer applicable.
We may however point out that in the very
next paragraph in the same judgment, it was
held as follows:—
“40. Our attention was drawn by Shri
Ganguly to a decision of the Allahabad
High Court in G.N. Verma v. Hargovind
Dayal (AIR 1975 All 52) where the Division
Bench reiterated that Rules which provide
for the manner in which proceedings for
contempt of court should be taken
continue to apply even after the enactment
of the Contempt of Courts Act, 1971.
Therefore cognizance could be taken suo
motu and information contained in the
application by a private individual could
be utilised. As we have mentioned
hereinbefore indubitably cognizance could
be taken suo motu by the court but
members of the public have also the right
to move the court. That right of bringing to
the notice of the court is dependent upon
consent being given either by the Attorney
General or the Solicitor General and if that
consent is withheld without reasons or
without consideration of that right granted
to any other person under Section 15 of
the Act that could be investigated in an
application made to the court.”
24
15. The alleged contemnors rely on certain
observations in the concurring judgment of
Justice Ranganathan in the same judgment
wherein he has approved the following
passage from a judgment of the Delhi High
Court in Anil Kumar Gupta v. K. Subba
Rao.:—
“The office is to take note that in future
if any information is lodged even in the
form of a petition inviting this Court to
take action under the Contempt of Courts
Act or Article 215 of the Constitution,
where the informant is not one of the
persons named in Section 15 of the said
Act, it should not be styled as a petition
and should not be placed for admission on
the judicial side. Such a petition should be
placed before the Chief Justice for orders
in Chambers and the Chief Justice may
decide either by himself or in consultation
with the other judges of the Court whether
to take any cognizance of the information.
The office is directed to strike off the
information as “Criminal Original No. 51
of 1973” and to file it.”
Thereafter Justice Ranganathan made the
following observation:—
“54….I think that the direction given by
the Delhi High Court sets out the proper
procedure in such cases and may be
adopted, at least in future, as a practice
direction or as a rule, by this Court and
other High Courts….”
16. Relying upon the aforesaid
observations in the judgment delivered by
Justice Ranganathan it is submitted that the
petition could not have been placed for
25
admission on the judicial side but should
have been placed before the Chief Justice
and not before any other Bench. We are not
at all in agreement with the submission.
What Justice Ranganathan observed is an
obiter and not the finding of the Bench and
this is not the procedure prescribed under
the Rules of this Court.
17. This Court has framed rules in this
regard known as The Rules to Regulate
Proceedings for Contempt of the Supreme
Court, 1975 (for short ‘the Rules’) and
relevant portion of Rule 3 of the Rules reads
as follows:—
“3. In case of contempt other than the
contempt referred to in rule 2, the Court
may take action—
(a) suo motu, or
(b) on a petition made by AttorneyGeneral, or Solicitor- General, or
(c) on a petition made by any person,
and in the case of a criminal
contempt with the consent in writing
of the Attorney-General or the
Solicitor-General.”
18. A bare perusal of Rule 3 shows that
there are 3 ways for initiating contempt
proceedings. The first is suo motu, the second
is on a petition made by the Attorney General
or the Solicitor General, and the third is on
the basis of a petition made by any person
and where criminal contempt is involved
then the consent of the Attorney General or
the Solicitor General is necessary. Rules 4
and 5 prescribe for the manner of filing of a
petition under Rules 3(b) and 3(c). Rule 4 lays
26
down the requirements of a petition to be
filed under Rules 3(b) and 3(c) and Rule 5
requires that every petition under Rule 3(b)
or Rule 3(c) shall be placed before the Court
for preliminary hearing. Rule 6 requires
notice to the person charged to be in terms of
Form I. Rule 6 reads as follows:—
“6. (1) Notice to the person charged shall
be in Form I. The person charged
shall, unless otherwise ordered,
appear in person before the Court as
directed on the date fixed for hearing
of the proceeding, and shall continue
to remain present during hearing till
the proceeding is finally disposed of
by order of the Court.
(2) When action is instituted on petition,
a copy of the petition along with the
annexure and affidavits shall be
served upon the person charged.”
19. These Rules have been framed by the
Supreme Court in exercise of the powers
vested in it under Section 23 of the Contempt
of Courts Act, 1971 and they have been
notified with the approval of Hon'ble the
President of India.
20. In Pritam Pal v. High Court of Madhya
Pradesh, Jabalpur Through Registrar, a 2
Judge Bench of this Court held as follows:—
“15. Prior to the Contempt of Courts
Act, 1971, it was held that the High Court
has inherent power to deal with a
contempt of itself summarily and to adopt
its own procedure, provided that it gives a
fair and reasonable opportunity to the
contemnor to defend himself. But the
27
procedure has now been prescribed by
Section 15 of the Act in exercise of the
powers conferred by Entry 14, List III of
the Seventh Schedule of the Constitution.
Though the contempt jurisdiction of the
Supreme Court and the High Court can be
regulated by legislation by appropriate
Legislature under Entry 77 of List I and
Entry 14 of List III in exercise of which the
Parliament has enacted the Act of 1971,
the contempt jurisdiction of the Supreme
Court and the High Court is given a
constitutional foundation by declaring to
be ‘Courts of Record’ under Articles 129
and 215 of the Constitution and,
therefore, the inherent power of the
Supreme Court and the High Court cannot
be taken away by any legislation short of
constitutional amendment. In fact,
Section 22 of the Act lays down that the
provisions of this Act shall be in addition
to and not in derogation of the provisions
of any other law relating to Contempt of
Courts. It necessarily follows that the
constitutional jurisdiction of the Supreme
Court and the High Court under Articles
129 and 215 cannot be curtailed by
anything in the Act of 1971…”
21. In Delhi Judicial Service Association,
Tis Hazari Court, Delhi v. State of Gujarat. a
three-Judge Bench of this Court relied upon
the judgment in the case of Sukhdev Singh
Sodhi (supra) and held that the Supreme
Court had inherent jurisdiction or power to
punish for contempt of inferior courts under
Article 129 of the Constitution of India.
22. A three-Judge Bench of this Court In
Re: Vinay Chandra Mishra discussed the law
28
on this point in detail. The Court while
holding the respondent guilty for contempt
had not only sentenced him to simple
imprisonment for a period of 6 weeks which
was suspended but also suspended his
advocacy for a period of 3 years, relying upon
the powers vested in this Court under Article
129 and 142 of the Constitution of India.
23. We may now refer to certain other
provisions of Constitution, Entry 77, Union
List (List I) of VII Schedule reads as follows:
“77. Constitution, organisation,
jurisdiction and powers of the Supreme
Court (including contempt of such Court),
and the fees taken therein; persons
entitled to practise before the Supreme
Court.”
Entry 14, Concurrent List (List III of VII
Schedule) reads as follows:
“14. Contempt of court, but not
including contempt of the Supreme
Court.”
In exercise of the aforesaid powers the
Contempt of Courts Act, 1971 was enacted
by Parliament. Section 15 deals with
cognizance of criminal contempt and the
opening portion of Section 15 clearly provides
that the Supreme Court or the High Courts
may take action (i) suo motu (ii) on a motion
moved by the Advocate General in case of
High Court or Attorney General/Solicitor
General in the case of Supreme Court and (iii)
on a petition by any other person with the
consent in writing of the Advocate
General/Attorney General/Solicitor General
as the case may be. Section 17 lays down the
29
procedure to be followed when action is taken
on a motion moved by the Advocate
General/Attorney General/Solicitor General
or on the basis of their consent and Section
17(2) does not deal with suo motu contempt
petitions. Section 17(2)(a) of the Contempt of
Courts Act will not apply to suo
motu petitions because that deals with the
proceedings moved on a motion and not suo
motu proceedings. Section 17(2)(b) deals with
contempt initiated on a reference made by
the subordinate court. It is only in these
cases that the notice is required to be issued
along with a copy of the motion. As far as suo
motu petitions are concerned, in these cases
the only requirement of Form-I which has
been framed in pursuance of Rule 6 of the
Rules of this Court is that the brief nature of
the contempt has to be stated therein.
24. The correctness of the judgment
in Vinay Chandra Mishra's case (supra) was
considered by a Constitution Bench of this
Court in Supreme Court Bar
Association v. Union of India. We shall be
referring to certain portions of that judgment
in detail. That being a Constitution Bench
judgment, is binding and all other judgments
which may have taken a view to the contrary
cannot be said to be correct. Before we deal
with the judgment itself, it would be
appropriate to refer to certain provisions of
the Contempt of Courts Act, 1971. Section 2
is the definition clause defining “contempt of
court”, “civil contempt’, “criminal contempt’
and “High Court’. Sections 3 to 5 deal with
innocent publication, fair and accurate
reporting of judicial proceedings and fair
criticism of judicial act, which do not amount
30
to contempt. Sections 10 and 11 deal with
the powers of the High Court to punish for
contempt. Section 12(2) provides that no
court shall impose a sentence in excess of
that specified in sub-section (1) of Section 12.
Section 13 provides that no court should
impose a sentence under the Act for
contempt unless it is satisfied that the
contempt is of such a nature that it
substantially interferes or tends to
substantially interfere with the due course of
justice. It also provides that truth can be
permitted to be raised as a valid defence if the
court is satisfied that the defence has been
raised in the public interest and is a bona
fide defence. Section 14 deals with the
powers of the Supreme Court or the High
Courts to deal with contempt in the face of
the Court. We have already dealt with Section
15 which deals with cognizance of the
criminal contempt other than contempt in
the face of the Court. Section 17 lays down
the procedure after cognizance. It is in the
background of this Act that we have to read
and analyse the judgment of the Constitution
Bench.
25. The Constitution Bench referred to the
provisions of Article 129 of the Constitution
of India and also Entry 77 of List I of Seventh
Schedule and Entry 14 of List III of the
Seventh Schedule and, thereafter, held as
follows:—
“18. The language of Entry 77 of List I
and Entry 14 of List III of the Seventh
Schedule demonstrates that the legislative
power of Parliament and of the State
Legislature extends to legislate with
respect to matters connected with
31
contempt of court by the Supreme Court
or the High Court, subject however, to the
qualification that such legislation cannot
denude, abrogate or nullify, the power of
the Supreme Court to punish for contempt
under Article 129 or vest that power in
some other court.”
(emphasis supplied)
26. This Court referring to Article 142 of
the Constitution held as follows:—
“21. It is, thus, seen that the power of
this Court in respect
of investigation or punishment of any
contempt including contempt of itself, is
expressly made “subject to the provisions
of any law made in this behalf by
Parliament” by Article 142(2). However,
the power to punish for contempt being
inherent in a court of record, it follows that
no act of Parliament can take away
that inherent jurisdiction of the court of
record to punish for contempt and
Parliament's power of legislation on the
subject cannot, therefore, be so exercised
as to stultify the status and dignity of the
Supreme Court and/or the High Courts,
though such a legislation may serve as a
guide for the determination of the nature
of punishment which this Court may
impose in the case of established
contempt. Parliament has not enacted any
law dealing with the powers of the
Supreme Court with regard to
investigation and punishment of contempt
of itself, (we shall refer to Section 15 of the
Contempt of Courts Act, 1971, later on)
and this Court, therefore, exercises the
32
power to investigate and punish for
contempt of itself by virtue of the powers
vested in it under Articles 129 and 142(2)
of the Constitution of India.”
