PRASHANT BHUSHAN=
The contemnor not only gave wide publicity to the second statement submitted before this Court on 24.08.2020 prior to the same being tendered to the Court, but also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of this Court.
If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country.
However, by showing magnanimity, instead of imposing any severe puishment, we are sentencing the contemnor with a nominal fine of Re.1/ (Rupee one).,
therefore, sentence the contemnor with a fine or Re.1/ (Rupee one) to be deposited with the Registry of this Court by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
IN RE:
PRASHANT BHUSHAN AND ANR.
J U D G M E N T
1. Heard Shri K.K. Venugopal, learned Attorney General for India, Dr.
Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior
counsel, and the contemnorShri Prashant Bhushan.
2. After having adjudged Shri Prashant Bhushan, Advocate, guilty of
contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and Shri
Dushyant Dave, learned senior counsel appearing for the contemnorShri
Prashant Bhushan raised the following arguments:
(i) That the copy of the petition on the basis of which the suo motu
cognizance was taken by this Court with respect to first tweet, filed by
Shri Mahek Maheshwari, was not furnished, in spite of the application
having been filed by the contemnor. Thus, it could not be ascertained
whether the complaint was mala fide or even personally or politically
motivated.
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(ii) The factors relevant for sentencing are the offender, the offence, the
convicting judgment, statutory or other defences relating to a substantial
interference with justice, truth, bona fides, and public interest in
disclosure.
(iii) The contemnor is a lawyer of 35 years of standing, who has
pursued public interest litigation successfully at some personal and
professional cost. He got appreciation from the Court. He is a founding
member of Campaign for Judicial Accountability, which includes several
senior counsel of repute. He has brought certain corruption cases and
causes to the Court such as V. Ramaswamy case, Coal Mining case, Goa
Mining case, Orissa Mining case, an issue relating to the appointment of
CVC, CBI Director’s case, Lok Pal case etc. In the public interest, he has
filed several petitions like Narmada case, Bofors case, Police Reform case,
Passive Euthanasia case, HPCL Privatization case, Street Vendors case,
Rickshaw Pullers case, Singur Land Acquisition case, Draught
Management, Gram Nyayalaya, and Electoral Bond cases.
(iv) The nature of offences is another ingredient to be taken into
consideration while imposing sentence; (i) Offence must be clear without
ambiguity. (ii) The potential offender must know/understand whether
he/she is guilty of the offence. The offence of scandalizing the Court is
notoriously vague. It has not been defined by the Statute. It is called
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"vague and wandering” jurisdiction. Reliance has been placed on
Shreya Singhal v. Union of India, 2015 (5) SCC 1. Such an offence
has to be handled with care and used sparingly, as observed in
Baradakanta Mishra v. Registrar of Orissa High Court & another,
(1974) 1 SCC 374. There is inconsistency in various decisions relating to
the conviction and sentence due to vagueness.
(v) The very jurisdiction of contempt is scandalizing and is vague and
colonial. Several decisions have been relied upon where the Court has
not even initiated contempt in such matters. In some of the countries,
the contempt law being an archaic law has already been done away with.
There cannot be any compromise with the Right to Free Speech and
Opinions.
(vi) In the convicting judgment, reliance was placed on the decisions in
P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC 167), Brahma
Prakash Sharma and Others v. The State of Uttar Pradesh, 1953 SCR
1169, and In Re: Hira Lal Dixit and two others, (1955) 1 SCR 677.
The decision in E.M. Sankaran Namboodripad v. T. Narayanan
Nambiar, (1970) 2 SCC 325, has been superseded by P.N. Duda (supra).
In so far as the decision in E.M. Sankaran Namboodripad (supra) is
concerned, the same would not be relevant inasmuch as the same stands
3
overruled by P.N. Duda (supra). Similarly, reliance on the judgment in
C. K. Daphtary & Ors. v. O. P. Gupta & Ors., (1971) 1 SCC 626, is also
not relevant inasmuch as the said judgment is delivered prior to
amendment of Contempt of Courts Act, 1971 (for short ‘the Act’), vide
which Section 13(b) was brought on statute book, so as to allow truth as
a defence. The Court has to exercise jurisdiction with great care and
caution and only in cases that are clear beyond reasonable doubt. In
Re: S. Mulgaokar, (1978) 3 SCC 339, various guidelines have been laid
down by this Court. They are, free market of ideas, fair criticism in good
faith when it is in the public interest, the surrounding circumstances,
the person who is making the comments, his knowledge in the field
regarding which the comments are made and the intended purpose.
After considering all these guidelines, an advocate should be punished by
exercising extreme caution only in the case where the tendency is to
create disaffection and disrepute to erode the judicial system. Though
the convicting judgment, on the one hand cites various decision on
balance, on the contrary holds the contemnor guilty for the fair criticism
made by him.
(vii) There is no conflict between the constitutional jurisdiction under
Articles 129, 215 of the Constitution of India, and the Contempt of
Courts Act. In Pallav Sheth v. Custodian & Ors., (2001) 7 SCC 549, it
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was laid down that the powers of punishment for contempt under Article
129 of the Constitution of India have to be exercised in consonance with
the Contempt of Courts Act, 1971.
(viii) Besides that, provisions in Sections 8 and 9 and newly amended
Section 13(a) of the Act requires that the Court cannot impose a sentence
unless it is satisfied that contempt is of such a nature that substantially
interferes or tends substantially to interfere with the due course of
justice. Thus, special responsibility is cast on the Court to examine the
extent of interference. The provisions of newly amended Section 13(a)
amply make it clear that the Court is required to assess the situation
itself. However, in the convicting judgment no such inquiry has taken
place and as such an order of sentence cannot be passed. Truth should
ordinarily be allowed as a defence unless the Court finds, that it is only a
camouflage to escape the consequences of the deliberate attempt of
scandalizing the Court. Section 13 of the Act enables the Court to permit
justification by truth as a valid defence in any contempt proceedings if it
satisfied that such a defence is in the public interest and the request for
invoking the defence is bona fide. Reliance is placed on Subramanian
Swamy v. Arun Shourie, (2014) 12 SCC 344. In so far as the first
tweet is concerned, the tweet is an expression of opinion by Shri
Prashant Bhushan that due to the Courts not functioning physically the
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litigants are deprived of real access to justice. It is submitted that this
opinion also finds support from the observations made by this court In
Re: Financial aid for members of Bar affected by a pandemic (In Suo
Moto Writ Petition No.8/2020) that due to the suspension of physical
functioning of the Courts, the lawyers have been deprived of sources of
earning their livelihood.
(ix) With respect to the second tweet, this is again an expression of
opinion by Shri Prashant Bhushan. It was submitted that this opinion
has been shared by many others including the retired judges of this
Court. Reference was also made to the Press Conference held on
12.01.2018 by the Sitting Judges of this Court. The role of the Supreme
Court and the last four Chief Justices is detailed in the reply affidavit.
The reply is backed up by details and materials and how and why Shri
Bhushan came to form opinion reflected in the tweet. The defence of
truth was not examined at all in the convicting judgment and the same
needs to be examined at the stage of sentencing in compliance with
Section 13(b) of the Act.
(x) Article 19(1)(a) guarantees Freedom of Speech and Expression.
Provisions in Articles 129 and 142(2) of the Constitution of India, cannot
override Article 19(1)(a) and 19(2) of the Constitution of India. Free
Speech is a highly valued right and is essential for democracy. In a
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democracy, there is a right to dissent. There is the freedom to build an
opinion. Publication in good faith is suggested for the Press, as defined
in General Clauses Act in Section 3(22), it is a valid defence, if done
honestly, whether it is done negligently or not.
(xi) It was submitted that while applying the Principle of Proportionality
the balance will have to tilt in favour of the rights as against restrictions,
inasmuch as the rights are fundamental in nature. The opinions of the
contemnor were bona fide and devoid of malice. Thus, the decision with
respect to the conviction is required to be recalled, and in such an event,
no sentence can be imposed. It was submitted that the judgments are
open to scrutiny and this Court should welcome outspoken comments
including criticism by ordinary citizen.
(xii) Debarring an advocate from appearing is to be done only in rare
cases, as a last resort, only after giving requisite notice for the same, as
held in R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106.
(xiii) There should not be an attempt to coerce the contemnor into
making an apology on the basis that nothing else would be acceptable.
3. At the beginning of the proceedings itself, we had called upon Shri
K.K. Venugopal, learned Attorney General for India, to address us. In the
morning session, we have heard him at great length. Learned Attorney
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General stated that this Court, by showing magnanimity, should not
impose any sentence on Shri Prashant Bhushan. He submitted that the
tweets made by Shri Prashant Bhushan could be considered as bona fide
criticism in order to seek improvement in the functioning of the
institution. He further stated, that taking into consideration the causes
represented by Shri Prashant Bhushan in various public interest
litigation and the service rendered by him to different classes of society
by bringing their issues to the notice of this Court, the Court should
consider not imposing any sentence on him.
4. When controverted with various statements made by the contemnor
in the affidavit in reply, the learned Attorney General fairly conceded that
such statements were not warranted.
5. He suggested that such statements be either withdrawn by the
contemnor or should be taken off from the pleadings. When further
confronted with the Contempt Petition filed by the learned Attorney
General in one of the proceedings against the very same contemnor, the
learned Attorney General submitted that since Shri Prashant Bhushan,
on a piece of paper, had expressed his regret, he expressed desire not to
pursue the said contempt proceedings. The learned Attorney General
attempted to read out the statement made by Shri Prashant Bhushan in
the contempt proceedings, which was initiated in the year 2009, wherein
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Shri Prashant Bhushan had expressed his regret. However, when it was
pointed out to the learned Attorney General that the said statement was
not pertaining to the present proceedings but earlier proceedings, the
learned Attorney General stated that when Shri Prashant Bhushan had
expressed regret in the other proceedings, there is no reason as to why
he should not express regret in the present proceedings also. He stated
that the same could be considered as regret in the present proceedings
also. We had also pointed out to the learned Attorney General that the
contemnor was pressing the statement made in the affidavit and was
raising a plea of truth as a defence. In such circumstances, whether it
would be appropriate on the part of this Court to take off the said
statements from the pleadings. The learned Attorney General, faced with
this situation, stated that unless the contemnor withdraws the said
statements, in view of the provisions of Section 13(b) of the Act, the
statements cannot be taken off.
6. After hearing the learned Attorney General, we heard Dr. Rajeev
Dhavan, learned senior counsel appearing for the contemnor, at length.
The submissions made on behalf of Dr. Dhavan, learned senior counsel,
have already been stated hereinabove.
7. After Dr. Dhavan, learned senior counsel completed his arguments,
we again called upon learned Attorney General, to address us by taking
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into consideration the submissions made on behalf of contemnor by Dr.
Dhavan, learned senior counsel. Learned Attorney General was fair
enough to state that insistence on the part of the contemnor to press into
service various objectionable statements made in the pleading was not
warranted and also not justifiable. He fairly stated that in the interest of
the administration of justice, the contemnor ought not to have made
such statements. He further stated that such statements, which were
also concerning various sitting and retired judges of this Court, including
the past and present Chief Justices, were totally unjustifiable,
specifically so when the retired or sitting judges were not in a position to
defend themselves. He further submitted that no verdict could be passed
without hearing such Judges, and as such, the process would be
endless. He submitted that such a defence cannot be looked into. From
the tenor of the submission made by the learned Attorney General, it was
apparent that the learned Attorney General was at pains due to the
statements made by the contemnor in the affidavit.
8. However, learned Attorney General appealed to the magnanimity of
this Court and submitted that instead of sentencing the contemnor with
any sentence this Court should magnanimously warn him, to be careful
while making any statement with regard to the judges or the institution
of administration of justice and he should be further warned not to
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repeat any such act hereafter. He stated that apart from sending a right
message to the contemnor, it will also send an appropriate message to all
the members of the Bar as well as all citizens throughout the country
that one should be careful and cautious while making any statement
with regard to the judges or the institution of administration of justice.
The learned Attorney General reiterated on several occasions that
magnanimity is required to be shown by this Court. He further submitted
that this Court by showing magnanimity, should give a quietus to this
matter by giving warning to him instead of sentencing him.
9. During the course of the arguments, it was also brought to the
notice of Shri Dhavan, learned senior counsel, the fact that prior to the
supplementary statement of the contemnor dated 24.08.2020, before it
being filed in the Court, it was widely published in media on
24/25.08.2020. It was also brought to the notice of Dr. Dhavan, learned
senior counsel, that the contemnor had made various statements with
regard to the present proceedings either in the press interviews or in the
webinars, which have the effect of influencing the present proceedings
and as to whether such an act at the behest of a litigant was permissible
in law.
10. Dr. Dhavan, learned senior counsel, fairly stated that publication of
the supplementary statement of the contemnor in various print as well
11
as other media in advance was not proper, and he also stated that no
lawyer or litigant should either give an interview, talk to the press or
make any statement with regard to pending litigation before any Court.
He submitted that though a fair criticism of judgment after the judgment
was pronounced was permissible in law, making any statement or giving
press interviews during the pendency of the litigation was not
permissible.
11. When Dr. Dhavan, learned senior counsel was confronted with the
situation as to how the sitting, as well as retired judges who are not
supposed to speak to anyone or to give interviews can defend the
allegations made against them, Dr. Dhavan responded that though this
Court should not reprimand the contemnor for the tweets made by him,
this Court should lay down guidelines for the precautions to be observed
by the lawyers and litigants while making any statements with respect to
the judges and the institution of administration of justice. He submitted
that this, apart from giving a right signal to the contemnor, would also
give a signal to all the members of the Bar in the country.
12. Dr. Dhavan, learned senior counsel, also submitted that we should
consider the criticism made by the various persons in the media, and in
case any punishment is inflicted, the Court will have to face further
criticism.
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In Re: Defence
13. It is urged by Dr. Dhavan, learned senior counsel, that defence of
the contemnor had not been taken into consideration while convicting
him for criminal contempt. He pressed the defence in service to be
examined before imposing any sentence. We propose to examine the
defence. However, before we do so, to put the record straight, it is
necessary to mention that Shri Dave, learned senior counsel appearing
for Shri Prashant Bhushan, while arguing on 05.08.2020, after reading
few lines from the affidavit in reply upto paragraph 38 stated that he
would not go to the defence taken as reading of that would further
malign the reputation of this Court. Since he did not press the defence
into service, there was no occasion to take the same into consideration,
specifically, in view of the aforesaid statement made by the learned
senior counsel.
14. It will be relevant to refer to the statement made by the contemnor
which was made and read out before this Court by the contemnor on
20.08.2020, which reads as under:
“I have gone through the judgment of this Hon'ble
Court. I am pained that I have been held guilty of committing
contempt of the Court whose majesty I have tried to uphold —
not as a courtier or cheerleader but as a humble guard — for
over three decades, at some personal and professional cost. I
am pained, not because I may be punished, but because I
have been grossly misunderstood.
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I am shocked that the court holds me guilty of
"malicious, scurrilous, calculated attack” on the institution of
administration of justice. I am dismayed that the Court has
arrived at this conclusion without providing any evidence of
my motives to launch such an attack. I must confess that I am
disappointed that the court did not find it necessary to serve
me with a copy of the complaint on the basis of which the suo
motu notice was issued, nor found it necessary to respond to
the specific averments made by me in my reply affidavit or the
many submissions of my counsel.
I find it hard to believe that the Court finds my tweet
"has the effect of destabilizing the very foundation of this
important pillar of Indian democracy". I can only reiterate that
these two tweets represented my bonafide beliefs, the
expression of which must be permissible in any democracy.
Indeed, public scrutiny is desirable for healthy functioning of
judiciary itself. I believe that open criticism of any institution
is necessary in a democracy, to safeguard the constitutional
order. We are living through that moment in our history when
higher principles must trump routine obligations, when saving
the constitutional order must come before personal and
professional niceties, when considerations of the present must
not come in the way of discharging our responsibility towards
the future. Failing to speak up would have been a dereliction
of duty, especially for an officer of the court like myself.
My tweets were nothing but a small attempt to discharge
what I considered to be my highest duty at this juncture in the
history of our republic. I did not tweet in a fit of absence
mindedness. It would be insincere and contemptuous on my
part to offer an apology for the tweets that expressed what was
and continues to be my bonafide belief. Therefore, I can only
humbly paraphrase what the father of the nation Mahatma
Gandhi had said in his trial: I do not ask for mercy. I do not
appeal to magnanimity. I am here, therefore, to cheerfully
submit to any penalty that can lawfully be inflicted upon me
for what the Court has determined to be an offence, and what
appears to me to be the highest duty of a citizen.”
15. The contemnor, in the statement made in this Court on
20.08.2020, stated that the Court did not consider it necessary to
respond to the specific averments made by him in the reply affidavit. The
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contemnor was present along with his counsel, and what was urged was
taken into consideration. When we had heard Shri Dave, learned senior
counsel appearing on behalf of the contemnor, on 05.08.2020, the
contemnor was very much present there and we had taken into
consideration the submissions which were made in the presence of the
contemnor.
16. After the judgment of conviction, when this Court had granted time
to the contemnor to submit unconditional apology, if he so desired, the
supplementary statement has been made by Shri Prashant Bhushan on
24.08.2020 to the following effect:
“It is with deep regret that I read the order of this
Hon’ble Court dated 20th of August. At the hearing the court
asked me to take 23 days to reconsider the statement I made
in the court. However, the order subsequently states: “We
have given time to the contemnor to submit unconditional
apology, if he so desires.”
I have never stood on ceremony when it comes to
offering an apology for any mistake or wrongdoing on my part.
It has been a privilege for me to have served this institution
and bring several important public interest causes before it. I
live with the realisation that I have received from this
institution much more than I have had the opportunity to give
it. I cannot but have the highest regard for the institution of
the Supreme Court.
I believe that the Supreme Court is the last bastion of
hope for the protection of fundamental rights, the watchdog
institutions and indeed for constitutional democracy itself. It
has rightly been called the most powerful court in the
democratic world, and often an exemplar for courts across the
globe. Today in these troubling times, the hopes of the people
of India vest in this Court to ensure the rule of law and the
Constitution and not an untrammelled rule of the executive.
15
This casts a duty, especially for an officer of this Court
like myself, to speak up, when I believe there is a deviation
from its sterling record. Therefore, I express myself in good
faith, not to malign the Supreme Court or any particular Chief
Justice, but to offer constructive criticism so that the court
can arrest any drift away from its longstanding role as a
guardian of the Constitution and custodian of people’s rights.
My tweets represented this bonafide belief that I
continue to hold. Public expression of these beliefs was I
believe, in line with my higher obligations as a citizen and a
loyal officer of this court. Therefore, an apology for expression
of these beliefs, conditional or unconditional, would be
insincere. An apology cannot be mere incantation and any
apology has to, as the court has itself put it, be sincerely
made. This is specially so when I have made the statements
bonafide and pleaded truths with full details, which have not
been dealt with by the Court. If I retract a statement before
this court that I otherwise believe to be true or offer an
insincere apology, that in my eyes would amount to the
contempt of my conscience and of an institution that I hold in
highest esteem.”
17. In both the statements he has reiterated that “I have made
statements bona fide and pleaded truths with full details which have not
been dealt with by the Court”.
18. Without going into the scope of the aspects to be examined while
sentencing, we propose to consider the defence taken by the contemnor
in his reply affidavit.
19. For appreciating the submission made by the contemnor it will be
relevant to refer to Section 13 of the Amended Act of 1971, as amended
in 2006, which reads thus:
16
“13. Contempts not punishable in certain cases –
Notwithstanding anything contained in any law for the time
being in force –
(a) no court shall impose a sentence under this Act for a
contempt of court unless it is satisfied that the contempt is
of such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice;
(b) the court may permit, in any proceeding for contempt of
court, justification by truth as a valid defence if it is
satisfied that it is in public interest and the request for
invoking the said defence is bona fide.”
20. The aforesaid provision would show that for considering the truth
as valid defence there is a twin requirement. That such a defence is in
public interest and that the request for invoking the said defence is bona
fide.
21. The sine qua non for considering the truth as a valid defence are
that the Court should be satisfied that defence is in the public interest
and the request for invoking the said defence is bona fide. Be that as it
may, since the contemnor is insisting that at this stage also the Court is
required to take truth as a defence into consideration, we would be
required to consider the same, lest the contemnor feels that we have
avoided its consideration.
22. In Indirect Tax Practitioners’ Association v. R.K. Jain, (2010) 8
SCC 281, it was held thus:
17
“39. The matter deserves to be examined from another
angle. The substituted Section 13 represents an important
legislative recognition of one of the fundamentals of our
value system i.e. truth. The amended section enables the
court to permit justification by truth as a valid defence in
any contempt proceeding if it is satisfied that such defence
is in public interest and the request for invoking the defence
is bona fide. In our view, if a speech or article, editorial, etc.
contains something which appears to be contemptuous and
this Court or the High Court is called upon to initiate
proceedings under the Act and Articles 129 and 215 of the
Constitution, the truth should ordinarily be allowed as a
defence unless the Court finds that it is only a camouflage
to escape the consequences of deliberate or malicious
attempt to scandalise the court or is an interference with the
administration of justice. Since, the petitioner has not even
suggested that what has been mentioned in the editorial is
incorrect or that the respondent has presented a distorted
version of the facts, there is no warrant for discarding the
respondent’s assertion that whatever he has written is
based on true facts and the sole object of writing the
editorial was to enable the authorities concerned to take
corrective/remedial measures.
42. In our view, a person like the respondent can
appropriately be described as a whistleblower for the system
who has tried to highlight the malfunctioning of an
important institution established for dealing with cases
involving revenue of the State and there is no reason to
silence such a person by invoking Articles 129 or 215 of the
Constitution or the provisions of the Act.”
23. In Subramanian Swamy (supra), this Court approved the decision
rendered in Indirect Tax Practitioners’ Association v. R.K. Jain (supra)
and observed:
“13. The legal position with regard to truth as a defence in
contempt proceedings is now statutorily settled by Section
13 of the 1971 Act (as substituted by Act 6 of 2006). The
Statement of Objects and Reasons for the amendment of
Section 13 by Act 6 of 2006 read as follows:
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“1. The existing provisions of the Contempt of
Courts Act, 1971 have been interpreted in various
judicial decisions to the effect that truth cannot be
pleaded as a defence to a charge of contempt of court.
2. The National Commission to Review the Working
of the Constitution [NCRWC] has also in its report,
inter alia, recommended that in matters of contempt, it
shall be open to the court to permit a defence of
justification by truth.
3. The Government has been advised that the
amendments to the Contempt of Courts Act, 1971 to
provide for the above provision would introduce
fairness in procedure and meet the requirements of
Article 21 of the Constitution.
4. Section 13 of the Contempt of Courts Act, 1971
provides certain circumstances under which contempt
is not punishable. It is, therefore, proposed to
substitute the said section, by an amendment.
5. The Contempt of Courts (Amendment) Bill, 2003
was introduced in the Lok Sabha on 852003 and the
same was referred to the Departmentrelated
Parliamentary Standing Committee on Home Affairs for
examination. The Hon’ble Committee considered the
said Bill in its meeting held on 292003. However, with
the dissolution of the 13th Lok Sabha, the Contempt of
Courts (Amendment) Bill, 2003 lapsed. It is proposed to
reintroduce the said Bill with modifications of a
drafting nature.”
15. A twoJudge Bench of this Court in R.K. Jain [(2010)
8 SCC 281] had an occasion to consider Section 13 of the
1971 Act, as substituted by Act 6 of 2006. In para 39 the
Court said: (SCC p. 311)
“39. … The substituted Section 13 represents an
important legislative recognition of one of the
fundamentals of our value system i.e. truth. The
amended section enables the court to permit
justification by truth as a valid defence in any
contempt proceeding if it is satisfied that such defence
is in public interest and the request for invoking the
defence is bona fide. In our view, if a speech or article,
editorial, etc. contains something which appears to be
contemptuous and this Court or the High Court is
called upon to initiate proceedings under the Act and
Articles 129 and 215 of the Constitution, the truth
19
should ordinarily be allowed as a defence unless the
Court finds that it is only a camouflage to escape the
consequences of deliberate or malicious attempt to
scandalise the court or is an interference with the
administration of justice. Since, the petitioner has not
even suggested that what has been mentioned in the
editorial is incorrect or that the respondent has
presented a distorted version of the facts, there is no
warrant for discarding the respondent’s assertion that
whatever he has written is based on true facts and the
sole object of writing the editorial was to enable the
authorities concerned to take corrective/remedial
measures.”
Thus, the twoJudge Bench has held that the amended
section enables the Court to permit justification by truth as
a valid defence in any contempt proceedings if it is satisfied
that such defence is in public interest and the request for
invoking the defence is bona fide. We approve the view of the
twoJudge Bench in R.K. Jain [(2010) 8 SCC 281]. Nothing
further needs to be considered with regard to second
question since the amendment in contempt law has
effectively rendered this question redundant.”
24. It was submitted by Dr. Dhavan, learned senior counsel, that the
second tweet was an expression of opinion by Mr. Prashant Bhushan
that the democracy has been substantially destroyed in the country in
the past six years and the Court has also played its role in the same.
However, the Court did not go into the said defence. It was submitted
that the said opinion was carved out on the basis of material which was
placed on record along with the affidavit in reply. However, the said
material was also not taken into consideration by this Court.
25. Learned Attorney General, after being taken through the defence
taken by the contemnor in the reply, fairly stated that contemnor should
20
be asked to withdraw such defences and it should be taken off the
records.
26. With regard to the averments made in the affidavit in reply of Shri
Prashant Bhushan, the learned Attorney General submitted that the
affidavit contains various allegations against several retired Chief
Justices as well as the sitting and retired Judges of this Court. He
submitted that such a defence cannot be examined without hearing the
Judges against whom such allegations are made and therefore such a
defence cannot be considered unless the persons against whom
allegations are made are heard. He, therefore, stated that the contemnor
should express regret for taking such a defence and withdraw the same.
On the examination of the defence of the contemnor, we concur with the
submission made by the learned Attorney General that the defence
cannot be said to be either in the public interest or a bona fide one. In
this respect it will also be pertinent to note that when Mr. Dave, learned
senior counsel, was heard in the presence of the contemnor, on
05.08.2020, he fairly stated that he would not read further averments in
the affidavit in reply of the contemnor because it will further malign the
reputation of this Court. Thus, we endorse the view of learned Attorney
General that the defence should be taken off the record and, in our
21
opinion, it is neither bona fide nor in the public interest and as such it
fails to clear the twin test, which we are examining.
27. One of the reasons why we hold so is that though the tweet is of
two lines, the affidavit in reply refers to series of allegations made by the
contemnor with regard to the functioning of a large number of retired as
well as sitting Judges including the Chief Justices as to their role on the
judicial as well as on administrative side. If the averments are
considered for taking truth as a defence, it would amount nothing else
but the aggravation of the contempt.
28. We are of the view that, in the circumstances, the defence taken
cannot be said to be either in the public interest or bona fide one. On
the contrary, it is more derogatory to the reputation of this Court and
would amount to further scandalizing and bringing administration of
justice in disrepute, in which the common citizen of this country has
faith and approaches this Court as a last resort for getting justice.
29. He averred that this Court had surrendered to the majoritarian
executive and that when majoritarian executive was acting in tyranny,
the Supreme Court has not been able to stand to correct the executive.
30. The averment in the affidavit also referred to formation of the
Benches by the Chief Justice. There is reference to various cases dealt
22
with by 9Judges and 5Judges of this Court and has casted aspersions
on the entire justice delivery system and on a large number of Judges.