27. This Court then made reference to the
provision of the Contempt of Courts Act,
1926, the Contempt of Courts Act, 1952 and
the Contempt of Courts Act, 1971 and
thereafter held as follows:—
“29. Section 10 of the 1971 Act like
Section 2 of the 1926 Act and Section 4 of
the 1952 Act recognises the power which
a High Court already possesses as a court
of record for punishing for contempt of
itself, which jurisdiction has now the
sanction of the Constitution also by virtue
of Article 215. The Act, however, does not
deal with the powers of the Supreme Court
to try or punish a contemner for
committing contempt of the Supreme
Court or the courts subordinate to it and
the constitutional provision contained in
Articles 142(2) and 129 of the Constitution
alone deal with the subject.”
28. It would also be pertinent to refer to
the following observations of the Constitution
Bench:—
“38. As already noticed, Parliament by
virtue of Entry 77 List I is competent to
enact a law relating to the powers of the
Supreme Court with regard to contempt of
itself and such a law may prescribe the
nature of punishment which may be
imposed on a contemner by virtue of the
provisions of Article 129 read with Article
142(2). Since, no such law has been
enacted by Parliament, the nature of
33
punishment prescribed under the
Contempt of Courts Act, 1971 may act as
a guide for the Supreme Court but the
extent of punishment as prescribed under
that Act can apply only to the High Courts,
because the 1971 Act ipso facto does not
deal with the contempt jurisdiction of the
Supreme Court, except that Section 15 of
the Act prescribes procedural mode for
taking cognizance of criminal contempt by
the Supreme Court also. Section 15,
however, is not a substantive provision
conferring contempt jurisdiction. The
judgment in Sukhdev Singh case (AIR
1954 SC 186 : 1954 SCR 454) as regards
the extent of “maximum punishment”
which can be imposed upon a contemner
must, therefore, be construed as dealing
with the powers of the High Courts only
and not of this Court in that behalf. We
are, therefore, doubtful of the validity of
the argument of the learned Solicitor
General that the extent of
punishment which the Supreme Court can
impose in exercise of its inherent powers
to punish for contempt of itself and/or of
subordinate courts can also be only to the
extent prescribed under the Contempt of
Courts Act, 1971. We, however, do not
express any final opinion on that question
since that issue, strictly speaking, does
not arise for our decision in this case. The
question regarding the restriction or
limitation on the extent of punishment,
which this Court may award while
exercising its contempt jurisdiction may
be decided in a proper case, when so
raised.”
34
xxxxxxxxx
“40…Article 129 cannot take over the
jurisdiction of the Disciplinary Committee
of the Bar Council of the State or the Bar
Council of India to punish an advocate by
suspending his licence, which
punishment can only be imposed after a
finding of “professional misconduct” is
recorded in the manner prescribed under
the Advocates Act and the Rules framed
thereunder.”
xxxxxxxxx
“43. The power of the Supreme Court to
punish for contempt of court, though quite
wide, is yet limited and cannot be
expanded to include the power to
determine whether an advocate is also
guilty of “professional misconduct” in a
summary manner, giving a go-by to the
procedure prescribed under the Advocates
Act. The power to do complete justice
under Article 142 is in a way, corrective
power, which gives preference to equity
over law but it cannot be used to deprive a
professional lawyer of the due process
contained in the Advocates Act, 1961 by
suspending his licence to practice in a
summary manner while dealing with a
case of contempt of court.”
xxxxxxxxx
“57. In a given case, an advocate found
guilty of committing contempt of court
may also be guilty of committing
“professional misconduct”, depending
upon the gravity or nature of his
contumacious conduct, but the two
35
jurisdictions are separate and distinct and
exercisable by different forums by
following separate and distinct
procedures. The power to punish an
advocate by suspending his licence or by
removal of his name from the roll of the
State Bar Council for proven professional
misconduct vests exclusively in the
statutory authorities created under the
Advocates Act, 1961, while the jurisdiction
to punish him for committing contempt of
court vests exclusively in the courts.”
29. A careful analysis of the Constitution
Bench decision leaves no manner of doubt
that Section 15 of the Act is not a substantive
provision conferring contempt jurisdiction.
The Constitution Bench finally left the
question as to whether the maximum
sentence prescribed by the Act binds the
Supreme Court open. The observations made
in Para 38 referred to above clearly indicate
that the Constitution Bench was of the view
that the punishment prescribed in the Act
could only be a guideline and nothing more.
Certain observations made in this judgment
that the Court exceeded its jurisdiction
in Vinay Chandra Mishra's case (supra) by
taking away the right of practice for a period
of 3 years have to be read in the context that
the Apex Court held that Article 129 cannot
take over the jurisdiction of the Bar Council
of the State or the Bar Council of India to
punish an advocate. These observations, in
our opinion have to be read with the other
observations quoted hereinabove which
clearly show that the Constitution Bench
held that “Parliament has not enacted
any law dealing with the powers of the
36
Supreme Court with regard to
investigation and punishment of
contempt of itself ’. The Court also held
that Section 15 is not a substantive provision
conferring contempt jurisdiction and,
therefore, is only a procedural section
especially in so far as suo moto contempts
are concerned. It is thus clear that the
powers of the Supreme Court to punish for
contempt committed of itself is a power not
subject to the provisions of the Act.
Therefore, the only requirement is to follow a
procedure which is just, fair and in
accordance with the rules framed by this
Court.
30. As far as the observations made in the
case of Pallav Sheth v. Custodian10 are
concerned, this Court in that case was only
dealing with the question whether contempt
can be initiated after the limitation
prescribed in the Contempt of Courts Act has
expired and the observations made therein
have to be read in that context only. Relevant
portion of Para 30 of the Pallav Seth's
case (supra) reads as follows:
“30. There can be no doubt that both
this Court and High Courts are Courts of
Records 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
be any legislation indicating the manner
and to the extent that the power 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
37
can be little doubt that such law should
not be regarded as having been validly
enacted. It, however, appears to us that
providing for the quantum of punishment
ow what may or may not be regarded 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.”
The aforesaid finding clearly indicates that
the Court held that any law which stultifies
or abrogates the power of the Supreme Court
under Article 129 of the Constitution or of the
High Courts under Article 215 of the
Constitution, could not be said to be validly
enacted. It however, went on to hold that
providing the quantum of punishment or a
period of limitation would not mean that the
powers of the Court under Article 129 have
been stultified or abrogated. We are not going
into the correctness or otherwise of this
judgment but it is clear that this judgment
only dealt with the issue whether the
Parliament could fix a period of limitation to
initiate the proceedings under the Act.
Without commenting one way or the other
on Pallav Seth's case (supra) it is clear that
the same has not dealt with the powers of
this Court to issue suo motu notice of
contempt.
31. In view of the above discussion we are
clearly of the view that the powers of the
Supreme Court to initiate contempt are not
in any manner limited by the provisions of
the Act. This Court is vested with the
38
constitutional powers to deal with the
contempt. Section 15 is not the source of the
power to issue notice for contempt. It only
provides the procedure in which such
contempt is to be initiated and this procedure
provides that there are three ways of
initiating a contempt - (i) suo motu (ii) on the
motion by the Advocate General/Attorney
General/Solicitor General and (iii) on the
basis of a petition filed by any other person
with the consent in writing of the Advocate
General/Attorney General/Solicitor General.
As far as suo motu petitions are concerned,
there is no requirement for taking consent of
anybody because the Court is exercising its
inherent powers to issue notice for contempt.
This is not only clear from the provisions of
the Act but also clear from the Rules laid
down by this Court.”
18. From the perusal of various judgments of this Court,
including those of the Constitution Benches, it could be seen,
that the source of power of this Court for proceeding for an
action of contempt is under Article 129. It has further been
held, that power of this Court to initiate contempt is not in any
manner limited by the provisions of the Contempt of Courts
Act, 1971. It has been held, that the Court is vested with the
constitutional powers to deal with the contempt and Section
15 is not the source of the power to issue notice for contempt.
39
It only provides the procedure in which such contempt is to be
initiated. It has been held, that insofar as suo motu petitions
are concerned, the Court can very well initiate the proceedings
suo motu on the basis of information received by it. The only
requirement is that the procedure as prescribed in the
judgment of P.N. Duda (supra) has to be followed. In the
present case, the same has undoubtedly been followed. It is
also equally settled, that as far as the suo motu petitions are
concerned, there is no requirement for taking consent of
anybody, including the learned Attorney General because the
Court is exercising its inherent powers to issue notice for
contempt. It is equally well settled, that once the Court takes
cognizance, the matter is purely between the Court and the
contemnor. The only requirement is that, the procedure
followed is required to be just and fair and in accordance with
the principles of natural justice. In the present case, the notice
issued to the alleged contemnors clearly mentions the tweets
on the basis of which the Court is proceeding suo motu. The
alleged contemnor No.1 has also clearly understood the basis
40
on which the Court is proceeding against him as is evident
from the elaborate affidavit-in-reply filed by him.
19. Before we advert to the facts of the present case, let us
examine the legal position as is enunciated in the various
judgments of this Court.
20. In the case of Brahma Prakash Sharma (supra), the
Constitution Bench observed thus:
“It admits of no dispute that the summary
jurisdiction exercised by superior courts
in punishing contempt of their authority
exists for the purpose of preventing
interference with the course of justice and
for maintaining the authority of law as is
administered in the courts. It would be
only repeating what has been said so often
by various Judges that the object of
contempt proceedings is not to afford
protection to Judges personally from
imputations to which they may be exposed
as individuals; it is intended to be a
protection to the public whose interests
would be very much affected if by the act
or conduct of any party, the authority of
the court is lowered and the sense of
confidence which people have in the
administration of justice by it is weakened.