31. He has further averred with respect to the withdrawal of the case
which was filed questioning the decision of rejection of impeachment
motion moved against the then Chief Justice. He has also referred to
various matters pending adjudication before this Court and also
adversely commented on the functioning of this Court. He has raised
eyebrows on the Ayodhya verdict and blamed this Court.
32. After going through the various averments made in the affidavit in
reply for supporting truth as defence, we are of the considered view that
the defence taken is neither in the public interest nor bona fide one, but
the contemnor has indulged in making reckless allegations against the
institution of administration of justice. As referred by the learned
Attorney General the averments are based on political consideration, and
therefore in our view cannot be considered to support the case of the
contemnor of truth as a defence.
33. The allegations made are scandalous and are capable of shaking
the very edifice of the judicial administration and also shaking the faith
of common man in the administration of justice.
23
34. Though there is a Freedom of Speech, freedom is never absolute
because the makers of the Constitution have imposed certain restrictions
upon it. Particularly when such Freedom of Speech is sought to be
abused and it has the effect of scandalising the institution as a whole
and the persons who are part of the said institution and cannot defend
themselves publicly, the same cannot be permitted in law. Though a fair
criticism of judgment is permissible in law, a person cannot exceed the
right under Article 19(1)(a) of the Constitution to scandalize the
institution.
35. It is apparent that the contemnor is involved in making allegations
against the retired and sitting Judges. On one hand, our attention was
attracted by Shri Dushyant Dave, learned senior counsel, towards the
norms of judicial conduct which also provide that Judges cannot express
an opinion in the public. The Judges have to express their opinion by
their judgments, and they cannot enter into public debate or go to press.
It is very easy to make any allegation against the Judges in the
newspaper and media. Judges have to be the silent sufferer of such
allegations, and they cannot counter such allegations publicly by going
on public platforms, newspapers or media. Nor can they write anything
about the correctness of the various wild allegations made, except when
they are dealing with the matter. Retired Judges do have the prestige
24
that they have earned by dint of hard work and dedication to this
institution. They are also not supposed to be answering each and every
allegation made and enter into public debate. Thus, it is necessary that
when they cannot speak out, they cannot be made to suffer the loss of
their reputation and prestige, which is essential part of the right to live
with dignity. The Bar is supposed to be the spokesperson for the
protection of the judicial system. They are an integral part of the system.
The Bar and Bench are part of the same system i.e. the judicial system,
and enjoy equal reputation. If a scathing attack is made on the judges, it
would become difficult for them to work fearlessly and with the
objectivity of approach to the issues. The judgment can be criticized.
However, motives to the Judges need not be attributed, as it brings the
administration of justice into disrepute. In Halsbury’s Laws of England,
Fourth Edition, Volume 9, in para 27, it is observed that the
punishment is inflicted, not for the purpose of protecting either the Court
as a whole or the individual Judges of the Court from repetition of the
attack but for protecting the public and especially those who either
voluntarily or by compulsion are subject to the jurisdiction of the Court,
from the mischief they will incur if the authority of the Tribunal is
undermined or impaired. Hostile criticism of the judges or judiciary is
25
definitely an act of scandalizing the Court. Defamatory publication
concerning the Judge or institution brings impediment to justice.
36. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and
Others, (1995) 5 SCC 457, this Court dealt with a matter with respect to
allegation against the conduct of a Judge. A Resolution was passed by
the Bar Council against Judge/Chief Justice of the High Court alleging
misconduct. This Court held that Bar Council cannot make scurrilous
criticism of conduct of the Judge/Chief Justice and pressurise or coerce
him to demit the office. Such action would constitute contempt of court
and affect independence of judiciary which is an essential attribute of
rule of law and also affect judicial individualism. This Court further
observed that, however, where the Bar honestly doubts the conduct of
the Judge/Chief Justice and such doubt is based on authentic and
acceptable material, the proper course for officerbearers of the Bar
Association would be to meet the Judge in camera and apprise him or
approach the Chief Justice of that High Court to deal with the matter
appropriately. When the allegation is against the Chief Justice of the
High Court, Bar Association should directly approach the Chief Justice of
India. Thereafter, the Chief Justice has to take a decision. Until such
decision is taken, the Bar should suspend all further action and await
response for a reasonable period. It was held that independence of the
26
judiciary is an essential attribute of rule of law, which is the basic
feature of the Constitution and that judiciary must be free from not only
executive pressure but also from other pressures. Individual Judge has
to feel secure in view of social demand for active judicial role which he is
required to fulfil. This Court also considered that criticism of the
judiciary is not protected under Article 19(1)(a) of the Constitution. It
was also observed that fair criticism is based on the authentic and
acceptable material permissible but when criticism tends to create
apprehension in the minds of the people regarding integrity, ability and
fairness of the Judge, it amounts to contempt. Such criticism is not
protected under Article 19(1)(a) of the Constitution. It was also observed
that the Judge should maintain high standard of conduct based on high
tradition. It was held thus :
“10. The diverse contentions give rise to the question
whether any Bar Council or Bar Association has the right to
pass resolution against the conduct of a Judge perceived to
have committed misbehaviour and, if so, what is its effect on
independence of the judiciary. With a view to appreciate the
contentions in their proper perspective, it is necessary to
have at the back of our mind the importance of the
independence of the judiciary. In a democracy governed by
rule of law under a written constitution, judiciary is sentinel
on the qui vive to protect the fundamental rights and to
poise even scales of justice between the citizens and the
State or the States inter se. Rule of law and judicial review
are basic features of the Constitution. As its integral
constitutional structure, independence of the judiciary is an
essential attribute of rule of law. In S.P. Gupta v. Union of
India [1981 Supp SCC 87] (SCC p. 221, para 27) this Court
held that if there is one principle which runs through the
27
entire fabric of the Constitution it is the principle of the rule
of law, and under the Constitution it is the judiciary which
is entrusted with the task of keeping every organ of the
State within the limits of the law and thereby making the
rule of law meaningful and effective. Judicial review is one of
the most potent weapons in the armoury of law. The
judiciary seeks to protect the citizen against violation of his
constitutional or legal rights or misuse or abuse of power by
the State or its officers. The judiciary stands between the
citizen and the State as a bulwark against executive
excesses and misuse or abuse of power by the executive. It
is, therefore, absolutely essential that the judiciary must be
free from executive pressure or influence which has been
secured by making elaborate provisions in the Constitution
with details. The independence of judiciary is not limited
only to the independence from the executive pressure or
influence; it is a wider concept which takes within its sweep
independence from any other pressure and prejudices. It
has many dimensions, viz., fearlessness of other power
centres, economic or political, and freedom from prejudices
acquired and nourished by the class to which the judges
belong.
Judicial individualism — Whether needs protection?
11. Independent judiciary is, therefore, most essential when
liberty of citizen is in danger. It then becomes the duty of
the judiciary to poise the scales of justice unmoved by the
powers (actual or perceived) undisturbed by the clamour of
the multitude. The heart of judicial independence is judicial
individualism. The judiciary is not a disembodied
abstraction. It is composed of individual men and women
who work primarily on their own. Judicial individualism, in
the language of Justice Powell of the Supreme Court of
United States in his address to the American Bar
Association, Labour Law Section on 1181976, is “perhaps
one of the last citadels of jealously preserved individualism
…”. Justice Douglas in his dissenting opinion in Stephen S.
Chandler v. Judicial Council of the Tenth Circuit of the United
States [398 US 74] stated:
“No matter how strong an individual judge’s spine,
the threat of punishment — the greatest peril to
judicial independence — would project as dark a
shadow whether cast by political strangers or by
judicial colleagues. A federal judge must be
28
independent of every other judge…. Neither one alone
nor any number banded together can act as censor and
place sanctions on him. It is vital to preserve the
opportunities for judicial individualism.”
27. The Advocates Act, 1961 gave autonomy to a Bar
Council of a State or Bar Council of India and Section 6(1)
empowers them to make such action deemed necessary to
set their house in order, to prevent fall in professional
conduct and to punish the incorrigible as not befitting the
noble profession apart from admission of the advocates on
its roll. Section 6(1)(c) and rules made in that behalf,
Sections 9, 35, 36, 36B and 37 enjoin it to entertain and
determine cases of misconduct against advocates on its roll.
The members of the judiciary are drawn primarily and
invariably from the Bar at different levels. The high moral,
ethical and professional standards among the members of
the Bar are preconditions even for high ethical standards of
the Bench. Degeneration thereof inevitably has its eruption
and tends to reflect the other side of the coin. The Bar
Council, therefore, is enjoined by the Advocates Act to
maintain high moral, ethical and professional standards
which of late is far from satisfactory. Their power under the
Act ends thereat and extends no further. Article 121 of the
Constitution prohibits discussion by the members of
Parliament of the conduct of any Judge of the Supreme
Court or of High Court in the discharge of his duties except
upon a motion for presenting an address to the President
praying for the removal of the Judge as provided under
Article 124(4) and (5) and in the manner laid down under
the Act, the Rules and the rules of business of Parliament
consistent therewith. By necessary implication, no other
forum or fora or platform is available for discussion of the
conduct of a Judge in the discharge of his duties as a Judge
of the Supreme Court or the High Court, much less a Bar
Council or group of practising advocates. They are
prohibited to discuss the conduct of a Judge in the
discharge of his duties or to pass any resolution in that
behalf.
29. In Halsbury’s Laws of England (4th Edn.) Vol. 9, para
27, at p. 21, it is stated that scandalising the court would
mean any act done or writing published which is calculated
to bring a court or a Judge into contempt, or to lower his
authority, or to interfere with the due course of justice or
the lawful process of the court. Scurrilous abuse of a Judge
29
or court, or attacks on the personal character of a Judge,
are punishable contempts. Punishment is inflicted, not for
the purpose of protecting either the court as a whole or the
individual Judges of the court from repetition of the attack,
but for protecting the public, and especially those who
either voluntarily or by compulsion are subject to the
jurisdiction of the court, from the mischief they will incur if
the authority of the tribunal is undermined or impaired. In
consequence, the court has regarded with particular
seriousness allegations of partiality or bias on the part of a
Judge or a court. Criticism of a Judge’s conduct or of the
conduct of a court even if strongly worded, is, however, not
contempt, provided that the criticism is fair, temperate and
made in good faith and is not directed to the personal
character of a Judge or to the impartiality of a Judge or
court.
30. In Oswald’s Contempt of Court (3rd Edn.), 1993, at p. 50
it is stated that libel upon courts is made contempt
“to keep a blaze of glory around them, and to deter people
from attempting to render them contemptible in the eyes
of the public…. A libel upon a court is a reflection upon
the King, and telling the people that the administration of
justice is in weak or corrupt hands, that the fountain of
justice itself is tainted, and consequently that judgments
which stream out of that fountain must be impure and
contaminated.”
A libel upon a Judge in his judicial capacity is a contempt,
whether it concerns what he did in court, or what he did
judicially out of it. At p. 91, it is stated that all publications
which offend against the dignity of the court, or are
calculated to prejudice the course of justice, will constitute
contempt. One of the natures of offences is scandalising the
courts. In Contempt of Court (2nd Edn.) by C.J. Miller at p.
366, Lord Diplock is quoted from Chokolingo v. Attorney
General of Trinidad and Tobago [(1981) 1 All ER 244, 248]
who spoke for the Judicial Committee summarising the
position thus:
“ ‘Scandalising the court’ is a convenient way of
describing a publication which, although it does not
relate to any specific case either past or pending or any
specific Judge, is a scurrilous attack on the judiciary as
a whole, which is calculated to undermine the authority
of the courts and public confidence in the
administration of justice.”
30
In Borrie and Lowe’s Law of Contempt (2nd Edn.) at p. 226 it
is stated that the necessity for this branch of contempt lies
in the idea that without wellregulated laws a civilised
community cannot survive. It is therefore thought important
to maintain the respect and dignity of the court and its
officers, whose task it is to uphold and enforce the law,
because without such respect, public faith in the
administration of justice would be undermined and the law
itself would fall into disrepute. Even in the latest Report on
Contempt of Court by Phillimore Committee to revise the
penal enforcement of contempt, adverting to Lord Atkin’s
dictum that courts are satisfied to leave to public opinion
attacks or comments derogatory or scandalous to them, in
paragraph 162, the Committee had stated that at one stage
“we considered whether such conduct should be
subject to penal sanctions at all. It was argued that any
Judge who was attacked would have the protection of
the law of defamation, and that no further protection is
necessary. We have concluded, however, that some
restraints are still required, for two reasons. First, this
branch of the law of contempt is concerned with the
protection of the administration of justice, and
especially the preservation of public confidence in its
honesty and impartiality; it is only incidentally, if at all,
concerned with the personal reputations of Judges.
Moreover, some damaging attacks, for example upon an
unspecified group of Judges, may not be capable of
being made the subject of libel proceedings at all.
Secondly, Judges commonly feel constrained by their
position not to take action in reply to criticism, and
they have no proper forum in which to do so such as
other public figures may have. These considerations
lead us to the conclusion that there is need for an
effective remedy … against imputations of improper or
corrupt judicial conduct.”
The Contempt of Courts Act, 1971 engrafted suitable
amendments accordingly.
Freedom of expression and duty of Advocate
31. It is true that freedom of speech and expression
guaranteed by Article 19(1)(a) of the Constitution is one of
the most precious liberties in any democracy. But equally
important is the maintenance of respect for judicial
independence which alone would protect the life, liberty and
31
reputation of the citizen. So the nation’s interest requires
that criticism of the judiciary must be measured, strictly
rational, sober and proceed from the highest motives
without being coloured by partisan spirit or pressure tactics
or intimidatory attitude. The Court must, therefore,
harmonise constitutional values of free criticism and the
need for a fearless curial process and its presiding
functionary, the Judge. If freedom of expression subserves
public interest in reasonable measure, public justice cannot
gag it or manacle it; but if the court considered the attack
on the Judge or Judges scurrilous, offensive, intimidatory or
malicious, beyond condonable limits, the strong arm of the
law must strike a blow on him who challenges the
supremacy of the rule of the law by fouling its source and
stream. The power to punish the contemner is, therefore,
granted to the court not because Judges need the protection
but because the citizens need an impartial and strong
judiciary.