41
21. It could thus be seen, that the Constitution Bench has
held, that the summary jurisdiction exercised by superior
courts in punishing contempt of their authority exists for the
purpose of preventing interference with the course of justice
and for maintaining the authority of law as is administered in
the courts; that the object of contempt proceedings is not to
afford protection to judges personally from imputations to
which they may be exposed as individuals. It has been held,
that it is intended to be a protection to the public whose
interests would be very much affected if by the act or conduct
of any party, the authority of the court is lowered and the sense
of confidence which people have in the administration of
justice by it is weakened. The Constitution Bench further
observed:
“There are indeed innumerable ways by
which attempts can be made to hinder or
obstruct the due administration of justice
in courts. One type of such interference is
found in cases where there is an act or
publication which “amounts to
scandalising the court itself” an
expression which is familiar to English
lawyers since the days of Lord Hardwicke
42
[ Vide In re Read and Huggonson, (1742) 2
Atk. 469, 471] . This scandalising might
manifest itself in various ways but, in
substance, it is an attack on individual
Judges or the court as a whole with or
without reference to particular cases
casting unwarranted and defamatory
aspersions upon the character or ability of
the Judges. Such conduct is punished as
contempt for this reason that it tends to
create distrust in the popular mind and
impair confidence of people in the courts
which are of prime importance to the
litigants in the protection of their rights
and liberties.”
22. The Constitution Bench thus holds, that a publication
which attacks on individual judges or the court as a whole with
or without reference to particular case, casting unwarranted
and defamatory aspersions upon the character or ability of the
judges, would come within the term of scandalizing the Court.
It is held, that such a conduct tends to create distrust in the
popular mind and impair the confidence of the people in the
courts, which are of prime importance to the litigants in the
protection of their rights and liberties. It has been held, that
it is not necessary to prove affirmatively, that there has been
43
an actual interference with the administration of justice by
reason of such defamatory statement and it is enough if it is
likely, or tends in any way, to interfere with the proper
administration of justice.
23. In the case of In re Hira Lal Dixit and two others6
,
the Constitution Bench was considering a leaflet distributed in
the court premises printed and published by the said Hira Lal
Dixit. He was the applicant in one of the writ petitions which
had been filed in the Supreme Court challenging the validity of
U.P. Road Transport Act, 1951. The leaflet though contained
a graphic account of the harassment and indignity said to
have been meted out to the writer by the State Officers and the
then State Minister of Transport in connection with the
cancellation and eventual restoration of his license in respect
of a passenger bus, also contained the following passage:
“The public has full and firm faith in the
Supreme Court, but sources that are in
the know say that the Government acts
with partiality in the matter of
appointment of those Hon'ble Judges as
Ambassadors, Governors, High
6
(1955) 1 SCR 677
44
Commissioners, etc., who give judgments
against Government but this has so far not
made any difference in the firmness and
justice of the Hon'ble Judges”.
It will be relevant to refer to the following
observation of the Constitution Bench in the said case:
“Learned counsel for the respondent, Hira
Lal Dixit, maintained that the passage in
question was perfectly innocuous and only
expressed a laudatory sentiment towards
the Court and that such flattery could not
possibly have the slightest effect on the
minds of the Judges of this august
tribunal. We do not think flattery was the
sole or even the main object with which
this passage was written or with which it
was published at the time when the
hearing of the appeals was in progress. It
no doubt begins with a declaration of
public faith in this Court but this is
immediately followed by other words
connected with the earlier words by the
significant conjunction “but”. The words
that follow are to the effect that sources
that are in the know say that the
Government acts with partiality in the
matter of appointment of those Judges as
Ambassadors, Governors, High
Commissioners, etc., who give judgments
against the Government. The plain
meaning of these words is that the Judges
who decide against the Government do not
get these high appointments. The
necessary implication of these words is
45
that the Judges who decide in favour of the
Government are rewarded by the
Government with these appointments. The
attitude of the Government is thus
depicted surely with a purpose and that
purpose cannot but be to raise in the
minds of the reader a feeling that the
Government, by holding out high hopes of
future employment, encourages the
Judges to give decisions in its favour. This
insinuation is made manifest by the words
that follow, namely, “this has so far not
made any difference in the firmness and
justice of the Hon'ble Judges”. The linking
up of these words with the preceding
words by the conjunction “but” brings into
relief the real significance and true
meaning of the earlier words. The passage
read as a whole clearly amounts to this:
“Government disfavours Judges who give
decisions against it but favours those
Judges with high appointments who
decide in its favour: that although this is
calculated to tempt Judges to give
judgments in favour of the Government it
has so far not made any difference in the
firmness and justice of the Judges”. The
words “so far” are significant. What, we
ask, was the purpose of writing this
passage and what was the object of the
distribution of the leaflet in the Court
premises at a time when the Court was in
the midst of hearing the appeals? Surely,
there was hidden in the offending passage
a warning that although the Judges have
“so far” remained firm and resisted the
temptation of deciding cases in favour of
Government in expectation of getting high
46
appointments, nevertheless, if they decide
in favour of the Government on this
occasion knowledgeable people will know
that they had succumbed to the
temptation and had given judgment in
favour of the Government in expectation of
future reward in the shape of high
appointments of the kind mentioned in the
passage. The object of writing this
paragraph and particularly of publishing
it at the time it was actually done was
quite clearly to affect the minds of the
Judges and to deflect them from the strict
performance of their duties. The offending
passage and the time and place of its
publication certainly tended to hinder or
obstruct the due administration of justice
and is a contempt of Court.”
A perusal of the aforesaid observation of the
Constitution Bench would reveal, that though the said
passage/paragraph begins with a statement, that ‘the public
has full and firm faith in the Supreme Court…’ and ends with,
‘but this has so far not made any difference in the firmness
and justice of the Hon’ble Judges’, the Court found, that if the
statement in the said passage/paragraph was read in entirety
and the timing and the manner in which it was published, it
was clear, that it was done to affect the minds of the judges
and to deflect them from the strict performance of their duties.
47
The Court came to the conclusion, that the offending passage
and the time and place of its publication certainly tended to
hinder or obstruct the due administration of justice and was a
contempt of Court.
While holding him guilty and rejecting his qualified
apology, the Constitution Bench observed thus:
“It is well established, as was said by this
Court in Brahma Prakash Sharma and
Others v. The State of Uttar Pradesh
(supra), that it is not necessary that there
should in fact be an actual interference
with the course of administration of justice
but that it is enough if the offending
publication is likely or if it tends in any
way to interfere with the proper
administration of law. Such insinuations
as are implicit in the passage in question
are derogatory to the dignity of the Court
and are calculated to undermine the
confidence of the people in the integrity of
the Judges. Whether the passage is read
as fulsome flattery of the Judges of this
Court or is read as containing the
insinuations mentioned above or the rest
of the leaflet which contains an attack on
a party to the pending proceedings is
taken separately it is equally
contemptuous of the Court in that the
object of writing it and the time and place
48
of its publication were, or were calculated,
to deflect the Court from performing its
strict duty, either by flattery or by a veiled
threat or warning or by creating prejudice
in its mind against the State. We are,
therefore, clearly of opinion and we hold
that the respondent Hira Lal Dixit by
writing the leaflet and in particular the
passage in question and by publishing it
at the time and place he did has
committed a gross contempt of this Court
and the qualified apology contained in his
affidavit and repeated by him through his
counsel cannot be taken as sufficient
amends for his misconduct.”
A perusal of the aforesaid paragraph would show,
that this Court reiterating the law as laid down in Brahma
Prakash Sharma (supra) held, that it is not necessary that
there should in fact be an actual interference with the course
of administration of justice but that it is enough if the offending
publication is likely or if it tends in any way to interfere with
the proper administration of law. Such insinuations as are
implicit in the passage in question are derogatory to the dignity
of the Court and are calculated to undermine the confidence of
the people in the integrity of the Judges. It is further held, that
49
whether the passage is read as fulsome flattery of the Judges
of this Court or is read as containing the insinuations or the
rest of the leaflet which contains an attack on a party to the
pending proceedings is taken separately, it is equally
contemptuous of the Court inasmuch as, the object of writing
it and the time and place of its publication were calculated to
deflect the Court from performing its strict duty, either by
flattery or by a veiled threat or warning or by creating prejudice
in its mind against the State.
24. This Court in E.M. Sankaran Namboodripad vs. T.
Narayanan Nambiar7 was considering the appeal by the
appellant therein, who was a former Chief Minister, against his
conviction and sentence by the Kerala High Court for contempt
of court. The said appellant had said in the press conference
that the judges are guided and dominated by class hatred,
class interests and class prejudices and where the evidence is
balanced between a well dressed pot-bellied rich man and a
poor-ill-dressed and illiterate person, the judge instinctively
7
(1970) 2 SCC 325
50
favours the former. He had further stated that the election of
judges would be a better arrangement. There were certain
other statements made by him in the press conference. Chief
Justice Hidayatullah observed thus:
“6. The law of contempt stems from the
right of the courts to punish by
imprisonment or fines persons guilty of
words or acts which either obstruct or
tend to obstruct the administration of
justice. This right is exercised in India by
all courts when contempt is committed in
facie curaie and by the superior courts on
their own behalf or on behalf of courts
subordinate to them even if committed
outside the courts. Formerly, it was
regarded as inherent in the powers of a
court of record and now by the
Constitution of India, it is a part of the
powers of the Supreme Court and the
High Courts. There are many kinds of
contempts. The chief forms of contempt
are insult to Judges, attacks upon them,
comment on pending proceedings with a
tendency to prejudice fair trial,
obstruction to officers of courts, witnesses
or the parties, abusing the process of the
court, breach of duty by officers
connected with the court and
scandalising the Judges or the courts.
The last form occurs, generally speaking,
when the conduct of a person tends to
bring the authority and administration of
the law into disrespect or disregard. In
this conduct are included all acts which
51
bring the court into disrepute or
disrespect or which offend its dignity,
affront its majesty or challenge its
authority. Such contempt may be
committed in respect of a Single Judge or
a single court but may, in certain
circumstances, be committed in respect of
the whole of the judiciary or judicial
system. The question is whether in the
circumstances of this case the offence was
committed.”
25. C.J. Hidayatullah observed that, when the conduct of
a person tends to bring the authority and administration of the
law into disrespect or disregard, the same would amount to
scandalising the Court. This conduct includes all acts which
bring the court into disrepute or disrespect or which offend its
dignity, affront its majesty or challenge its authority.
Upholding the conviction, this Court observed thus:
“34. ……. On the other hand, we cannot
ignore the occasion (a press conference),
the belief of the people in his word as a
Chief Minister and the ready ear which
many in his party and outside would give
to him. The mischief that his words would
cause need not be assessed to find him
guilty. The law punishes not only acts
which do in fact interfere with the courts
and administration of justice but also
those which have that tendency, that is to
say, are likely to produce a particular
52
result. Judged from the angle of courts
and administration of justice, there is not
a semblance of doubt in our minds that
the appellants his guilty of contempt of
court……”
26. In the case of C. K. Daphtary & Ors. vs. O. P. Gupta
& Ors.