34. The threat of action on vague grounds of dissatisfaction
would create a dragnet that would inevitably sweep into its
grasp the maverick, the dissenter, the innovator, the
reformer — in one word the unpopular. Insidious attempts
pave way for removing the inconvenient. Therefore, proper
care should be taken by the Bar Association concerned.
First, it should gather specific, authentic and acceptable
material which would show or tend to show that conduct on
the part of a Judge creating a feeling in the mind of a
reasonable person doubting the honesty, integrity,
impartiality or act which lowers the dignity of the office but
necessarily, is not impeachable misbehaviour. In all fairness
to the Judge, the responsible officebearers should meet him
in camera after securing interview and apprise the Judge of
the information they had with them. If there is truth in it,
there is every possibility that the Judge would mend
himself. Or to avoid embarrassment to the Judge, the officebearers can approach the Chief Justice of that High Court
and apprise him of the situation with material they have in
their possession and impress upon the Chief Justice to deal
with the matter appropriately.”
37. It was argued by Shri Dhavan, learned senior counsel, that
question of purging arises mainly in civil contempt. The question of
32
purging in criminal contempt was considered by this Court in Pravin C.
Shah v. K.A. Mohd Ali and Another, (2001) 8 SCC 650. The Bar
Council took the view that the purging of contempt can be only by
regretting or apologising in the case of criminal contempt and in civil
contempt, by subsequent compliance with the order or directions the
contempt can be purged. The following question arose:
“23. Now we have to consider the crucial question — how
can a contemnor purge himself of the contempt? According
to the Disciplinary Committee of the Bar Council of India,
purging oneself of contempt can be done by apologising to
the court. The said opinion of the Bar Council of India can
be seen from the following portion of the impugned order:
“Purging oneself of contempt can be only by
regretting or apologising in the case of a completed
action of criminal contempt. If it is a case of civil
contempt, by subsequent compliance with the orders or
directions the contempt can be purged of. There is no
procedural provision in law to get purged of contempt
by an order of an appropriate court.”
(i) Meaning of purging was considered by this Court thus:
“24. Purging is a process by which an undesirable element
is expelled either from one’s own self or from a society. It is a
cleaning process. Purge is a word which acquired
implications first in theological connotations. In the case of a
sin, purging of such sin is made through the expression of
sincere remorse coupled with doing the penance required. In
the case of a guilt, purging means to get himself cleared of
the guilt. The concept of purgatory was evolved from the word
“purge”, which is a state of suffering after this life in which
those souls, who depart this life with their deadly sins, are
purified and rendered fit to enter into heaven where nothing
defiled enters (vide Words and Phrases, Permanent Edn., Vol.
35A, p.307). In Black’s Law Dictionary the word “purge” is
given the following meaning: “To cleanse; to clear. To clear or
exonerate from some charge or imputation of guilt, or from a
33
contempt.” It is preposterous to suggest that if the convicted
person undergoes punishment or if he tenders the fine
amount imposed on him the purge would be completed.”
(ii) This Court considered how purging can take place thus:
“25. We are told that a learned Single Judge of the
Allahabad High Court has expressed a view that
purging process would be completed when the
contemnor undergoes the penalty [vide Madan Gopal
Gupta (Dr) v. Agra University [AIR 1974 All. 39]]. This
is what the learned Single Judge said about it: (AIR p.
43, para 13)
“In my opinion a party in contempt purged its
contempt by obeying the orders of the court or by
undergoing the penalty imposed by the court.”
26. Obeying the orders of the court would be a mode
by which one can make the purging process in a
substantial manner when it is a civil contempt. Even
for such a civil contempt the purging process would
not be treated as completed merely by the contemnor
undergoing the penalty imposed on him unless he has
obeyed the order of the court or he has undone the
wrong. If that is the position in regard to civil
contempt the position regarding criminal contempt
must be stronger. Section 2 of the Contempt of Courts
Act categorises contempt of court into two categories.
The first category is “civil contempt” which is the wilful
disobedience of the order of the court including breach
of an undertaking given to the court. But “criminal
contempt” includes doing any act whatsoever, which
tends to scandalise or lowers the authority of any
court, or tends to interfere with the due course of a
judicial proceeding or interferes with, or obstructs the
administration of justice in any other manner.”
38. This Court did not approve the view that merely undergoing the
penalty imposed on a contemnor is sufficient to complete the process of
purging himself for the contempt. In case of sentence of fine, the
contemnor can pay the fine and continue to persist with contemptuous
34
conduct again and again. Something more is required to purge the
criminal contempt. Even a statement of apology is not enough to purge
the contempt. The Court has to be satisfied as to the genuineness of the
apology to make an order that contemnor has purged himself of the
contempt. Before contempt is purged, the advocate could suffer the
consequences of Rule 11 of the Rules which postulates that in case the
advocate has been found guilty of contempt of court, his authority to act
or plead in any court stands snapped.
39. In Pravin C. Shah (supra), this Court held thus:
“22. We have already pointed out that Rule 11 of the Rules is a
selfoperating provision. When the first postulate of it is completed
(that the advocate has been found guilty of contempt of court) his
authority to act or plead in any court stands snapped, though
perhaps for the time being. If he does such things without the
express permission of the court he would again be guilty of
contempt of court besides such act being a misconduct falling
within the purview of Section 34 of the Advocates Act. The interdict
as against him from appearing in court as a counsel would
continue until such time as he purges himself of the contempt.
27. We cannot therefore approve the view that merely
undergoing the penalty imposed on a contemnor is sufficient to
complete the process of purging himself of the contempt,
particularly in a case where the contemnor is convicted of criminal
contempt. The danger in giving accord to the said view of the
learned Single Judge in the aforecited decision is that if a
contemnor is sentenced to a fine he can immediately pay it and
continue to commit contempt in the same court, and then again
pay the fine and persist with his contemptuous conduct. There
must be something more to be done to get oneself purged of the
contempt when it is a case of criminal contempt.
28. The Disciplinary Committee of the Bar Council of India
highlighted the absence of any mode of purging oneself of the guilt
35
in any of the Rules as a reason for not following the interdict
contained in Rule 11. Merely because the Rules did not prescribe
the mode of purging oneself of the guilt it does not mean that one
cannot purge the guilt at all. The first thing to be done in that
direction when a contemnor is found guilty of a criminal contempt
is to implant or infuse in his own mind real remorse about his
conduct which the court found to have amounted to contempt of
court. Next step is to seek pardon from the court concerned for
what he did on the ground that he really and genuinely repented
and that he has resolved not to commit any such act in future. It is
not enough that he tenders an apology. The apology tendered
should impress the court to be genuine and sincere. If the court,
on being impressed of his genuineness, accepts the apology then it
could be said that the contemnor has purged himself of the guilt.
29. This Court has held in M.Y. Shareef v. Hon’ble Judges of the
Nagpur High Court [AIR 1955 SC 19] that
“an apology is not a weapon of defence to purge the guilty of
their offence; nor is it intended to operate as a universal
panacea, but it is intended to be evidence of real contriteness”.
(AIR p. 23, para 10)
Ahmadi, J. (as the learned Chief Justice then was) in M.B. Sanghi,
Advocate v. High Court of Punjab and Haryana [(1991) 3 SCC 600]
while considering an apology tendered by an advocate in a
contempt proceeding has stated thus: (SCC p. 603, para 2)
“And here is a member of the profession who has repeated
his performance presumably because he was let off lightly on
the first occasion. Soft justice is not the answer — not that
the High Court has been harsh with him — what I mean is he
cannot be let off on an apology which is far from sincere. His
apology was hollow, there was no remorse — no regret — it
was only a device to escape the rigour of the law. What he
said in his affidavit was that he had not uttered the words
attributed to him by the learned Judge; in other words the
learned Judge was lying — adding insult to injury — and yet
if the court finds him guilty (he contested the matter tooth
and nail) his unqualified apology may be accepted. This is no
apology, it is merely a device to escape.”
30. A fourJudge Bench of this Court in Mulk Raj v. State of
Punjab [(1972) 3 SCC 839] made the following observations which
36
would throw considerable light on the question before us: (SCC p.
840, para 9)
“9. Apology is an act of contrition. Unless apology is
offered at the earliest opportunity and in good grace apology
is shorn of penitence. If apology is offered at a time when the
contemnor finds that the court is going to impose
punishment it ceases to be an apology and it becomes an act
of a cringing coward. The High Court was right in not taking
any notice of the appellant’s expression of apology ‘without
any further word’. The High Court correctly said that
acceptance of apology in the case would amount to allow the
offender to go away with impunity after having committed
gross contempt.”
40. This Court further held that till contempt is purged, the advocate
has to suffer the consequences of Rule 11. This Court held:
“34. The respondent Advocate continued to appear in all the
courts where he was earlier appearing even after he was
convicted by the High Court for criminal contempt without
being objected by any court. This is obviously on account of the
fact that presiding officers of the court were not informed of
what happened. We, therefore, direct that in future, whenever
an advocate is convicted by the High Court for contempt of
court, the Registrar of that High Court shall intimate the fact to
all the courts within the jurisdiction of that High Court so that
presiding officers of all courts would get the information that
the particular advocate is under the spell of the interdict
contained in Rule 11 of the Rules until he purges himself of the
contempt.
35. It is still open to the respondent Advocate to purge himself
of the contempt in the manner indicated above. But until that
process is completed the respondent Advocate cannot act or
plead in any court situated within the domain of the Kerala
High Court, including the subordinate courts thereunder. The
Registrar of the High Court of Kerala shall intimate all the
courts about this interdict as against the respondent
Advocate.”
37
41. In Bar Council of India v. High Court of Kerala, (2004) 6 SCC
311, the ratio in Pravin C. Shah (supra) was affirmed by this Court. It
was held that the Court has the power to punish under Article 129 of the
Constitution of India and can punish advocate. The Court relied the
decision in Supreme Court Bar Association v. Union of India, (1998) 4
SCC 409. It was held thus:
“34. Although in a case of professional misconduct, this
Court cannot punish an advocate in exercise of its jurisdiction
under Article 129 of the Constitution of India which can be
imposed on a finding of professional misconduct recorded in
the manner prescribed under the Advocates Act and the Rules
framed thereunder but as has been noticed in Supreme Court
Bar Assn. [(1998) 4 SCC 409] professional misconduct of the
advocate concerned is not a matter directly in issue in the
matter of contempt case.”
42. Roshan Lal Ahuja, In Re:, (1993) Supp. 4 SCC 446, it was held
that pleadings made had the effect on scandalizing and lowering the
authority of the Court in relation to the judicial matters but also had the
effect of substantial interference with obstructing the administration of
justice. Unfounded and unwarranted aspersions had the tendency to
undermine the authority of the Court and would create distrust in the
mind of the public and on the capacity to impart fearless justice.
38
43. It will be relevant refer to the following clauses of the ‘Restatement
of Values of Judicial Life’ adopted in the Chief Justices’ Conference
at New Delhi on September 1819, 1992:
“..(8) A Judge shall not enter into a public debate or express
his views in public on political matters or on matters that are
pending or are likely to arise for judicial determination.
(9) A Judge is expected to let his judgment speak for
themselves. He shall not give interview to the media.”
44. The contemnor has tried to justify the averments made on the basis
of the Press Conference dated 12.01.2018 of the four seniormost Judges
of this Court. Concept of equality before law, what is permissible not as
to what is impermissible. It is settled that negative equality cannot be
claimed as there is no concept of negative equality. We hope it was the
first and the last occasion that the Judges have gone to press, and God
gives wisdom to protect its dignity by internal mechanism, particularly,
when allegations made, if any, publicly cannot be met by sufferer
Judges. It would cause suffering to them till eternity. Truth can be the
defence to the Judges also, but they are bound by their judicial norms,
ethics, and code of conduct. Similarly, the code of conduct for advocates
is equally applicable to the lawyers also, being part of the system. The
Rules of Professional Ethics formed by the Bar Council, though couched
under statutory power, are themselves not enough to prescribe or
39
proscribe the nobility of profession in entirety. The nobility of profession
encompasses, over and above, the Rules of Ethics. Lawyers, as a class,
are looked by the public as intelligentsia, as observed in R.
Muthukrishnan v. The Registrar General of The High Court of
Judicature at Madras, (2019) 16 SCC 407. The relevant portion of the
judgment is extracted hereunder:
“25. The role of a lawyer is indispensable in the system of
delivery of justice. He is bound by the professional ethics
and to maintain the high standard. His duty is to the
court, to his own client, to the opposite side, and to
maintain the respect of opposite party counsel also. What
may be proper to others in the society, may be improper
for him to do as he belongs to a respected intellectual
class of the society and a member of the noble profession,
the expectation from him is higher. Advocates are treated
with respect in society. People repose immense faith in
the judiciary and judicial system and the first person who
deals with them is a lawyer. Litigants repose faith in a
lawyer and share with them privileged information. They
put their signatures wherever asked by a lawyer. An
advocate is supposed to protect their rights and to ensure
that untainted justice is delivered to his cause.
26. The high values of the noble profession have to be
protected by all concerned at all costs and in all the
circumstances cannot be forgotten even by the
youngsters in the fight of survival in formative years. The
nobility of the legal profession requires an advocate to
remember that he is not over attached to any case as
advocate does not win or lose a case, real recipient of
justice is behind the curtain, who is at the receiving end.
As a matter of fact, we do not give to a litigant anything
except recognising his rights. A litigant has a right to be
impartially advised by a lawyer. Advocates are not
supposed to be money guzzlers or ambulance chasers. A
lawyer should not expect any favour from the Judge and
should not involve by any means in influencing the fair
40
decisionmaking process. It is his duty to master the
facts and the law and submit the same precisely in the
court, his duty is not to waste the courts' time.”