8 this Court was considering a motion made under
Article 129 of the Constitution by the President of the Bar
Association and some other Advocates. By the said motion,
the petitioners therein had brought to the notice of this Court
the pamphlet printed and published by the respondent No.1
therein, wherein scurrilous aspersions were made against the
judges of this Court. It will be relevant to refer to the following
observations of this Court:
“We are unable to agree with him that a
scurrilous attack on a Judge in respect of
a judgment or past conduct has no
adverse effect on the due administration of
justice. This sort of attack in a country like
ours has the inevitable effect of
undermining the confidence of the public
in the Judiciary. If confidence in the
Judiciary goes, the due administration of
justice definitely suffers.”
8
(1971) 1 SCC 626
53
27. It could thus be seen, that it has been clearly held by
the Constitution Bench, that a scurrilous attack on a judge in
respect of a judgment or past conduct has an adverse effect on
the due administration of justice. The Constitution Bench has
unambiguously held, that this sort of attack in a country like
ours has the inevitable effect of undermining the confidence of
the public in the Judiciary and if the confidence in the
Judiciary goes, the due administration of justice definitely
suffers. In the said case, after holding the contemnor O.P.
Gupta guilty for contempt, this Court refused to accept the
apology tendered by him finding that the apology coupled with
fresh abuses can hardly be taken note of. However, taking a
lenient view, this Court sentenced him to suffer simple
imprisonment for two months.
28. In the case of Baradakanta Mishra (supra), a
disgruntled judicial officer aggrieved by the adverse orders of
the High Court on the administrative side made vilificatory
allegations in a purported appeal to the Governor. Considering
the contention of the appellant, that the allegations made
54
against the judges pertained to the acts of the judge in
administrative capacity and not acting in judicial capacity, the
Constitution Bench observed thus:
“43. We have not been referred to any
comprehensive definition of the expression
“administration of justice”. But
historically, and in the minds of the
people, administration of justice is
exclusively associated with the Courts of
justice constitutionally established. Such
Courts have been established throughout
the land by several statutes. The Presiding
Judge of a Court embodies in himself the
Court, and when engaged in the task of
administering justice is assisted by a
complement of clerks and ministerial
officers whose duty it is to protect and
maintain the records, prepare the writs,
serve the processes etc. The acts in which
they are engaged are acts in aid of
administration of justice by the Presiding
Judge. The power of appointment of clerks
and ministerial officers involves
administrative control by the Presiding
Judge over them and though such control
is described as administrative to
distinguish it from the duties of a judge
sitting in the seat of justice, such control
is exercised by the Judge as a judge in the
course of judicial administration. Judicial
administration is an integrated function of
the Judge and cannot suffer any
55
dissection so far as maintenance of high
standards of rectitude in judicial
administration is concerned. The whole
set up of a court is for the purpose of
administration of justice, and the control
which the Judge exercises over his
assistants has also the object of
maintaining the purity of administration
of justice. These observations apply to all
courts of justice in the land whether they
are regarded as superior or inferior courts
of justice.
44. Courts of justice have, in accordance
with their constitution, to perform
multifarious functions for due
administration of Justice. Any lapse from
the strict standards of rectitude in
performing these functions is bound to
affect administration of justice which is a
term of wider import than mere
adjudication of causes from the seat of
justice.
45. In a country which has a hierarchy of
Courts one above the other, it is usual to
find that the one which is above is
entrusted with disciplinary control over
the one below it. Such control is devised
with a view to ensure that the lower Court
functions properly in its judicial
administration. A Judge can foul judicial
administration by misdemeanours while
engaged in the exercise of the functions of
a judge. It is therefore, as important for the
56
superior Court, to be vigilant about the
conduct and behaviour of the Subordinate
Judge as a judge, as it is to administer the
law, because both functions are essential
for administration of justice. The Judge of
the superior Court in whom this
disciplinary control is vested functions as
much as a judge in such matters as when
he hears and disposes of cases before him.
The procedures may be different. The
place where he sits may be different. But
the powers are exercised in both instances
in due course of judicial administration. If
superior Courts neglect to discipline
subordinate Courts, they will fail in an
essential function of judicial
administration and bring the whole
administration of justice into contempt
and disrepute. The mere function of
adjudication between parties is not the
whole of administration of justice for any
court. It is important to remember that
disciplinary control is vested in the Court
and not in a judge as a private individual.
Control, therefore, is a function as
conducive to proper administration of
justice as laying down the law or doing
justice between the parties.
46. What is commonly described as an
administrative function has been, when
vested in the High Court, consistently
regarded by the statutes as a function in
the administration of justice. Take for
example the Letters Patent for the High
57
Court of Calcutta, Bombay and Madras.
Clause 8 thereof authorises and empowers
the Chief Justice from time to time as
occasion may require “to appoint so many
and such clerks and other ministerial
officers it shall be found necessary for the
administration of justice and the due
execution of all the powers and authorities
granted and committed to the said High
Court by these Letters Patent”. It is
obvious that this authority of the Chief
Justice to appoint clerks and ministerial
officers for the administration of justice
implies an authority to control them in the
interest of administration of justice. This
controlling function which is commonly
described as an administrative function is
designed with the primary object of
securing administration of justice.
Therefore, when the Chief Justice
appoints ministerial officers and assumes
disciplinary control over them, that is a
function which though described as
administrative is really in the course of
administration of justice. Similarly Section
9 of the High Courts Act, 1861 while
conferring on the High Courts several
types of jurisdictions and powers says that
all such jurisdictions and powers are “for
and in relation to the administration of
justice in the Presidency for which it is
established”. Section 106 of the
Government of India Act, 1915 similarly
shows that the several jurisdictions of the
High Court and all their powers and
58
authority are “in relation to the
administration of justice including power to
appoint clerks and other ministerial officers
of the Court”. Section 223 of the
Government of India Act, 1935 preserves
the jurisdictions of the existing High
Courts and the respective powers of the
Judges thereof in relation to the
administration of justice in the Court.
Section 224 of that Act declares that the
High Court shall have superintendence
over all courts in India for the time being
subject to its appellate jurisdiction and
this superintendence, it is now settled,
extends both to administrative and
judicial functions of the subordinate
Courts. When we come to our Constitution
we find that whereas Articles 225 and 227
preserve and to some extent extend these
powers in relation to administration of
justice, Article 235 vests in the High Court
the control over District Courts and courts
subordinate thereto. In the State of West
Bengal v. Nripendra Nath Bagchi [AIR
1966 SC 447 : (1966) 1 SCR 771 : (1968)
1 Lab LJ 270] this Court has pointed out
that control under Article 235 is control
over the conduct and discipline of the
Judges. That is a function which, as we
have already seen, is undoubtedly
connected with administration of justice.
The disciplinary control over the
misdemeanours of the subordinate
judiciary in their judicial administration is
a function which the High Court must
59
exercise in the interest of administration
of justice. It is a function which is
essential for the administration of justice
in the wide connotation it has received
and, therefore, when the High Court
functions in a disciplinary capacity, it only
does so in furtherance of administration of
justice.
47. We thus reach the conclusion that the
courts of justice in a State from the
highest to the lowest are by their
constitution entrusted with functions
directly connected with the administration
of justice, and it is the expectation and
confidence of all those who have or are
likely to have business therein that the
courts perform all their functions on a
high level of rectitude without fear or
favour, affection or ill-will.”
29. It could thus be seen, that the Constitution Bench
holds, that the judges apart from adjudication of causes from
the seat of justice are also required to discharge various
functions including the disciplinary control. It has been held,
that the judge of the superior Court in whom the disciplinary
control is vested functions as much as a Judge in such
matters, as when he hears and disposes of cases before him,
though the procedures may be different or the place where he
60
sits may be different. It has been held, that in both the cases,
the powers are exercised in due course of judicial
administration. It has been held, that if superior Courts
neglect to discipline subordinate courts, they will fail in an
essential function of judicial administration and bring the
whole administration of justice into contempt and disrepute. It
has been held, that mere function of adjudication between
parties is not the whole of administration of justice for any
court.
30. Quoting the opinion of Wilmot C.J. in the case of Rex
v. Almon9, the Constitution Bench observed thus:
“Further explaining what he meant by the
words “authority of the Court”, he
observed “the word ‘authority’ is
frequently used to express both the right
of declaring the law, which is properly
called jurisdiction, and of enforcing
obedience to it, in which sense it is
equivalent to the word power: but by the
word ‘ authority’, I do not mean that
coercive power of the Judges, but the
deference and respect which is paid to
them and their acts, from an opinion of
their justice and integrity”.
9 1765 Wilmot’s Notes of Opinions, 243: 97 ER 94
61
31. The Constitution Bench therefore approves the
opinion of Wilmot C.J., that by the word ‘authority’, it is not
meant as coercive power of the Judges, but the deference and
respect which is paid to them and their acts, from an opinion
of their justice and integrity.
32. It may also be relevant to refer the following
observations of the Constitution Bench in the case of
Baradakanta Mishra (supra):
“49. Scandalization of the Court is a
species of contempt and may take several
forms. A common form is the vilification of
the Judge. When proceedings in contempt
are taken for such vilification the question
which the Court has to ask is whether the
vilification is of the Judge as a judge.
(See Queen v. Gray), [(1900) 2 QB 36, 40]
or it is the vilification of the Judge as an
individual. If the latter the Judge is left to
his private remedies and the Court has no
power to commit for contempt. If the
former, the Court will proceed to exercise
the jurisdiction with scrupulous care and
in cases which are clear and beyond
reasonable doubt. Secondly, the Court will
have also to consider the degree of harm
caused as affecting administration of
justice and, if it is slight and beneath
notice, Courts will not punish for
62
contempt. This salutary practice is
adopted by Section 13 of the Contempt of
Courts Act, 1971. The jurisdiction is not
intended to uphold the personal dignity of
the Judges. That must rest on surer
foundations. Judges rely on their conduct
itself to be its own vindication.
50. But if the attack on the Judge
functioning as a judge substantially
affects administration of justice it becomes
a public mischief punishable for
contempt, and it matters not whether
such an attack is based on what a judge is
alleged to have done in the exercise of his
administrative responsibilities. A judge's
functions may be divisible, but his
integrity and authority are not divisible in
the context of administration of justice. An
unwarranted attack on him for corrupt
administration is as potent in doing public
harm as an attack on his adjudicatory
function.”
33. As rightly pointed out by Shri Dave, the Constitution
Bench holds, that when proceedings in contempt are taken for
vilification of a judge, the question that the Court will ask itself
is, whether the vilification is of the judge as a Judge or it is the
vilification of the judge as an individual. In the latter case, the
judge is left to his private remedies and the Court will have no
63
power to commit for contempt. However, in the former case,
the Court will proceed to exercise the jurisdiction with
scrupulous care and in cases which are clear and beyond
reasonable doubt. It has been held, that the jurisdiction is not
intended to uphold the personal dignity of the Judges.
However, if the attack on the Judge functioning as a Judge
substantially affects administration of justice, it becomes a
public mischief punishable for contempt and it does not matter
whether such an attack is based on what a judge is alleged to
have done in the exercise of his administrative responsibilities.
It has been held, a Judge's functions may be divisible, but his
integrity and authority are not divisible in the context of
administration of justice. It has been held, an unwarranted
attack on him for corrupt administration is as potent in doing
public harm as an attack on his adjudicatory function.
34. The Constitution Bench came to the conclusion, that
a vilificatory criticism of a Judge functioning as a Judge even
in purely administrative or non- adjudicatory matters amounts
to ‘criminal contempt’.
64
35. Upholding the conviction as recorded by the High
Court, taking into consideration the peculiar facts, the
Constitution Bench modified the sentence by directing him to
pay a fine of Rs.1,000/- or in default to suffer simple
imprisonment for three months.
36. Shri Dave has strongly relied on the concurring
opinion of Krishna Iyer, J. in Baradakanta Mishra (supra) in
the following paragraph
“88. Even so, if Judges have frailities — after
all they are human — they need to be
corrected by independent criticism. If the
judicature has serious shortcomings which
demand systemic correction through
socially-oriented reform initiated through
constructive criticism, the contempt power
should not be an interdict. All this, far from
undermining the confidence of the public in
Courts, enhances it and, in the last analysis,
cannot be repressed by indiscriminate resort
to contempt power. Even bodies like the Law
Commission or the Law Institute and
researchers, legal and sociological, may run
“contempt” risks because their professional
work sometimes involves unpleasant
criticism of judges, judicial processes and the
system itself and thus hover perilously
around the periphery of the law if widely
construed. Creative legal journalism and
activist statesmanship for judicial reform
65
cannot be jeopardised by an undefined
apprehension of contempt action.”
37. Relying on the above paragraph, it is his submission,
that the judges also have frailities. According to him, what the
alleged contemnor has done is to bring to the notice of this
Court the serious shortcomings, which demand systemic
correction. According to him, what he has done is far from
undermining the confidence of the public in Court but
enhances it and therefore, cannot be repressed by
indiscriminate resort to contempt power. We will deal with
this submission in the later part of our judgment.
38. Shri Dave has strongly relied on the judgment of this
Court in Re: S. Mulgaokar (supra). It will be relevant to refer
to the following observations in the judgment of Beg, C.J.
“16. The judiciary cannot be immune
from criticism. But, when that criticism is
based on obvious distortion or gross misstatement and made in a manner which
seems designed to lower respect for the
judiciary and destroy public confidence in
it, it cannot be ignored. I am not one of
those who think that an action for
contempt of court, which is discretionary,
should be frequently or lightly taken. But,
at the same time, I do not think that we
66
should abstain from using this weapon
even when its use is needed to correct
standards of behaviour in a grossly and
repeatedly erring quarter. It may be better
in many cases for the judiciary to adopt a
magnanimously charitable attitude even
when utterly uncharitable and unfair
criticism of its operations is made out of
bona fide concern for improvement. But,
when there appears some scheme and
design to bring about results which must
damage confidence in our judicial system
and demoralize Judges of the highest
Court by making malicious attacks,
anyone interested in maintaining high
standards of fearless, impartial, and
unbending justice will feel perturbed. I
sincerely hope that my own undisguised
perturbation at what has been taking
place recently is unnecessary. One may be
able to live in a world of yogic detachment
when unjustified abuses are hurled at
one's self personally, but, when the
question is of injury to an institution, such
as the highest Court of justice in the land,
one cannot overlook its effects upon
national honour and prestige in the comity
of nations. Indeed, it becomes a matter
deserving consideration of all seriousminded people who are interested in
seeing that democracy does not flounder
or fail in our country. If fearless and
impartial courts of justice are the bulwark
of a healthy democracy, confidence in
them cannot be permitted to be impaired
by malicious attacks upon them. However,
as we have not proceeded further in this
case, I do not think that it would be fair to
67
characterize anything written or said in
the Indian Express as really malicious or
ill-intentioned and I do not do so. We have
recorded no decision on that although the
possible constructions on what was
written there have been indicated above.”
39. Learned Chief Justice states, that the judiciary cannot
be immune from criticism. However, when that criticism is
based on obvious distortion or gross mis-statement and made
in a manner which seems designed to lower respect for the
judiciary and destroy public confidence in it, it cannot be
ignored. He opines, that an action for contempt of Court
should not be frequently or lightly taken. But, at the same
time, the Court should not abstain from using this weapon
even when its use is needed to correct standards of behaviour
in a grossly and repeatedly erring quarter. The learned C.J.
further observed, that it may be better in many cases for the
judiciary to adopt a magnanimously charitable attitude, even
when utterly uncharitable and unfair criticism of its operations
is made out of bona fide concern for improvement. However,
when there appears some scheme and design to bring about
68
results which must damage confidence in our judicial system
and demoralize Judges of the highest court by making
malicious attacks, anyone interested in maintaining high
standards of fearless, impartial and unbending justice will feel
perturbed. He opines, that when the question is of injury to an
institution, such as the highest Court of justice in the land,
one cannot overlook its effects upon national honour and
prestige in the comity of nations. He opined, that if fearless
and impartial courts of justice are the bulwark of a healthy
democracy, confidence in them cannot be permitted to be
impaired by malicious attacks upon them.
40. The aforesaid observations are important though the
Court, for different reasons, did not decide to proceed against
the alleged contemnor.
41. It will be relevant to refer to the following observations
of Krishna Iyer, J. in Re: S. Mulgaokar (supra):
“26. What then are the complex of
considerations dissuasive of punitive
action? To be exhaustive is a baffling
project; to be pontifical is to be
impractical; to be flexible is to be realistic.
What, then, are these broad guidelines —
69
not a complete inventory, but
precedentially validated judicial norms?
27. The first rule in this branch of
contempt power is a wise economy of use
by the Court of this branch of its
jurisdiction. The Court will act with
seriousness and severity where justice is
jeopardised by a gross and/or unfounded
attack on the Judges, where the attack is
calculated to obstruct or destroy the
judicial process. The Court is willing to
ignore, by a majestic liberalism, trifling
and venial offences — the dogs may bark,
the caravan will pass. The Court will not
be prompted to act as a result of an easy
irritability. Much rather, it shall take a
noetic look at the conspectus of features
and be guided by a constellation of
constitutional and other considerations
when it chooses to use, or desist from
using, its power of contempt.
28. The second principle must be to
harmonise the constitutional values of free
criticism, the Fourth Estate included, and
the need for a fearless curial process and
its presiding functionary, the Judge. A
happy balance has to be struck, the
benefit of the doubt being given generously
against the Judge, slurring over marginal
deviations but severely proving the
supremacy of the law over pugnacious,
vicious, unrepentant and malignant
contemners, be they the powerful press,
70
gang-up of vested interests, veteran
columnists of Olympian
establishmentarians. Not because the
Judge, the human symbol of a high value,
is personally armoured by a regal privilege
but because “be you — the contemner —
ever so high, the law — the People's
expression of justice — is above you”.
Curial courage overpowers arrogant might
even as judicial benignity forgives errant
or exaggerated critics. Indeed, to criticise
the Judge fairly, albeit fiercely, is no crime
but a necessary right, twice blessed in a
democracy For, it blesseth him that gives
and him that takes. Where freedom of
expression, fairly exercised, subserves
public interest in reasonable measure,
public justice cannot gag it or manacle it,
constitutionally speaking A free people are
the ultimate guarantors of fearless justice.
Such is the cornerstone of our
Constitution; such is the touchstone of
our Contempt Power, oriented on the
confluence of free speech and fair justice
which is the scriptural essence of our
Fundamental Law. Speaking of the social
philosophy and philosophy of law in an
integrated manner as applicable to
contempt of court, there is no conceptual
polarity but a delicate balance, and
judicial “sapience” draws the line. As it
happens, our Constitution-makers
foresaw the need for balancing all these
competing interests. Section 2(1)(c) of the
Contempt of Courts Act, 1971 provides:
71
“ ‘Criminal contempt’ means the
publication (whether by words, spoken
or written, or by signs, or by visible
representations, or otherwise) of any
matter or the doing of any other act
whatsoever which—
(i) scandalises or tends to
scandalise, or lowers or tends to
lower the authority of any court”
This is an extremely wide definition But, it
cannot be read apart from the conspectus
of the constitutional provisions within
which the Founding Fathers of the
Constitution intended all past and future
statutes to have meaning. All laws relating
to contempt of court had, according to the
provisions of Article 19(2), to be
“reasonable restrictions” on the exercise of
the right of free speech. The courts were
given the power—and, indeed, the
responsibility— to harmonise conflicting
aims, interests and values. This is in
sharp contrast to the Phillimore Committee
Report on Contempt of Court in the United
Kingdom [ (1974) bund. S. 794. paras 143-
5, pp. 61-2] which did not recommend the
defence of public interest in contempt
cases.
29. The third principle is to avoid
confusion between personal protection of
a libelled Judge and prevention of
obstruction of public justice and the
community's confidence in that great
process. The former is not contempt, the
72
latter is, although overlapping spaces
abound.
30. Because the law of contempt exists to
protect public confidence in the
administration of justice, the offence will
not be committed by attacks upon the
personal reputation of individual Judges
as such. As Professor Goodhart has put it
[ See Newspapers on Contempt of Court,
(1935) 48 Harv LR 885, 898]:
“Scandalising the court means any
hostile criticism of the Judge as Judge;
any personal attack upon him,
unconnected with the office he holds, is
dealt with under the ordinary rules of
slander and libel”
Similarly, Griffith, C.J. has said in
the Australian case of Nicholls [(1911) 12
CLR 280, 285] that:
“In one sense, no doubt, every
defamatory publication concerning a
Judge may be said to bring him into
contempt as that term is used in the law
of libel, but it does not follow that
everything said of a Judge calculated to
bring him into contempt in that sense
amounts to contempt of court”.
Thus in In the matter of a Special Reference
from the Bahama Islands [1893 AC 138]
the Privy Council advised that a contempt
had not been committed through a
publication in the Nassau Guardian
concerning the resident Chief Justice, who
73
had himself previously criticised local
sanitary conditions. Though couched in
highly sarcastic terms the publication did
not refer to the Chief Justice in his official,
as opposed to personal, capacity. Thus
while it might have been a libel it was not
a contempt.
31. The fourth functional canon which
channels discretionary exercise of the
contempt power is that the fourth estate
which is an indispensable intermediary
between the State and the people and
necessary instrumentality in
strengthening the forces of democracy,
should be given free play within
responsible limits even when the focus of
its critical attention is the court, including
the highest Court.
32. The fifth normative guideline for the
Judges to observe in this jurisdiction is
not to be hypersensitive even where
distortions and criticisms overstep the
limits, but to deflate vulgar denunciation
by dignified bearing, con-descending
indifference and repudiation by judicial
rectitude.