72. The decision in Mohit Chaudhary, In re [Mohit
Chaudhary, In re, (2017) 16 SCC 78] has also been relied
upon in which this Court considered Rule 10 and
debarred an advocate to practice as AdvocateonRecord
for a period of one month from the date of order. At the
same time, this Court has observed that a lawyer is
under obligation to do nothing that shall detract from the
dignity of the Court. Contempt jurisdiction is for the
purpose of upholding honour or dignity of the court, to
avoid sharp or unfair practices. An advocate shall not to
be immersed in a blind quest of relief for his client. “Law
is not trade, briefs no merchandise”. His duty is to
legitimately present his side of the case to assist in the
administration of justice. The Judges are selected from
the Bar and purity of the Bench depends on the purity of
the Bar. Degraded Bar results in degraded Bench. The
Court has referred to articles and standard of
processional conduct and etiquettes thus: (SCC pp. 88
92, paras 2028, 30 & 32)
“20. Warvelle's Legal Ethics, 2nd Edn. at p. 182 sets
out the obligation of a lawyer as:
‘A lawyer is under obligation to do nothing
that shall detract from the dignity of the court,
of which he is himself a sworn officer and
assistant. He should at all times pay deferential
respect to the Judge, and scrupulously observe
the decorum of the courtroom.’
21. The contempt jurisdiction is not only to protect
the reputation of the Judge concerned so that he
can administer justice fearlessly and fairly, but also
to protect “the fair name of the judiciary”. The
protection in a manner of speaking, extends even to
the Registry in the performance of its task and false
and unfair allegations which seek to impede the
working of the Registry and thus the administration
of justice, made with oblique motives cannot be
tolerated. In such a situation in order to uphold the
honour and dignity of the institution, the Court has
to perform the painful duties which we are faced
with in the present proceedings. Not to do so in the
words of P.B. Sawant, J. in Ministry of Information &
41
Broadcasting, In re [Ministry of Information &
Broadcasting, In re, (1995) 3 SCC 619] would: (SCC
p. 635, para 20)
‘20. … The present trend unless checked is
likely to lead to a stage when the system will be
found wrecked from within before it is wrecked
from outside. It is for the members of the
profession to introspect and take the corrective
steps in time and also spare the courts the
unpleasant duty. We say no more.’
22. Now turning to the “Standards of Professional
Conduct and Etiquette” of the Bar Council of India
Rules contained in Section I of Chapter II, Part VI,
the duties of an advocate towards the court have
been specified. We extract the 4th duty set out as
under:
‘4. An advocate shall use his best efforts to
restrain and prevent his client from resorting to
sharp or unfair practices or from doing
anything in relation to the court, opposing
counsel or parties which the advocate himself
ought not to do. An advocate shall refuse to
represent the client who persists in such
improper conduct. He shall not consider himself
a mere mouthpiece of the client, and shall
exercise his own judgment in the use of
restrained language in correspondence,
avoiding scurrilous attacks in pleadings, and
using intemperate language during arguments
in court.’
23. In the aforesaid context the aforesaid principle in
different words was set out by Crampton, J.
in R. v. O' Connell [R. v. O' Connell, (1844) 7 Irish
Law Reports 313] as under:
‘The advocate is a representative but not a
delegate. He gives to his client the benefit of his
learning, his talents and his judgment; but all
through he never forgets what he owes to
himself and to others. He will not knowingly
misstate the law, he will not wilfully misstate
the facts, though it be to gain the case for his
client. He will ever bear in mind that if he be an
advocate of an individual and retained and
remunerated often inadequately, for valuable
42
services, yet he has a prior and perpetual
retainer on behalf of truth and justice and there
is no Crown or other licence which in any case
or for any party or purpose can discharge him
from that primary and paramount retainer.’
24. The fundamentals of the profession thus require
an advocate not to be immersed in a blind quest of
relief for his client. The dignity of the institution
cannot be violated in this quest as “law is no trade,
briefs no merchandise” as per Krishna Iyer, J. in Bar
Council of Maharashtra v. M.V. Dabholkar [Bar
Council of Maharashtra v. M.V. Dabholkar, (1976) 2
SCC 291] (SCC p. 301, para 23).
25. It is also pertinent to note at this point, the
illuminating words of Vivian Bose, J. in ‘G’, a Senior
Advocate of the Supreme Court, In re [‘G’, a Senior
Advocate of the Supreme Court, In re, AIR 1954 SC
557 : 1954 Cri LJ 1410] , who elucidated: (AIR p.
558, para 10)
‘10. … To use the language of the army, an
advocate of this Court is expected at all times to
comport himself in a manner befitting his
status as an “officer and a gentleman”.’
26. It is as far back as in 1925 that an article titled
“The Lawyer as an Officer of the Court” [Virginia Law
Review, Vol. 11, No. 4 (Feb 1925) pp. 26377.]
published in the Virginia Law Review, lucidly set
down what is expected from the lawyer which is best
set out in its own words:
‘The duties of the lawyer to the court spring
directly from the relation that he sustains to the
court as an officer in the administration of
justice. The law is not a mere private calling,
but is a profession which has the distinction of
being an integral part of the State's judicial
system. As an officer of the court the lawyer is,
therefore, bound to uphold the dignity and
integrity of the court; to exercise at all times
respect for the court in both words and actions;
to present all matters relating to his client's
case openly, being careful to avoid any attempt
43
to exert private influence upon either the Judge
or the jury; and to be frank and candid in all
dealings with the court, “using no deceit,
imposition or evasion”, as by misreciting
witnesses or misquoting precedents. “It must
always be understood”, says Mr Christian
Doerfler, in an address before the Milwaukee
County Bar Association, in December 1911,
“that the profession of law is instituted among
men for the purpose of aiding the
administration of justice. A proper
administration of justice does not mean that a
lawyer should succeed in winning a lawsuit. It
means that he should properly bring to the
attention of the court everything by way of fact
and law that is available and legitimate for the
purpose of properly presenting his client's case.
His duty as far as his client is concerned is
simply to legitimately present his side of the
case. His duty as far as the public is concerned
and as far as he is an officer of the Court is to
aid and assist in the administration of justice.”’
In this connection, the timely words of Mr
Warvelle may also well be remembered:
‘But the lawyer is not alone a
gentleman; he is a sworn minister of
justice. His office imposes high moral
duties and grave responsibilities, and he is
held to a strict fulfilment of all that these
matters imply. Interests of vast magnitude
are entrusted to him; confidence is
imposed in him; life, liberty and property
are committed to his care. He must be
equal to the responsibilities which they
create, and if he betrays his trust, neglects
his duties, practices deceit, or panders to
vice, then the most severe penalty should
be inflicted and his name stricken from the
roll.’
That the lawyer owes a high duty to his
profession and to his fellow members of the Bar
is an obvious truth. His profession should be
his pride, and to preserve its honour pure and
unsullied should be among his chief concerns.
“Nothing should be higher in the estimation of
44
the advocate”, declares Mr Alexander H.
Robbins, “next after those sacred relations of
home and country than his profession. She
should be to him the “fairest of ten thousand”
among the institutions of the earth. He must
stand for her in all places and resent any attack
on her honour — as he would if the same attack
were to be made against his own fair name and
reputation. He should enthrone her in the
sacred places of his heart, and to her, he
should offer the incense of constant devotion.
For she is a jealous mistress.
Again, it is to be borne in mind that the
Judges are selected from the ranks of lawyers.
The purity of the Bench depends upon the
purity of the Bar.
‘The very fact, then, that one of the
coordinate departments of the Government
is administered by men selected only from
one profession gives to that profession a
certain preeminence which calls for a high
standard of morals as well as intellectual
attainments. The integrity of the judiciary
is the safeguard of the nation, but the
character of the Judges is practically but
the character of the lawyers. Like begets
like. A degraded Bar will inevitably produce
a degraded Bench, and just as certainly
may we expect to find the highest
excellence in a judiciary drawn from the
ranks of an enlightened, learned and moral
Bar.’
27. He ends his article in the following words:
‘No client, corporate or individual, however
powerful, nor any cause civil or political, however
important, is entitled to receive, nor should any
lawyer render, any service or advice involving
disloyalty to the law whose ministers we are, or
disrespect of the judicial office, which we are
bound to uphold, or corruption of any person or
persons exercising a public office or private trust,
or deception or betrayal of the public. When
rendering any such improper service or advice,
the lawyer invites and merits stern and just
condemnation. Correspondingly, he advances the
45
honour of his profession and the best interests of
his client when he renders service or gives advice
tending to impress upon the client and his
undertaking exact compliance with the strictest
principles of moral law. He must also observe
and advise his client to observe the statute law,
though until a statute shall have been construed
and interpreted by competent adjudication, he is
free and is entitled to advise as to its validity and
as to what he conscientiously believes to be its
just meaning and extent. But, above all, a lawyer
will find his highest honour in a deserved
reputation for fidelity to private trust and to
public duty, as an honest man and as a patriotic
and loyal citizen.’
28. On examination of the legal principles an
important issue emerges: what should be the end of
what the contemnor had started but has culminated
in an impassioned plea of Mr K.K. Venugopal,
learned Senior Advocate supported by the
representatives of the Bar present in court, marking
their appearance for the contemnor. We are inclined
to give due consideration to such a plea but are
unable to persuade ourselves to let the contemnor go
scotfree, without any consequences. We are thus
not inclined to proceed further in the contempt
jurisdiction except to caution the contemnor that
this should be the first and the last time of such a
misadventure. But the matter cannot rest only at
that.
***
30. We are of the view that the privilege of being an
AdvocateonRecord under the rules has clearly been
abused by the contemnor. The conduct was not
becoming of an advocate much less an AdvocateonRecord in the Supreme Court.
***
32. The aforesaid rule makes it clear that whether
on the complaint of any person or otherwise, in case
of misconduct or a conduct unbecoming of an
AdvocateonRecord, the court may make an order
removing his name from the register of AdvocateonRecord permanently, or for a specified period. We are
not referring to the right to practice as an advocate,
46
and the name entered on the rolls of any State Bar
Council, which is a necessary requirement, before a
person takes the examination of AdvocateonRecord. The present case is clearly one where this
Court is of the opinion that the conduct of the
contemnor is unbecoming of an AdvocateonRecord.
The prerequisites of the proviso are met by the
reason of the Bench being constituted itself by the
Chief Justice, and the contemnor being aware of the
far more serious consequences, which could have
flowed to him. The learned Senior Counsel
representing the petitioner has thrown him at the
mercy of the court. We have substantively accepted
the request but lesser consequences have been
imposed on the contemnor.”
45. With respect to test on judicial system and what constitutes
Contempt of Court attributing political colours to the judgments, in
Muthu Krishnan (supra) it was held :
“82. It has been seen from time to time that various
attacks have been made on the judicial system. It has
become very common to the members of the Bar to go to
the press/media to criticise the Judges in person and to
commit sheer contempt by attributing political colours to
the judgments. It is nothing less than an act of contempt
of gravest form. Whenever any political matter comes to
the Court and is decided, either way, political
insinuations are attributed by unscrupulous
persons/advocates. Such acts are nothing, but an act of
denigrating the judiciary itself and destroys the faith of
the common man which he reposes in the judicial
system. In case of genuine grievance against any Judge,
the appropriate process is to lodge a complaint to the
higher authorities concerned who can take care of the
situation and it is impermissible to malign the system
itself by attributing political motives and by making false
allegations against the judicial system and its
functionaries. Judges who are attacked are not supposed
to go to press or media to ventilate their point of view.
47
83. Contempt of court is a weapon which has to be used
sparingly as more is power, same requires more
responsibility but it does not mean that the court has
fear of taking action and its repercussions. The hallmark
of the court is to provide equal and evenhanded justice
and to give an opportunity to each of the system to
ensure that it improves upon. Unfortunately, some
advocates feel that they are above the Bar Council due to
its inaction and they are the only champion of the
causes. The hunger for cheap publicity is increasing
which is not permitted by the noble ideals cherished by
the great doyens of the Bar, they have set by their
conduct what should be in fact the professional
etiquettes and ethics which are not capable of being
defined in a narrow compass. The statutory rules prohibit
advocates from advertising and in fact to cater to the
press/media, distorted versions of the court proceedings
is sheer misconduct and contempt of court which has
become very common. It is making it more difficult to
render justice in a fair, impartial and fearless manner
though the situation is demoralising that something has
to be done by all concerned to revamp the image of the
Bar. It is not open to wash dirty linen in public and enter
in accusation/debates, which tactics are being adopted
by unscrupulous elements to influence the judgments
and even to deny justice with ulterior motives. It is for the
Bar Council and the senior members of the Bar who have
never forgotten their responsibility to rise to the occasion
to maintain the independence of the Bar which is so
supreme and is absolutely necessary for the welfare of
this country and the vibrant democracy.”
46. In Tehseen Poonawalla v. Union of India & Another, (2018) 6
SCC 72, esteemed brother Dr. Justice Chandrachud, who delivered the
judgment, has noted the misuse of public interest litigation and found
that it was a serious matter of concern for the judicial process. He
further found that the Court is flooded with misdirected petitions
purportedly filed in the public interest which, upon due scrutiny, are
found to promote a personal, business or political agenda. It was further
48
observed that such petitions pose a grave danger to the credibility of the
judicial process. It was further observed that this has the propensity of
endangering the credibility of other institutions and undermining public
faith in democracy and the rule of law. The Court cautioned that the
agency of the Court is being utilized to settle extra judicial scores. This
Court held thus:
“96. Public interest litigation has developed as a powerful
tool to espouse the cause of the marginalised and
oppressed. Indeed, that was the foundation on which
public interest jurisdiction was judicially recognised in
situations such as those in Bandhua Mukti
Morcha v. Union of India [Bandhua Mukti
Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC
(L&S) 389] . Persons who were unable to seek access to
the judicial process by reason of their poverty, ignorance
or illiteracy are faced with a deprivation of fundamental
human rights. Bonded labour and undertrials (among
others) belong to that category. The hallmark of a public
interest petition is that a citizen may approach the court
to ventilate the grievance of a person or class of persons
who are unable to pursue their rights. Public interest
litigation has been entertained by relaxing the rules of
standing. The essential aspect of the procedure is that
the person who moves the court has no personal interest
in the outcome of the proceedings apart from a general
standing as a citizen before the court. This ensures the
objectivity of those who pursue the grievance before the
court. Environmental jurisprudence has developed
around the rubric of public interest petitions.
Environmental concerns affect the present generation
and the future. Principles such as the polluter pays and
the public trust doctrine have evolved during the
adjudication of public interest petitions. Over time, public
interest litigation has become a powerful instrument to
preserve the rule of law and to ensure the accountability
of and transparency within structures of governance.
Public interest litigation is in that sense a valuable
49
instrument and jurisdictional tool to promote structural
due process.
97. Yet over time, it has been realised that this
jurisdiction is capable of being and has been brazenly
misutilised by persons with a personal agenda. At one
end of that spectrum are those cases where public
interest petitions are motivated by a desire to seek
publicity. At the other end of the spectrum are petitions
which have been instituted at the behest of business or
political rivals to settle scores behind the facade of a
public interest litigation. The true face of the litigant
behind the façade is seldom unravelled. These concerns
are indeed reflected in the judgment of this Court in State
of Uttaranchal v. Balwant Singh Chaufal [State of
Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC
402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] .
Underlining these concerns, this Court held thus: (SCC
p. 453, para 143)
“143. Unfortunately, of late, it has been noticed that
such an important jurisdiction which has been
carefully carved out, created and nurtured with
great care and caution by the courts, is being
blatantly abused by filing some petitions with
oblique motives. We think time has come when
genuine and bona fide public interest litigation must
be encouraged whereas frivolous public interest
litigation should be discouraged. In our considered
opinion, we have to protect and preserve this
important jurisdiction in the larger interest of the
people of this country but we must take effective
steps to prevent and cure its abuse on the basis of
monetary and nonmonetary directions by the
courts.”
98. The misuse of public interest litigation is a serious
matter of concern for the judicial process. Both this
Court and the High Courts are flooded with litigations
and are burdened by arrears. Frivolous or motivated
petitions, ostensibly invoking the public interest detract
from the time and attention which courts must devote to
genuine causes. This Court has a long list of pending
cases where the personal liberty of citizens is involved.
Those who await trial or the resolution of appeals against
50
orders of conviction have a legitimate expectation of early
justice. It is a travesty of justice for the resources of the
legal system to be consumed by an avalanche of
misdirected petitions purportedly filed in the public
interest which, upon due scrutiny, are found to promote
a personal, business or political agenda. This has
spawned an industry of vested interests in litigation.
There is a grave danger that if this state of affairs is
allowed to continue, it would seriously denude the
efficacy of the judicial system by detracting from the
ability of the court to devote its time and resources to
cases which legitimately require attention. Worse still,
such petitions pose a grave danger to the credibility of
the judicial process. This has the propensity of
endangering the credibility of other institutions and
undermining public faith in democracy and the rule of
law. This will happen when the agency of the court is
utilised to settle extrajudicial scores. Business rivalries
have to be resolved in a competitive market for goods and
services. Political rivalries have to be resolved in the great
hall of democracy when the electorate votes its
representatives in and out of office. Courts resolve
disputes about legal rights and entitlements. Courts
protect the rule of law. There is a danger that the judicial
process will be reduced to a charade, if disputes beyond
the ken of legal parameters occupy the judicial space.”
47. Further attack was made on the formation of the Bench, and
recusal was sought of the certain Judges who were part of the Bench, as
they were originally from Bombay High Court. It was observed that the
conduct of the petitioner and the intervenor is scandalizing the process
of the Court and would prima facie constitute criminal contempt.
However, on a dispassionate view of the matter, the Court did not initiate
proceedings by way of criminal contempt as that would amount to
unequal battle. While considering the submissions made by Shri
51
Prashant Bhushan seeking recusal and casting aspersions upon the
judicial officers, it was observed thus:
“101. … If this were to be the test, it is rather ironical
that the petitioners had instituted proceedings before the
Bombay High Court each of whose Judges were expected
to be faced with the same situation. We informed Mr
Bhushan that a decision as to whether a Judge should
hear a case is a matter of conscience for the Judge. There
is absolutely no ground or basis to recuse. Judges of the
High Court hear intracourt appeals against orders of
their own colleagues. References are made to larger
Benches when there are differences of view. Judges of the
Supreme Court hear appeals arising from judgments
rendered by Judges of the High Courts in which they
served, either as Judges or on appointments as Chief
Justices. Maintaining institutional civilities between or
towards Judges is distinct from the fiercely independent
role of the Judge as adjudicator. We emphatically clarify
that on the wellsettled parameters which hold the field,
there is no reason for any member of the present Bench
to recuse from the hearing. While it is simple for a Judge
faced with these kinds of wanton attacks to withdraw
from a case, doing so would amount to an abdication of
duty. There are higher values which guide our conduct.
Though Mr Bhushan ultimately made it clear that he is
not filing an application for recusal — and none has been
filed — we have recorded what transpired to express our
sense of anguish at the manner in which these
proceedings have been conducted. Serious attacks have
been made on the credibility of two Judges of the Bombay
High Court. The conduct of the petitioners and the
intervenors scandalises the process of the court and
prima facie constitutes criminal contempt. However, on a
dispassionate view of the matter, we have chosen not to
initiate proceedings by way of criminal contempt if only
not to give an impression that the litigants and the
lawyers appearing for them have been subjected to an
unequal battle with the authority of law. We rest in the
hope that the Bar of the nation is resilient to withstand
such attempts on the judiciary. The judiciary must
continue to perform its duty even if it is not to be
palatable to some. The strength of the judicial process
lies not in the fear of a coercive law of contempt. The
52
credibility of the judicial process is based on its moral
authority. It is with that firm belief that we have not
invoked the jurisdiction in contempt.”
48. In Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC 156,
the authority of the Chief Justice to constitute the Benches, was
questioned. Again, in reply, averments have been made with respect to
the constitution of the Benches by the Chief Justice. The question was
dealt with in Kamini Jaiswal (supra), in which Shri Prashant Bhushan
himself appeared. Reliance was placed on D.C. Saxena v. Chief Justice
of India, (1996) 5 SCC 216, in which it was observed thus:
“81. It is the duty of the Chief Justice of a court to
assign judicial work to his brother Judges. It was,
therefore, the duty of the respondent to assign the second
writ petition to a Bench to hear it. By doing so he did not,
as is alleged, become a Judge in his own cause. It is
contempt to imply, as the alleged contemnor does, that
the respondent would assign it to a Bench which would
not pass an order adverse to him. It is also contempt to
imply that Judges would be so amenable. To plead that
the Bench that heard the second writ petition could not
have heard it and, therefore, could not have dismissed it
and that it is deemed to be still pending is to add to the
contempt. These allegations are also aimed at bringing
the administration of justice into disrepute.”
49. It was also observed in Kamini Jaiswal (supra) thus:
“30. Though it is true, that none of us is above law; no
person in the higher echelons is above the law but, at the
same time, it is the duty of both the Bar and the Bench,
to protect the dignity of the entire judicial system. We
find that filing of such petitions and the zest, with which
it is pursued, has brought the entire system in the last
few days to unrest. An effort was made to create ripples
53
in this Court; serious and unwanted shadow of doubt has
been created for no good reason whatsoever by way of
filing the petition which was wholly scandalous and
ought not to have been filed in such a method and
manner. It is against the settled proposition of law.
Ultimately after arguing at length, at the end, it was
submitted by the petitioner and her counsel that they
were not aiming at any individual. If that was not so,
unfounded allegations ought not to have been made
against the system and that too against the Hon'ble Chief
Justice of this country. In case majesty of our judicial
system has to survive, such kind of petitions should not
have been preferred that too against the settled
proposition of law laid down by this Court in the
aforesaid decisions of this Court in D.C. Saxena [D.C.
Saxena v. Chief Justice of India, (1996) 5 SCC 216]
and K. Veeraswami [K. Veeraswami v. Union of India,
(1991) 3 SCC 655 : 1991 SCC (Cri) 734].”
50. In view of the settled legal position, as stated hereinabove, we are of
the considered opinion that the defence taken in the affidavit cannot be
said to be either bona fide or in the public interest. Both the tweets
coupled with averments in the reply affidavit are capable of shaking the
confidence of the public in the institution as a whole. The second tweet
is capable of creating an impression that the entire Supreme Court in the
last six years has played a vital role in the destruction of democracy.
51. As already discussed hereinabove, one of the attending
circumstances which is required to be taken into consideration is the
person who makes the statement. It is not expected of a person who is a
part of the system of administration of justice and who owes a duty to
the said system, to make such tweets which are capable of shaking the
54
confidence of general public and further making wild allegations in the
affidavit thereby further attempting to malign the said institution. Such
an act by responsible person who is part of this system cannot be
ignored or overlooked.
52. We find no justification to make such a remark/tweet, particularly
when it is made by a lawyer with 35 years standing like Shri Prashant
Bhushan, who is an officer of the Court and advocates enjoy equal
dignity in the system. In spite of learned Attorney General’s insistence
that the averments made in the defence should be withdrawn and regret
should be submitted, Dr. Dhavan, learned senior counsel, stated that the
contemnor is not ready to withdraw the defence taken in the reply. That
further makes it clear that while insisting with the unjustifiable defence
and insistence to go with it makes the entire episode the one which
cannot be ignored.
53. The tweet has been made by the lawyer who has the standing of 35
years and who is involved in several public interest litigations. However,
merely because a lawyer is involved in the filing of the public interest
litigation for the public good it does not arm him to harm the very system
of which he is a part. Though expectation from an ordinary citizen may
be different, the duties and expectations that are expected from a lawyer
of long standing are on higher side. An advocate cannot forget his ethical
55
duty and responsibility and cannot denigrate the very system of which
he/she is an integral part. Fair criticism is not to be silenced, but an
advocate has to remind himself/herself, where he/she crosses the zone
of propriety, and the Court cannot continuously ignore it, and the system
cannot be made to suffer. When the criticism turns into malicious and
scandalous allegations thereby tending to undermine the confidence of
the public and the institution as a whole, such a criticism cannot be
ignored.
In Ref: Statement in Press/Media
54. Dr. Dhavan, learned senior counsel, next argued that we should
consider the various statements made by some of the retired Judges,
journalists, and others. We are not referring to the names as we do not
deem it appropriate to refer those names. The argument is founded on
the fact that the Court should be influenced by the opinion expressed in
the newspapers and other media, when the Court is hearing a matter.
There are two facets of the argument. Firstly, whether the Court should
be moved by the statement published in the newspaper and secondly,
whether, in a sub judice matters, such statements are permissible to be
made. We put a question to ourselves, as to whether the Court can be
guided by such opinions expressed on the public platform and as to
whether the Court while exercising its judicial duties render its decision
56
on the basis of the trial made by the media and public opinion. Answer to
both the questions are found firmly in the negative. The Court cannot
abdicate its duty and has to be uninfluenced by the statements
published in various articles published in the media and opinions
expressed therein. It has to decide the case uninfluenced by such
opinions.
55. C.J. Miller in Contempt of Court, Third Edition, dealt with the
similar issue referring to the decision in AttorneyGeneral v. Times
Newspaper Ltd., (1973) 3 All ER 54, discussed the aspect thus:
“7.106 This view was followed in the Australian case of Ex
p. AttorneyGeneral: Re Truth and Sportsman Ltd. [1958 61
SR (NSW) 484] Here a newspaper described a driver who had
been convicted after his car had knocked over and killed two
young children as a ‘monster’, adding that ‘it was one of the
most inhumane road killings on record in New South Wales’.
The Supreme Court of New South Wales justified the
imposition of a fine for contempt on the ground, inter alia,
that:
If comment and criticism of the nature dealt with in
these proceedings were permitted while an appeal is
pending, prejudice would undoubtedly be likely to be
created, and in any event the court could be seriously
embarrassed
The decision in the DelbertEvans case was cited with
evident approval in AttorneyGeneral v. Crisp and ‘Truth’ (NZ)
Ltd. [1952 NZLR 84 (NZ Sup. Ct.). The defendants had
described one Horry as ‘an unspeakable monster’ and a ‘suave
blackhearted fiend’ when the time for appealing against a
conviction for murder had not expired. In holding that a
contempt had been committed, Fair J said that such comment
tended ‘seriously to embarrass the fair and impartial
administration of justice’.”
57
56. It was further observed that there is a substantial risk of serious
prejudice through an effect upon the mind of an appellate judge by such
publication. It was also emphasized that an act of making comments
which are intended or even likely to influence a judge necessarily amount
to a contempt.
57. Dr. Dhavan, learned senior counsel, has submitted that this Court
will be criticized, in case it inflicts any punishment upon Shri Prashant
Bhushan. We are unmoved by this submission. While exercising our
judicial functions, we cannot take into consideration whether we will be
praised or criticized for the judgment which we render. We are required
to decide the cases on the basis of the law as it correctly stands, in our
perception and understanding. We are not expected to decide the matter
on the basis as to whether there will be criticism of the judgment or not.
We have to be always ready for its fair criticism.
58. C.J. Miller, in Contempt of Court, Third Edition, has referred
Lord Parker CJ thus:
“7.118 An alternative way of justifying the imposition of
liability in such cases as AttorneyGeneral v. Tonks [1939 NZLR
533] is to categorize the publication as an attempt to ‘dictate’ a
decision to an appellate court. As such, it may be viewed as a
contempt on the basis of an argument that a person who acts
with the intention of interfering with the administration of
justice will commit the offence, even though there is absolutely
no likelihood of his achieving this objective. The point is
discussed in more detail elsewhere. Here, it is sufficient to note
that Lord Parker CJ agreed in Duffy, ex p. Nash that a
58
contempt may be committed where ‘the article in question
formed part of a deliberate campaign to influence the decision
of the appellate tribunal’. [1960 2 QB 188] Hence, there is
common law authority suggesting that such a campaign is
unlawful in this country.”