33. The sixth consideration is that, after
evaluating the totality of factors, if the
Court considers the attack on the Judge
or Judges scurrilous, offensive,
intimidatory or malicious beyond
condonable limits, the strong arm of the
74
law must, in the name of public interest
and public justice, strike a blow on him
who challenges the supremacy of the rule
of law by fouling its source and stream.”
42. It could thus be seen, that Justice Krishna Iyer, in his
inimitable style, has observed, that a wise economy of use of
the contempt power by the Court is the first rule. The Court
should act with seriousness and severity, where justice is
jeopardized by a gross and/or unfounded attack on the judges,
where the attack is calculated to obstruct or destroy the
judicial process. Otherwise, the Court should ignore, by a
majestic liberalism, trifling and venial offences. He says the
dogs may bark, the caravan will pass. He further opines, that
the constitutional values of free criticism, including the fourth
estate and the need for a fearless curial process and its
presiding functionary, the judge must be harmonised and a
happy balance has to be struck between the two. He opined,
that confusion between personal protection of a libeled judge
and prevention of obstruction of public justice and the
community's confidence in that great process is to be avoided.
It must be clearly kept in mind because the former is not
75
contempt, the latter is. He further observed, that the Fourth
Estate which is an indispensable intermediary between the
State and the people and necessary instrumentality in
strengthening the forces of democracy, should be given free
play within responsible limits even when the focus of its critical
attention is the court, including the highest Court. He opined,
that the judges should not be hypersensitive even where
distortions and criticisms overstep the limits, but they should
deflate vulgar denunciation by dignified bearing,
condescending indifference and repudiation by judicial
rectitude.
43. He opined, that if the court considers, after evaluating
the totality of factors, the attack on the judge or judges
scurrilous, offensive, intimidatory or malicious beyond
condonable limits, the strong arm of the law must, in the name
of public interest and public justice, strike a blow on him who
challenges the supremacy of the rule of law by fouling its
source and stream.
76
44. Though in the case of P.N. Duda (supra), this Court,
in the facts of the said case, held, that if the speech of the
Minister is read in entirety, it cannot be said that by some
portions, which were selectively taken from different parts of
the speech it could be held that the faith in the administration
of justice was shaken due to the criticism made by the
Minister; it will be relevant to refer to the following observations
of this Court.
“Any criticism about the judicial system or
the judges which hampers the
administration of justice or which erodes
the faith in the objective approach of
judges and brings administration of
justice into ridicule must be prevented.
The contempt of court proceedings arise
out of that attempt. Judgments can be
criticised; the motives of the judges need
not be attributed, it brings the
administration of justice into deep
disrepute. Faith in the administration of
justice is one of the pillars through which
democratic institution functions and
sustains. In the free market place of ideas
criticisms about the judicial system or
judges should be welcomed, so long as
such criticisms do not impair or hamper
the administration of justice. This is how
courts should approach the powers vested
in them as judges to punish a person for
an alleged contempt, be it by taking notice
77
of the matter suo motu or at the behest of
the litigant or a lawyer.
45. In the case of Pritam Pal vs. High Court of Madhya
Pradesh, Jabalpur through Registrar10
, this Court was
considering an appeal filed by an Advocate, who after failing to
get a favourable judgment in his own writ petition had moved
a contempt petition against the judges of the High Court, who
had dismissed his petition, therein casting scurrilous
aspersions against their conduct in the discharge of their
judicial function which bore reflections on their integrity,
honesty and judicial impartiality. The High Court invoking the
jurisdiction under Article 215 of the Constitution had initiated
suo motu proceedings against him and had convicted him for
having committed criminal contempt. While dismissing the
appeal, this Court observed thus:
“60. The maxim “salus populi suprema
lex”, that is “the welfare of the people is the
supreme law” adequately enunciates the
idea of law. This can be achieved only
when justice is administered lawfully,
judicially, without fear or favour and
without being hampered and thwarted,
10 1993 Supp (1) SCC 529
78
and this cannot be effective unless respect
for it is fostered and maintained.
61. To punish an advocate for contempt of
court, no doubt, must be regarded as an
extreme measure, but to preserve the
proceedings of the courts from being
deflected or interfered with, and to keep
the streams of justice pure, serene and
undefiled, it becomes the duty of the
Court, though painful, to punish the
contemnor in order to preserve its dignity.
No one can claim immunity from the
operation of the law of contempt, if his act
or conduct in relation to court or court
proceedings interferes with or is
calculated to obstruct the due course of
justice.”
46. This court held, that the welfare of the people is the
supreme law and this can be achieved only when justice is
administered lawfully, judicially, without fear or favour and
without being hampered and thwarted and this cannot be
effective unless respect for it is fostered and maintained. It has
been held, that to punish an Advocate for Contempt of court
must be regarded as an extreme measure, but to preserve the
proceedings of the Courts from being deflected or interfered
with, and to keep the streams of justice pure, serene and
79
undefiled, it becomes the duty of the Court to punish the
contemnor in order to preserve its dignity.
47. In the case of In re: Vinay Chandra Mishra11, this
Court had taken suo motu cognizance on the basis of the letter
addressed by one of the judges of the Allahabad High Court to
the Acting Chief Justice of the said Court, which was in turn
forwarded to the Chief Justice of India. It was noticed, that the
contemnor had gone to the extent of abusing the learned judge
beyond all limits. This Court observed thus:
“39. The rule of law is the foundation of a
democratic society. The Judiciary is the
guardian of the rule of law. Hence
judiciary is not only the third pillar, but
the central pillar of the democratic State.
In a democracy like ours, where there is a
written Constitution which is above all
individuals and institutions and where the
power of judicial review is vested in the
superior courts, the judiciary has a special
and additional duty to perform, viz., to
oversee that all individuals and
institutions including the executive and
the legislature act within the framework of
not only the law but also the fundamental
law of the land. This duty is apart from the
function of adjudicating the disputes
between the parties which is essential to
peaceful and orderly development of the
11 (1995) 2 SCC 584
80
society. If the judiciary is to perform its
duties and functions effectively and
remain true to the spirit with which they
are sacredly entrusted to it, the dignity
and authority of the courts have to be
respected and protected at all costs.
Otherwise, the very cornerstone of our
constitutional scheme will give way and
with it will disappear the rule of law and
the civilized life in the society. It is for this
purpose that the courts are entrusted with
the extraordinary power of punishing
those who indulge in acts whether inside
or outside the courts, which tend to
undermine their authority and bring them
in disrepute and disrespect by
scandalising them and obstructing them
from discharging their duties without fear
or favour. When the court exercises this
power, it does not do so to vindicate the
dignity and honour of the individual judge
who is personally attacked or scandalised,
but to uphold the majesty of the law and
of the administration of justice. The
foundation of the judiciary is the trust and
the confidence of the people in its ability to
deliver fearless and impartial justice.
When the foundation itself is shaken by
acts which tend to create disaffection and
disrespect for the authority of the court by
creating distrust in its working, the edifice
of the judicial system gets eroded.”
48. This Court holds, that the judiciary is the guardian of
the rule of law and is the central pillar of the democratic State.
It holds, that in our country, the written Constitution is above
81
all individuals and institutions and the judiciary has a special
and additional duty to perform i.e. to oversee that all
individuals and institutions including the executive and the
legislature, act within the framework of not only the law but
also the fundamental law of the land. It further holds, that
this duty is apart from the function of adjudicating the
disputes between the parties, which is essential to peaceful
and orderly development of the society. It holds, that if the
judiciary is to perform its duties and functions effectively and
remain true to the spirit with which they are sacredly entrusted
to it, the dignity and authority of the courts have to be
respected and protected at all costs. It has been held, that
otherwise, the very cornerstone of our constitutional scheme
will give way and with it will disappear the rule of law and the
civilized life in the society. It has been held, for this purpose
that the courts are entrusted with the extra-ordinary power of
punishing those who indulge in acts whether inside or outside
the courts, which tend to undermine their authority and bring
them in disrepute and disrespect by scandalising them and
82
obstructing them from discharging their duties without fear or
favour. It has been held, that when the court exercises this
power, it does not do so to vindicate the dignity and honour of
the individual judge who is personally attacked or scandalised,
but to uphold the majesty of the law and of the administration
of justice. It has been held, the foundation of the judiciary is
the trust and the confidence of the people in its ability to
deliver fearless and impartial justice. When the foundation
itself is shaken by acts which tend to create disaffection and
disrespect for the authority of the court by creating distrust in
its working, the edifice of the judicial system gets eroded.
49. In the case of Dr. D.C. Saxena vs. Hon’ble the Chief
Justice of India12, a writ petition was filed under Article 32
by way of a PIL making scurrilous imputations against the CJI.
This Court observed thus:
“33. A citizen is entitled to bring to the
notice of the public at large the infirmities
from which any institution including the
judiciary suffers from. Indeed, the right to
offer healthy and constructive criticism
which is fair in spirit must be left
unimpaired in the interest of the
12 (1996) 5 SCC 216
83
institution itself. Critics are instruments
of reform but not those actuated by malice
but those who are inspired by public weal.
Bona fide criticism of any system or
institution including the judiciary is aimed
at inducing the administration of the
system or institution to look inward and
improve its public image. Courts, the
instrumentalities of the State are subject
to the Constitution and the laws and are
not above criticism. Healthy and
constructive criticism are tools to augment
its forensic tools for improving its
functions. A harmonious blend and
balanced existence of free speech and
fearless justice counsel that law ought to
be astute to criticism. Constructive public
criticism even if it slightly oversteps its
limits thus has fruitful play in preserving
democratic health of public institutions.
Section 5 of the Act accords protection to
such fair criticism and saves from
contempt of court. The best way to sustain
the dignity and respect for the office of
judge is to deserve respect from the public
at large by fearlessness and objectivity of
the approach to the issues arising for
decision, quality of the judgment,
restraint, dignity and decorum a judge
observes in judicial conduct off and on the
bench and rectitude.”
50. It has been held, that a citizen is entitled to bring to
the notice of the public at large the infirmities from which any
institution including judiciary suffers from. It has been
84
further held, that the right to offer healthy and constructive
criticism, which is fair in spirit must be left unimpaired in the
interest of the institution itself. It has been held, that critics
are instruments of reform but not those actuated by malice but
those who are inspired by public weal. It has also been held,
that constructive public criticism even if it slightly oversteps
its limits thus has fruitful play in preserving democratic health
of public institutions.