59. This Court has also considered the effect on the cases by pressure
created by the media in R.K. Anand v. Registrar, Delhi High Court
(2009) 8 SCC 106 and Reliance Petrochemicals Ltd. v. Proprietors of
Indian Express NewsPapers Bombay Pvt. Ltd., and others, (1988) 4
SCC 592.
60. In the case of R.K. Anand (supra), the Court considered the
concept of trial by media in a case which was sub judice. While
considering the same, it was held thus:
“Reporting of pending trial
289. We are also unable to agree with the submission
made by Mr P.P. Rao that the TV channel should have
carried out the stings only after obtaining the permission
of the trial court or the Chief Justice of the Delhi High
Court and should have submitted the sting materials to
the court before its telecast. Such a course would not be
an exercise in journalism but in that case the media
would be acting as some sort of special vigilance agency
for the court. On little consideration the idea appears to
be quite repugnant both from the points of view of the
court and the media.
290. It would be a sad day for the court to employ the
media for setting its own house in order; and media too
would certainly not relish the role of being the snoopers
for the court. Moreover, to insist that a report concerning
a pending trial may be published or a sting operation
concerning a trial may be done only subject to the prior
consent and permission of the court would tantamount to
precensorship of reporting of court proceedings. And this
59
would be plainly an infraction of the media's right of
freedom of speech and expression guaranteed under
Article 19(1) of the Constitution.
291. This is, however, not to say that media is free to
publish any kind of report concerning a sub judice
matter or to do a sting on some matter concerning a
pending trial in any manner they please. The legal
parameter within which a report or comment on a sub
judice matter can be made is well defined and any action
in breach of the legal bounds would invite consequences.
Compared to normal reporting, a sting operation is an
incalculably more risky and dangerous thing to do. A
sting is based on deception and, therefore, it would
attract the legal restrictions with far greater stringency
and any infraction would invite more severe
punishment.”
61. In State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8
SCC 386, the concept of trial by press, electronic media and public
agitation was considered and the Court held thus:
“37. We agree with the High Court that a great harm had
been caused to the girl by unnecessary publicity and
taking out of morcha by the public. Even the case had to
be transferred from Kolhapur to Satara under the orders
of this Court. There is procedure established by law
governing the conduct of trial of a person accused of an
offence. A trial by press, electronic media or public
agitation is the very antithesis of rule of law. It can well
lead to miscarriage of justice. …”
62. In Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra, (2009) 6 SCC 498, question of public opinion in capital
sentencing was considered. It was observed that perception of public is
60
extraneous to conviction as also sentencing. Relevant paragraphs are as
under:
“2(F) Public opinion in capital sentencing
80. It is also to be pointed out that public opinion is
difficult to fit in the rarest of rare matrix. People's
perception of crime is neither an objective circumstance
relating to crime nor to the criminal. Perception of public
is extraneous to conviction as also sentencing, at least in
capital sentencing according to the mandate of Bachan
Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] .
xxx xxx
87. Public opinion may also run counter to the rule of law
and constitutionalism. Bhagalpur Blinding case [Ed.: The
reference seems to be to Khatri (II) v. State of Bihar,
(1981) 1 SCC 627 : 1981 SCC (Cri) 228] or the recent
spate of attacks on right to trial of the accused
in Bombay Bomb Blast case [Ed.: The reference seems to
be to Sanjay Dutt v. State (II), (1994) 5 SCC 410 : 1994
SCC (Cri) 1433] are recent examples. We are also not
oblivious to the danger of capital sentencing becoming a
spectacle in media. If media trial is a possibility,
sentencing by media cannot be ruled out.
88. Andrew Ashworth, a leading academic in the field of
sentencing, who has been at the centre of sentencing
reforms in the UK, educates us of the problems in
factoring in public opinion in the sentencing. He (with
Michael Hough), observes in an article, “Sentencing and
the Climate of Opinion” (1996 Crim. L.Rev.):
“The views of sentencing held by people outside the
criminal justice system—‘the general public’—will
always be important even if they should not be
determinative in court. Unfortunately, the concept of
public opinion in relation to sentencing practices is
often employed in a superficial or simplistic way. In
this short article we have identified two major
difficulties with the use of the concept. First,
members of the public have insufficient knowledge of
actual sentencing practices. Second, there is a
significant but much neglected distinction between
people's sweeping impressions of sentencing and
their views in relation to particular cases of which
61
they know the facts. When it is proclaimed that the
public think the courts are too lenient, both these
difficulties are usually suppressed.
To construct sentencing policy on this flawed and
partial notion of public opinion is irresponsible.
Certainly, the argument is hard to resist that public
confidence in the law must be maintained. It is also
hard to resist the proposition that public confidence
in sentencing is low and probably falling. However,
since the causes of this lie not in sentencing practice
but in misinformation and misunderstanding, and
(arguably) in factors only distantly related to
criminal justice, ratcheting up the sentencing tariff
is hardly a rational way of regaining public
confidence.
This is not to deny that there is political capital to be
made, at least in the short term, by espousing
sentencing policies which have the trappings of
tough, decisive action. However, the underlying
source of public cynicism will not have been
addressed; and once politicians embark on this
route, they may be committing themselves long term
to a treadmill of toughness, ‘decisiveness’, and high
public expenditure. The political costs of
withdrawing from tough policies, once embarked on,
may be too high for politicians of any hue to
contemplate. The United States serves as an
example.
If the source of falling public confidence in
sentencing lies in lack of knowledge and
understanding, the obvious corrective policy is to
explain and to educate, rather than to adapt
sentencing policy to fit a flawed conception of public
opinion. But who should be the target of such
explanation and education? We have serious doubts
whether attempts to reach the ordinary citizen
directly will have any impact at all. On the other
hand, we think it feasible, within limits, to educate
those who shape public opinion. Newspaper and
television journalists, for example, responded well to
the initiatives in the 1980s intended to curb the
reporting of crime in ways that needlessly fuelled
fear of crime. A similar initiative should now be
mounted in relation to sentencing.””
62
63. In Reliance Petrochemicals Ltd. (supra), it was observed that
process of due course of administration of justice must remain
unimpaired. Public interest demands that there should be no
interference with the judicial process, and the effect of the judicial
decision should not be preempted or circumvented by public agitation or
publications.
64. The Judges have to be impartial towards the crime of voice, as
observed in Dharmkosh43 (Narad 3645) thus:
65. Meaning thereby, Judges have to be well versed in the laws and
impartial towards friends and foes. It emphasizes that the Judges
should be impartial towards friends and foes. In our opinion, the judicial
decision cannot be influenced by the opinions expressed in the media.
66. The lawyers and litigants going to press or media in a sub judice
matter is another question that is at the fore in this matter. While
hearing the matter, Shri Prashant Bhushan talked to the press and
media. The statement which was made by Shri Prashant Bhushan,
pursuant to the order dated 20.08.2020, was also published well in
63
advance in extenso, word to word, in the newspaper and media. In a sub
judice matter, releasing such statement to the press in advance is an act
of impropriety and has the effect of interfering with the judicial process
and the fair decision making and is clearly an attempt to coerce the
decision of the Court by the influence of newspaper and media, which
cannot be said to be conducive for the fair administration of justice and
would further tantamount to undue interference in the independent
judicial making process which is the very foundation of institution of
administration of justice. If such kind of action is resorted to in a sub
judice matter, that too by an advocate who is facing a criminal contempt,
it virtually tantamount to using a forum or platform which is not
supposed to be used ethically and legally. More so, in a serious case of
criminal contempt and particularly after the conviction has been
recorded by this Court, it indicates that the tolerance of the Court is
being tested for no good reasons by resorting to unscrupulous methods.
67. Dr. Dhavan, learned senior counsel, fairly stated that in a sub
judice matter, it is not open to the lawyer or litigant to go to press or
media and make the statement. However, it appears that this good
sense and counsel by a senior lawyer of long standing has not prevailed
upon the contemnor. Dr. Dhavan, also stated that statement should not
have been released by Shri Prashant Bhushan to press or media. It was
64
impermissible for him to do so. We put on record our appreciation for
the fairness of Dr. Dhavan, learned senior counsel. He has asked us to
lay down guidelines for future guidance to the members of the Bar and
the litigants on such aspects.
In Ref: Factors for Sentencing
68. Dr. Dhavan, learned senior counsel, submitted that relevant factors
required to be taken into consideration for sentencing are the offender,
the offence and statutory or other defences. He has also referred to the
guidelines issued in the case in Re: S. Mulgaokar (supra).
69. With respect to the offender, as stated by Shri Prashant Bhushan
in his affidavit that he is a lawyer having of 35 years of standing and has
also pursued various public interest litigations. No doubt that this
would be a relevant factor while balancing the decision to be taken by the
Court. However, at the same time, the uncalled statements made in the
affidavit for pursuing truth as a defence can also not be ignored. Since,
in 2009 contempt petition various questions have been framed by this
Court which will have to be answered, the pendency of the said contempt
petition cannot be considered to be a factor in reflecting on the question
of sentence in the present matter. Even the present Attorney General
had filed a contempt case i.e. Contempt Petition (Crl) No.1/2019 (titled
65
The Attorney General of India v. Prashant Bhushan), which is pending
before this Court.
70. Dr. Dhavan, learned senior counsel, argued that offence is also a
factor that is to be taken into consideration while imposing the
punishment. He argued that offence must be clear without ambiguity,
and the potential offender must understand where and when he is guilty
of the offence. He submitted that scandalising the Court is notoriously
vague, as observed in Shreya Singhal (supra) and that the Court has to
be careful in exercising the jurisdiction, as held in Baradakanta Mishra
(supra).
71. In respect to the submission made by Dr. Dhavan, learned senior
counsel, with regard to the inconsistency between the judgments of this
Court in E.M. Sankaran Namboodripad (supra) and P.N. Duda (supra)
is concerned, we are not concerned with the final outcome of the decision
in these two cases. However, it could be seen that the legal position
enunciated in both the judgments is one and the same. May be in one
case by applying the same law the court found the statements made were
contemptuous and in other case the Court found that the statement
made was not contemptuous. With regard to the reference made by Dr.
Dhavan, learned senior counsel, regarding the judgment in Re: Times of
66
India and Hindu, (2013) Cr.L.J. 932, to which one of us (Mishra, J.) was
a party is concerned, the reliance on the said judgment, in our view, is
misplaced. Firstly, applying the test as to who is the person who makes
the statement, it could be seen that in the said case the statement was
made by a politician, however, in the present case, the statement is made
by a lawyer who has a standing of more than 35 years. Secondly, in the
said case the statement was not made specifically against anyone but
was a general statement, in the present case the statement is made
against the past four Chief Justices and the Judges, who have occupied
the office of this Court for last six years.
72. Dr. Dhavan, learned senior counsel, also argued that contempt
jurisdiction is vague and colonial. For this, he has relied upon Justice
Wilmot’s judgment in R. v. Almon, (1965) Wilm 243, Mcleod v. St.
Aubyn, (1899) AC 549 (PC), R. v. Gary, (1900) 2 QB 36 DC, R. v.
Colsely, 9 May 1931 DC, Dhoorika v. Director of Public
Prosecutions (Commonwealth Lawyers’ Association Intervening),
(2015) AC 875. He urged that in the last century, this jurisdiction has
been used only for 31 years and never after that in England since 1931.
73. He has also referred R. v. Blackburn, (1968) 1 ALL ER 763,
wherein Lord Denning refused to convict or sentence for contempt. He
67
also referred that in the Spycatcher affair, the Daily Mirror had a banner
heading stating in bold “YOU FOOLS” and put the picture of the Law
Lords upside down, and no contempt was initiated. Further, in 2019, in
the Parliament suspension case, the English Supreme Court Judges were
called ‘enemies of democracy,' but no action was taken.
74. The submissions that are sought to be made in effect amount to
reviewing the view taken by us in the convicting judgment. We need not
again consider the submissions made by Dr. Dhavan, learned senior
counsel, inasmuch as all his submissions have been elaborately
considered in the convicting judgment. Taking into consideration the
view taken by us in the convicting judgment we cannot accede to the
request of Dr. Dhavan, learned senior counsel that the decision dated
14.08.2020 should be withdrawn or recalled.
75. We find no force in the submission raised to recall the judgment,
suo motu otherwise. We have exercised the jurisdiction with full
circumspection, care, and precautions. We find no merits in the
submission. While sentencing, we have to act with objectivity in relation
to the person and the actual effect, as held in Murray & Co. v. Ashok
Kumar Newatia and Another, (2000) 2 SCC 367.
68
76. Dr. Dhavan, learned senior counsel, also argued that there is no
conflict between the constitutional jurisdiction under Articles 129 and
215 of the Constitution and the provisions of the Contempt of Courts
Act, 1971. For this purpose, he has relied upon Pallav Sheth (supra), in
which it was observed:
“30. There can be no doubt that both this Court and High
Courts are courts of record and the Constitution has given
them the powers to punish for contempt. The decisions of this
Court clearly show that this power cannot be abrogated or
stultified. But if the power under Article 129 and Article 215 is
absolute, can there by any legislation indicating the manner
and to the extent that the power can be exercised? If there is
any provision of the law which stultifies or abrogates the power
under Article 129 and/or Article 215, there can be little doubt
that such law would not be regarded as having been validly
enacted. It, however, appears to us that providing for the
quantum of punishment or what may or may not be regarded
as acts of contempt or even providing for a period of limitation
for initiating proceedings for contempt cannot be taken to be a
provision which abrogates or stultifies the contempt
jurisdiction under Article 129 or Article 215 of the
Constitution.”