51. This Court further observed thus:
“40. Scandalising the court, therefore,
would mean hostile criticism of judges as
judges or judiciary. Any personal attack
upon a judge in connection with the office
he holds is dealt with under law of libel or
slander. Yet defamatory publication
concerning the judge as a judge brings the
court or judges into contempt, a serious
impediment to justice and an inroad on
the majesty of justice. Any caricature of a
judge calculated to lower the dignity of the
court would destroy, undermine or tend to
undermine public confidence in the
administration of justice or the majesty of
justice. It would, therefore, be
scandalising the judge as a judge, in other
words, imputing partiality, corruption,
bias, improper motives to a judge is
scandalisation of the court and would be
contempt of the court. Even imputation of
85
lack of impartiality or fairness to a judge
in the discharge of his official duties
amounts to contempt. The gravamen of
the offence is that of lowering his dignity
or authority or an affront to the majesty of
justice. When the contemnor challenges
the authority of the court, he interferes
with the performance of duties of judge's
office or judicial process or administration
of justice or generation or production of
tendency bringing the judge or judiciary
into contempt. Section 2(c) of the Act,
therefore, defines criminal contempt in
wider articulation that any publication,
whether by words, spoken or written, or by
signs, or by visible representations, or
otherwise of any matter or the doing of any
other act whatsoever which scandalises or
tends to scandalise, or lowers or tends to
lower the authority of any court; or
prejudices, or interferes or tends to
interfere with, the due course of any
judicial proceeding; or interferes or tends
to interfere with, or obstructs or tends to
obstruct, the administration of justice in
any other manner, is a criminal contempt.
Therefore, a tendency to scandalise the
court or tendency to lower the authority of
the court or tendency to interfere with or
tendency to obstruct the administration of
justice in any manner or tendency to
challenge the authority or majesty of
justice, would be a criminal contempt. The
offending act apart, any tendency if it may
lead to or tends to lower the authority of
the court is a criminal contempt. Any
conduct of the contemnor which has the
tendency or produces a tendency to bring
86
the judge or court into contempt or tends
to lower the authority of the court would
also be contempt of the court.”
52. It could thus be seen, that it has been held by this
Court, that hostile criticism of judges as judges or judiciary
would amount to scandalizing the Court. It has been held,
that any personal attack upon a judge in connection with the
office he holds is dealt with under law of libel or slander. Yet
defamatory publication concerning the judge as a judge brings
the court or judges into contempt, a serious impediment to
justice and an inroad on the majesty of justice. This Court
further observed, that any caricature of a judge calculated to
lower the dignity of the court would destroy, undermine or tend
to undermine public confidence in the administration of justice
or the majesty of justice. It has been held, that imputing
partiality, corruption, bias, improper motives to a judge is
scandalisation of the court and would be contempt of the court.
It has been held, that the gravamen of the offence is that of
lowering his dignity or authority or an affront to the majesty of
justice. This Court held, that Section 2(c) of the Act defines
87
‘criminal contempt’ in wider articulation. It has been held, that
a tendency to scandalise the Court or tendency to lower the
authority of the court or tendency to interfere with or tendency
to obstruct the administration of justice in any manner or
tendency to challenge the authority or majesty of justice, would
be a criminal contempt.
53. The Constitution Bench of this Court in the case of
Supreme Court Bar Association vs. Union of India and
another13
, held thus:
“42. The contempt of court is a special
jurisdiction to be exercised sparingly and
with caution whenever an act adversely
affects the administration of justice or
which tends to impede its course or tends
to shake public confidence in the judicial
institutions. This jurisdiction may also be
exercised when the act complained of
adversely affects the majesty of law or
dignity of the courts. The purpose of
contempt jurisdiction is to uphold the
majesty and dignity of the courts of law. It
is an unusual type of jurisdiction
combining “the jury, the judge and the
hangman” and it is so because the court is
not adjudicating upon any claim between
litigating parties. This jurisdiction is not
exercised to protect the dignity of an
13 (1998) 4 SCC 409
88
individual judge but to protect the
administration of justice from being
maligned. In the general interest of the
community it is imperative that the
authority of courts should not be
imperilled and there should be no
unjustifiable interference in the
administration of justice. It is a matter
between the court and the contemner and
third parties cannot intervene. It is
exercised in a summary manner in aid of
the administration of justice, the majesty
of law and the dignity of the courts. No
such act can be permitted which may have
the tendency to shake the public
confidence in the fairness and impartiality
of the administration of justice.”
54. The observations of the Constitution Bench reiterate
the legal position that the contempt jurisdiction, which is a
special jurisdiction has to be exercised sparingly and with
caution, whenever an act adversely affects the administration
of justice or which tends to impede its course or tends to shake
public confidence in the judicial institutions. This jurisdiction
may also be exercised, when the act complained of adversely
affects the majesty of law or dignity of the courts. The purpose
of contempt jurisdiction is to uphold the majesty and dignity
of the courts of law. This jurisdiction is not to be exercised to
89
protect the dignity of an individual judge, but to protect the
administration of justice from being maligned. It is reiterated,
that in the general interest of the community, it is imperative
that the authority of courts should not be imperilled and there
should be no unjustifiable interference in the administration
of justice. It has been reiterated, that no such act can be
permitted, which may have the tendency to shake the public
confidence in the fairness and impartiality of the
administration of justice.
55. In the case of Arundhati Roy, in Re14, this Court
observed thus:
“28. As already held, fair criticism of the
conduct of a Judge, the institution of the
judiciary and its functioning may not
amount to contempt if it is made in good
faith and in public interest. To ascertain
the good faith and the public interest, the
courts have to see all the surrounding
circumstances including the person
responsible for comments, his knowledge
in the field regarding which the comments
are made and the intended purpose
sought to be achieved. All citizens cannot
be permitted to comment upon the
conduct of the courts in the name of fair
14 (2002) 3 SCC 343
90
criticism which, if not checked, would
destroy the institution itself…..”
56. This Court reiterated the position, that fair criticism of
the conduct of a judge, the institution of the judiciary and its
functioning may not amount to contempt, if it is made in good
faith and in public interest. For ascertaining the good faith
and the public interest, the courts have to see all the
surrounding circumstances including the person responsible
for comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to be
achieved.
57. It could thus be seen, that it is well settled that a
citizen while exercising right under Article 19(1) is entitled to
make a fair criticism of a judge, judiciary and its functioning.
However, the right under Article 19(1) is subject to restriction
under clause (2) of Article 19. An attempt has to be made to
properly balance the right under Article 19(1) and the
reasonable restriction under clause (2) of Article 19. If a
citizen while exercising his right under Article 19(1) exceeds
the limits and makes a statement, which tends to scandalize
91
the judges and institution of administration of justice, such an
action would come in the ambit of contempt of court. If a
citizen makes a statement which tends to undermine the
dignity and authority of this Court, the same would come in
the ambit of ‘criminal contempt’. When such a statement
tends to shake the public confidence in the judicial
institutions, the same would also come within the ambit of
‘criminal contempt’.
58. No doubt, that when a statement is made against a
judge as an individual, the contempt jurisdiction would not be
available. However, when the statement is made against a
judge as a judge and which has an adverse effect in the
administration of justice, the Court would certainly be entitled
to invoke the contempt jurisdiction. No doubt, that while
exercising the right of fair criticism under Article 19(1), if a
citizen bonafidely exceeds the right in the public interest, this
Court would be slow in exercising the contempt jurisdiction
and show magnanimity. However, when such a statement is
calculated in order to malign the image of judiciary, the Court
92
would not remain a silent spectator. When the authority of
this Court is itself under attack, the Court would not be a
onlooker. The word ‘authority’ as explained by Wilmot, C.J. and
approved by the Constitution Bench of this Court in
Baradakanta Mishra (supra) does not mean the coercive
power of the judges, but a deference and respect which is paid
to them and their acts, from an opinion of their justice and
integrity
59. As submitted by Shri Dave, relying on the observation
made by Krishna Iyer, J, in the case of Baradakanta Mishra
(supra), if a constructive criticism is made in order to enable
systemic correction in the system, the Court would not invoke
the contempt jurisdiction. However, as observed by the same
learned judge in Re: S. Mulgaokar, the Court will act with
seriousness and severity where justice is jeopardized by a gross
and/or unfounded attack on the judges and where the attack
is calculated to obstruct or destroy the judicial
process. Justice Krishna Iyer further observed, that after
evaluating the totality of factors, if the Court considers the
93
attack on the Judge or Judges to be scurrilous, offensive,
intimidatory or malicious beyond condonable limits, the strong
arm of the law must, in the name of public interest and public
justice, strike a blow on him, who challenges the supremacy of
the rule of law by fouling its source and stream.
60. In the light of these guiding principles, let us analyze
the tweets, admittedly, made by the alleged contemnor No.1
which have given rise to this proceeding.
61. After analysing the tweets, the questions that we will
have to pose is, as to whether the said tweets are entitled to
protection under Article 19(1) of the Constitution as a fair
criticism of the system, made in good faith in the larger public
interest or not.
62. We have reproduced both the tweets in the order dated
22.7.2020, which is reproduced in the beginning. The first
part of the first tweet states, that ‘CJI rides a 50 lakh
motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur
without a mask or helmet’. This part of the tweet could be said
to be a criticism made against the CJI as an individual and not
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against the CJI as CJI. However, the second part of the tweet
states, ‘at a time when he keeps the SC in lockdown mode
denying citizens their fundamental rights to access justice’.
Undisputedly, the said part of the statement criticizes the CJI
in his capacity as the Chief Justice of India i.e. the
Administrative Head of the judiciary of the country. The
impression that the said part of the tweet attempts to give to a
layman is, that the CJI is riding a 50 lakh motorcycle belonging
to a BJP leader at Raj Bhavan, Nagpur without a mask or
helmet, at a time when he has kept the SC in lockdown mode
denying citizens their fundamental right to access justice. The
said tweet is capable of giving an impression to a layman, that
the CJI is enjoying his ride on a motorbike worth Rs.50 lakh
belonging to a BJP leader, at a time when he has kept the
Supreme Court in lockdown mode denying citizens their
fundamental right to access justice.
63. Firstly, it would be noted, that the date on which the
CJI is alleged to have taken a ride on a motorbike is during the
period when the Supreme Court was on a summer vacation.
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In any case, even during the said period, the vacation Benches
of the Court were regularly functioning. The impression that
the said tweet intends to give is that the CJI as the head of the
Indian judiciary has kept the Supreme Court in lockdown
mode, thereby denying citizens their fundamental right to
access justice. In any case, the statement, that the Supreme
Court is in lockdown is factually incorrect even to the
knowledge of the alleged contemnor No.1. It is a common
knowledge, that on account of COVID-19 pandemic the
physical functioning of the Court was required to be
suspended. This was in order to avoid mass gathering in the
Supreme Court and to prevent outbreak of pandemic.
However, immediately after suspension of physical hearing,
the Court started functioning through video conferencing.
From 23.3.2020 till 4.8.2020, various benches of the Court
have been sitting regularly and discharging their duties
through video conferencing. The total number of sittings that
the various benches had from 23.3.2020 till 4.8.2020 is 879.
During this period, the Court has heard 12748 matters. In the
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said period, this Court has dealt with 686 writ petitions filed
under Article 32 of the Constitution of India.
64. It can thus be clearly seen, that the statement, that
the CJI has kept the SC in lockdown mode denying citizens
their fundamental rights to access justice is patently false. It
may not be out of place to mention, that the alleged contemnor
No.1 has himself appeared on various occasions in number of
matters through video conferencing. Not only that, but even
in his personal capacity the alleged contemnor No.1 has taken
recourse to the access of justice by approaching this Court in
a petition under Article 32 of the Constitution being Writ
Petition (Criminal) No.131 of 2020, challenging the First
Information Report lodged against him at Bhaktinagar Police
Station, Rajkot, Gujarat, wherein this Court had passed the
following order on 1.5.2020:
“The Court is convened through video
conferencing.
Issue notice.
In the meantime, no coercive action be
taken against the petitioner in First
Information Report No.11209052200180
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lodged on 12th April, 2020 under Sections
295A/505(1)(b), 34 and 120B of the IPC
registered at the Police Station
Bhaktinagar, Rajkot, Gujarat.”
In this premise, making such wild allegation thereby
giving an impression, that the CJI is enjoying riding an
expensive bike, while he keeps the SC in lockdown mode and
thereby denying citizens their fundamental right to access
justice, is undoubtedly false, malicious and scandalous. It has
the tendency to shake the confidence of the public at large in
the institution of judiciary and the institution of the CJI and
undermining the dignity and authority of the administration of
justice. We are unable to accept the contention of the alleged
contemnor No.1, that the said statement was a bona fide
criticism made by him on account of his anguish of non
functioning of the courts physically. His contention, that on
account of non-physical functioning of the Supreme Court for
the last more than three months, the fundamental rights of
citizens, such as those in detention, those destitute and poor,
and others facing serious and urgent grievances were not being
addressed or taken up for redressal, as stated herein above, is
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false to his own knowledge. He has made such a scandalous
and malicious statement having himself availed the right of an
access to justice during the said period, not only as a lawyer
but also as a litigant.
65. Insofar as the second tweet is concerned, even
according to the alleged contemnor No.1, the tweet is in three
distinct parts. According to him, the first part of the tweet
contains his considered opinion, that democracy has been
substantially destroyed in India during the last six years. The
second part is his opinion, that the Supreme Court has played
a substantial role in allowing the destruction of the democracy
and the third part is his opinion regarding the role of the last
4 Chief Justice’s in particular in allowing it.
66. We are not concerned with the first part of the tweet
since it is not concerned with this Court. However, even on his
own admission, he has expressed his opinion, that the
Supreme Court has played a substantial role in allowing the
destruction of democracy and further admitted, that the third
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part is regarding the role of last four Chief Justices in
particular, in allowing it.
67. It is common knowledge, that the emergency era has
been considered as the blackest era in the history of Indian
democracy. The impression which the said tweet tends to give
to an ordinary citizen is, that when the historians in future
look back, the impression they will get is, that in the last six
years the democracy has been destroyed in India without even
a formal emergency and that the Supreme Court had a
particular role in the said destruction and the last four Chief
Justices of India had more particular role in the said
destruction.
68. There cannot be any manner of doubt, that the said
tweet is directed against the Supreme Court, tending to give an
impression, that the Supreme Court has a particular role in
the destruction of democracy in the last six years and the last
four CJIs had a more particular role in the same. It is clear,
that the criticism is against the entire Supreme Court and the
last four CJIs. The criticism is not against a particular judge
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but the institution of the Supreme Court and the institution of
the Chief Justice of India. The impression that the said tweet
tends to convey is that the judges who have presided in the
Supreme Court in the period of last six years have particular
role in the destruction of Indian democracy and the last four
CJIs had a more particular role in it.
69. As discussed herein above, while considering as to
whether the said criticism was made in a good faith or not the
attending circumstances are also required to be taken into
consideration. One of the attending circumstances is the
extent of publication. The publication by tweet reaches
millions of people and as such, such a huge extent of
publication would also be one of the factors that requires to be
taken into consideration while considering the question of good
faith.
70. Another circumstance is, the person who makes such
a statement. In the own admission, the alleged contemnor
No.1 has been practicing for last 30 years in the Supreme
Court and the Delhi High Court and has consistently taken up
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many issues of public interest concerning the health of our
democracy and its institutions and in particular the
functioning of our judiciary and especially its accountability.
The alleged contemnor being part of the institution of
administration of justice, instead of protecting the majesty of
law has indulged into an act, which tends to bring disrepute to
the institution of administration of justice. The alleged
contemnor No.1 is expected to act as a responsible officer of
this Court. The scurrilous allegations, which are malicious in
nature and have the tendency to scandalize the Court are not
expected from a person, who is a lawyer of 30 years standing.
In our considered view, it cannot be said that the above tweets
can be said to be a fair criticism of the functioning of the
judiciary, made bona fide in the public interest.
71. As held by this Court in earlier judgments, to which
we have referred herein above, the Indian judiciary is not only
one of pillars on which the Indian democracy stands but is the
central pillar. The Indian Constitutional democracy stands on
the bedrock of rule of law. The trust, faith and confidence of
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the citizens of the country in the judicial system is sine qua
non for existence of rule of law. An attempt to shake the very
foundation of constitutional democracy has to be dealt with an
iron hand. The tweet has the effect of destabilising the very
foundation of this important pillar of the Indian democracy.
The tweet clearly tends to give an impression, that the
Supreme Court, which is a highest constitutional court in the
country, has in the last six years played a vital role in
destruction of the Indian democracy. There is no manner of
doubt, that the tweet tends to shake the public confidence in
the institution of judiciary. We do not want to go into the
truthfulness or otherwise of the first part of the tweet,
inasmuch as we do not want to convert this proceeding into a
platform for political debate. We are only concerned with the
damage that is sought to be done to the institution of
administration of justice. In our considered view, the said
tweet undermines the dignity and authority of the institution
of the Supreme Court of India and the CJI and directly affronts
the majesty of law.
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72. Indian judiciary is considered by the citizens in the
country with the highest esteem. The judiciary is considered
as a last hope when a citizen fails to get justice anywhere. The
Supreme Court is the epitome of the Indian judiciary. An
attack on the Supreme Court does not only have the effect of
tending an ordinary litigant of losing the confidence in the
Supreme Court but also may tend to lose the confidence in the
mind of other judges in the country in its highest court. A
possibility of the other judges getting an impression that they
may not stand protected from malicious attacks, when the
Supreme Court has failed to protect itself from malicious
insinuations, cannot be ruled out. As such, in order to protect
the larger public interest, such attempts of attack on the
highest judiciary of the country should be dealt with firmly. No
doubt, that the Court is required to be magnanimous, when
criticism is made of the judges or of the institution of
administration of justice. However, such magnanimity cannot
be stretched to such an extent, which may amount to
weakness in dealing with a malicious, scurrilous, calculated
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attack on the very foundation of the institution of the judiciary
and thereby damaging the very foundation of the democracy.
73. The Indian Constitution has given a special role to the
constitutional courts of this country. The Supreme Court is a
protector of the fundamental rights of the citizens, as also is
endowed with a duty to keep the other pillars of democracy i.e.
the Executive and the Legislature, within the constitutional
bounds. If an attack is made to shake the confidence that the
public at large has in the institution of judiciary, such an
attack has to be dealt with firmly. No doubt, that it may be
better in many cases for the judiciary to adopt a
magnanimously charitable attitude even when utterly
uncharitable and unfair criticism of its operations is made out
of bona fide concern for improvement. However, when there
appears some scheme and design to bring about results which
have the tendency of damaging the confidence in our judicial
system and demoralize the Judges of the highest court by
making malicious attacks, those interested in maintaining
high standards of fearless, impartial and unbending justice
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will have to stand firmly. If such an attack is not dealt with,
with requisite degree of firmness, it may affect the national
honour and prestige in the comity of nations. Fearless and
impartial courts of justice are the bulwark of a healthy
democracy and the confidence in them cannot be permitted to
be impaired by malicious attacks upon them. As observed by
Justice Krishna Iyer in the case of Re: S. Mulgaokar (supra),
on which judgment, Shri Dave has strongly relied on, if the
Court considers the attack on the judge or judges scurrilous,
offensive, intimidatory or malicious beyond condonable limits,
the strong arm of the law must, in the name of public interest
and public justice, strike a blow on him who challenges the
supremacy of the rule of law by fouling its source and stream.
74. The summary jurisdiction of this Court is required to
be exercised not to vindicate the dignity and honour of the
individual judge, who is personally attacked or scandalised,
but to uphold the majesty of the law and of the administration
of justice. The foundation of the judiciary is the trust and the
confidence of the people in its ability to deliver fearless and
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impartial justice. When the foundation itself is sought to be
shaken by acts which tend to create disaffection and disrespect
for the authority of the court by creating distrust in its
working, the edifice of the judicial system gets eroded. The
scurrilous/malicious attacks by the alleged contemnor No.1
are not only against one or two judges but the entire Supreme
Court in its functioning of the last six years. Such an attack
which tends to create disaffection and disrespect for the
authority of this Court cannot be ignored. Recently, the
Supreme Court in the cases of National Lawyers Campaign
for Judical Transparency and Reforms and others vs.
Union of India and others15 and Re: Vijay Kurle & Ors
(supra) has suo motu taken action against Advocates who had
made scandalous allegations against the individual
judge/judges. Here the alleged contemnor has attempted to
scandalise the entire institution of the Supreme Court. We
may gainfully refer to the observations of Justice Wilmot in R.
v. Almon16 made as early as in 1765:
15 2019 SCC Online SC 411
16 1765 Wilmot’s Notes 243 : 97 ER 94
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“…. And whenever men’s allegiance to the
law is so fundamentally shaken, it is the
most fatal and most dangerous
obstruction of justice, and, in my opinion,
calls out for a more rapid and immediate
redress than any other obstruction
whatsoever; not for the sake of the Judges,
as private individuals, but because they
are the channels by which the King’s
justice is conveyed to the people.”
75. The tweets which are based on the distorted facts, in
our considered view, amount to committing of ‘criminal
contempt’.
76. Insofar as the alleged contemnor No.2 is concerned,
we accept the explanation given by it, that it is only an
intermediary and that it does not have any control on what the
users post on the platform. It has also showed bona fides
immediately after the cognizance was taken by this Court as it
has suspended both the tweets. We, therefore, discharge the
notice issued to the alleged contemnor No.2.
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77. In the result, we hold alleged contemnor No.1 – Mr.
Prashant Bhushan guilty of having committed criminal
contempt of this Court.
......................J.
[ARUN MISHRA]
......................J.
[B.R. GAVAI]
……......................J.
[KRISHNA MURARI]
NEW DELHI;
AUGUST 14, 2020