77. The case of Maheshwari Peri & others v. High Court of
Judicature at Allahabad, (2016) 14 SCC 251, was also referred. The
relevant paragraph is as under:
“10. ….. Be it an action initiated for contempt under Article
129 of the Constitution of India by the Supreme Court or
under Article 215 of the Constitution of India by the High
Court, it is now settled law that the prosecution procedure
should be in consonance with the Act, as held by this Court in
Pallav Seth.”
69
78. We find that this question has been dealt with in the convicting
judgment and what is the procedure under Articles 129 and 215 of the
Constitution has been considered In Re: Vijay Kurle and Ors., 2020
SCC Online SC 407. We will not repeat them again as they are referred
to in the convicting judgment.
79. Dr. Dhavan, learned senior counsel, urged that a copy of the
complaint/petition filed by Shri Mahek Maheshwari, was not made
available to the contemnor. He has submitted that said Shri Mahek
Maheshwari was associated for some time with some political party. He
further submitted that as such the person who filed a petition was a
relevant question required to be considered by this Court. He has also
relied upon Rule 6(2) of the Rules to Regulate Proceedings for Contempt
of the Supreme Court, 1975 read with Article 145 of the Constitution,
which provided that a copy of the complaint must be supplied to the
contemnor.
80. No doubt that though initially the said Mr. Mahek Maheshwari had
filed a petition in this Court which was placed on the administrative side
of this Court, this Court had decided to initiate suo motu proceedings.
Only that part of the petition i.e. the first tweet made by the contemnor
was one of the basis for taking action against the contemnor. The
relevant tweet has specifically been mentioned in our order dated
70
22.07.2020. No other part of the petition was taken into consideration
for proceeding against the contemnor. Insofar as the second tweet is
concerned, which was on the basis of the report published in the Time of
India dated 22.07.2020, we had decided to take suo motu cognizance of
the same. Thus, it will not be of any relevance as to whether a copy of
the petition filed by Shri Mahek Maheshwari was supplied or not. The
suo motu cognizance was taken only on the basis of the said two tweets,
which were specifically quoted in our order dated 22.07.2020. As held in
catena of cases, the only requirement is that the Court must follow
principles of natural justice. The Court specifically made aware the
contemnor about the basis on which the Court took suo motu
cognizance. Not only that but the contemnor understood the basis on
which the Court was proceedings, as is evident from the bulky affidavit
in reply filed by him. Contention in this respect, in our view is without
substance.
81. Argument raised by Dr. Dhavan that Free Speech is part of Article
19(1)(a) of the Constitution cannot be disputed. However, we are not
convinced that while exercising power under Article 129 of the
Constitution, we are interfering with the rights under Article 19(1)(a) of
the Constitution. Supreme Court being a court of record can punish for
contempt. He also argued about the Freedom of Press, which is beyond
71
doubt an important aspect of democracy. Free Speech is essential to
democracy can also not be disputed, but it cannot denigrate one of the
institutions of the democracy. As observed in Maneka Gandhi v. Union
of India and Another, (1978) 1 SCC 248, democracy is based on free
debate and open discussion, however, cannot go to the extent of the
scurrilous attack and shaking the faith of the general public in such
institution. Freedom of speech and expression includes the right to
impart and receive information, which includes freedom to hold an
opinion as was held in Secretary, Ministry of Information and
Broadcasting, Government of India & Ors. v. Cricket Association of
Bengal & Ors., (1995) 2 SCC 161. No doubt, one is free to form an
opinion and make fair criticism but if such an opinion is scandalous and
malicious, the public expression of the same would also be at the risk of
the contempt jurisdiction. No doubt that the contention raised by Dr.
Dhavan, learned senior counsel, that free speech, as envisaged under
Article 19(1)(a) of the Constitution is a fundamental right. However, it
cannot be forgotten that rights under Article 19(1) of the Constitution are
subject to reasonable restrictions under Article 19(2) of the Constitution
and rights of others cannot be infringed in the process. The same have
to be balanced. While exercising the powers under Article 129 of the
Constitution, the Court will have to strike a balance between the right
72
under Article 19(1)(a) and the restrictions under Article 19(2) of the
Constitution. No doubt that, as urged by Dr. Dhavan, freedom of press
is also an important aspect in a democracy. We cannot control the
thinking process and words operating in the mind of one individual, but
when it comes to expression, it has to be within the constitutional limits.
Lawyers' noble profession will lose all its significance and charm and
dignity if the lawyers are permitted to make any malicious, scandalous
and scurrilous allegations against the institution of which they are part.
The lawyers are supposed to be fearlessly independent and robust but at
the same time respectful to the institution.
82. Dr. Dhavan, learned senior counsel, also argued that as per Section
3(22) of the General Clauses Act, things shall be considered to be done in
good faith, in fact, if done honestly, whether it is done negligently or not.
Dr. Dhavan, submitted that if defence of good faith, as provided in
Section 3(22) of the General Clauses Act is taken into consideration, it
will have to be held that the act done by the contemnor was done in good
faith if it was done honestly, may be done negligently. The perusal of
the comments can neither be said to be done honestly or in good faith.
Reliance has been placed on Reynolds v. Times Newspapers Ltd. and
Others, (1999)4 All ER 609, it has been observed that the true test is
whether the opinion, however exaggerated, obstinate or prejudiced, was
73
honestly held by the person expressing it. It cannot be said that a
person who is the lawyer having 35 years standing, who has made
malicious and scandalous comments in the tweets and amplified them by
the averments made in the affidavit in reply which have the effect of
denigrating the very institution to which he belongs, can be made
honestly or in good faith.
83. Dr. Dhavan, learned senior counsel, submitted that applying the
doctrine of proportionality the balance will have to tilt in favour of the
fundamental rights as against restrictions. He argued that
reasonableness means substantive and procedural reasonableness and
imports proportionality, and he has placed reliance on State of Madras
& Ors. v. V.G. Row, (1952) SCR 597, Chintaman Rao & Ors. v. State
of Madhya Pradesh, (1950) SCR 759, Papnasam Labour Union v.
Madura Coats Ltd. and Ors., (1995) 1 SCC 501, State of Andhra
Pradesh & Ors. v. McDowell and Co. & Ors., (1996) 3 SCC 709, Union
of India (UOI) & Ors. v. G. Ganayutham (Dead) by Lrs., (1997) 7 SCC
463, Teri Oat Estates (P) Ltd. v. U.T. Chandigarh & Ors., (2004) 2 SCC
130, Om Kumar & Ors. v. Union of India (UOI), (2001) 2 SCC 386,
Anuj Garg & Ors. v. Hotel Association of India & Ors., (2008) 3 SCC 1
and Chairman, All India Railway Rec. Board & Ors. v. K. Shyam
74
Kumar & Ors., (2010) 6 SCC 614. Thus, he has submitted that the
conviction be recalled, and no sentence be imposed. We have weighed
the pros and cons, rights, and limitations and thereafter rendered a
considered decision regarding conviction, and as discussed in this order,
on consideration of proportionality we find no room to entertain this
submission. The same is repelled. Shri Dhavan, learned senior
counsel, also relied upon the following statement in Andre Paul Terence
Ambard v. The Attorney General of Trinidad and Tobago, (1936) All
ER 704, the following passage has been relied upon:
“… no wrong is committed by any member of the public
who exercises the ordinary right of criticizing in good faith
in private or public the public act done in the seat of
justice. The path of criticism is a public way: the
wrongheaded are permitted to err therein: provided that
members of the public abstain from imputing improper
motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism
and not acting in malice or attempting to impair the
administration of justice, they are immune. Justice is not
a cloistered virtue: she must be allowed to suffer the
scrutiny and respectful even though outspoken
comments of ordinary men.”
(Emphasis supplied)
84. There can be no doubt about the principle that any member of the
public has a right to criticize in good faith in private or public, the public
act done in the seat of justice. However, the members of the public are
required to abstain from imputing improper motives to those taking part
in the administration of justice. Right to fair criticism is contrasted
75
against acting in malice or attempting to bring down the reputation of
the institution of administration of justice. We find that even after
recording the judgment of conviction, no remorse has been expressed by
the contemnor, nor apology has been submitted. It was argued that
apology is being coerced from the contemnor. In the supplementary
statement dated 24.08.2020, Shri Prashant Bhushan has stated that “At
the hearing the court asked me to take 23 days to reconsider the
statement I made in the court.” However, the order specifically states,
“We have given time to the contemnor to submit unconditional apology, if
he so desires.” We find that by now it is a settled position of law that
the Court speaks through its judgments and orders. Virtual exchange
during the course of the proceedings is not what is the order of the Court
but it could be a tentative expression of that exchange during the course
of hearing. However, ultimately what is final is the order of the Court,
which has the seal of it. It would have been better if the aforesaid part
was not mentioned in the supplementary statement, but we cannot stop
anybody from making any statement, but we consider it not to be a
proper statement as to what should have been the words in the order of
the Court. We have not coerced the contemnor to submit the apology
and have clearly mentioned that time was given to submit unconditional
apology, “if he so desires”. It was his decision to submit it or not.
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However, he has chosen to submit a supplementary statement. Thus,
the submission raised by Dr. Dhavan, learned senior counsel, as to
coercion is without substance. The desire of learned Attorney General
that he/contemnor should withdraw the allegation and express regret
has also gone unheeded.
85. Dr. Dhavan, has also referred to the observation of Krishna Iyer, J.,
in Re: S. Mulgaokar (supra). We have considered the same in the
convicting judgment and followed the principle laid down therein. No
doubt that while exercising the right of freedom of speech the fair
criticism of the system is welcome and the Judges cannot be hyper
sensitive even when distortions and criticism overstep the limit.
However, the same cannot be stretched to permit to make malicious and
scandalous statement. The Court has to act only in the case where the
attack is beyond a permissible limit, the strong arm of the law strikes a
blow on him who challenges the supremacy of the rule of law by fouling
its source and stream.
86. We have applied the aforesaid guidelines and standards.
87. Learned Attorney General submitted that the Court should exhibit
magnanimity. Dr. Dhavan, learned senior counsel, invoked the
statesmanship from this Court. Learned Attorney General stated that if
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there is an expression of regret and if the affidavit is withdrawn, perhaps
a quietus can be given to the proceeding. However, the contemnor
declined to do so. Learned Attorney General also submitted that in
Arundhati Roy’s case, it was held that “our shoulders are broad enough
to shrug off comments against it.” No doubt about it, our approach has
to be like one stated by the learned Attorney General. In spite of learned
Attorney General appealing that it was not too late for the contemnor to
express regret as he did in the other case regarding contempt filed by
learned Attorney General and one more chance be given, but that was
virtually declined flatly by Dr. Dhavan, learned senior counsel, in the
presence of the contemnor. It is apparent that in both the statements
made by the contemnor, he is sticking to his ground, and he is not at all
realizing that any wrong was done by him to the institution. At the same
time, he has expressed the faith in the institution and he has submitted
that an apology cannot be a mere incantation and an apology has to be
as the Court itself put be sincerely made. He has further stated that he
made the statement bona fide and with truthful details which had not
been dealt with by the Court. He is insistent and has no remorse about
what he has stated in the defence. He has not gone by the advice of the
learned Attorney General to withdraw the same and to take if off the
record. Shri Prashant Bhushan being a person well versed with law
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ought to have given due weightage to the advice rendered by the learned
Attorney General who has pleaded not to sentence him, at the same time
maintained that the statements made in the affidavit in reply could not
be taken into consideration for considering the case of Mr. Prashant
Bhushan of truth as a defence. When seniormost functionary in the
legal profession of the stature of the learned Attorney General was giving
an advice to express regret and withdraw the wild allegations a lawyer of
such a long standing was expected to give due respect to it. Even our
request made to him has gone in vain. Thus, we feel that the simple
issuance of warning is not going to suffice in the instant case.
88. It was argued by Dr. Dhavan, learned senior counsel, that in case
the contemnor is sent to the imprisonment, he will attain martyrdom,
and he also should not be debarred from the practice. He further stated
that the Court could not pass an order debarring the contemnor from
practicing unless a prior notice was issued to him and an opportunity of
hearing was given in that regard.
89. Pursuant to the conviction in a criminal case, the Bar Council of
India can suspend the enrolment, if it so desires. It is also open to this
Court to debar from practicing in a Court, as held in Supreme Court Bar
Association (supra). We are not afraid of sentencing the contemnor
either with imprisonment or from debarring him from the practice. His
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conduct reflects adamance and ego, which has no place to exist in the
system of administration of justice and in noble profession, and no
remorse is shown for the harm done to the institution to which he
belongs. At the same time, we cannot retaliate merely because the
contemnor has made a statement that he is neither invoking the
magnanimity or the mercy of this Court and he is ready to submit to the
penalty that can be lawfully be inflicted upon him for what the Court has
determined to be an offence. He has even invoked the Father of the
Nation, Mahatma Gandhi’s statement, which was made by Mahatma
Gandhi at the conclusion of the trial against him.
90. The Court, from the very beginning, was desirous of giving quietus
to this matter. Directly or indirectly, the contemnor was persuaded to
end this matter by tendering an apology and save the grace of the
institution as well as the individual, who is an officer of the Court.
However, for the reasons best known to him he has neither shown regret
in spite of our persuasion or the advice of the learned Attorney General.
Thus, we have to consider imposing an appropriate sentence upon him.
91. Duly balancing the factors urged by Dr. Dhavan as to the offender,
offence, the convicting judgment and the defence taken we have to decide
the question of sentence. In our considered view, the act committed by
the contemnor is a very serious one. He has attempted to denigrate the
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reputation of the institution of administration of justice of which he
himself is a part. At the cost of repetition, we have to state that the faith
of the citizens of the country in the institution of justice is the foundation
for rule of law which is an essential factor in the democratic set up.
92. We have given deep thought as to what sentence should be
imposed on the contemnor. The conduct of the present contemnor also
needs to be taken into consideration. This Court in Tehseen Poonawala
(supra) has observed that the said matter was a fit matter wherein
criminal contempt proceedings were required to be initiated. However,
the court stopped at doing so observing that it would have been an
unequal fight. The learned Attorney General had also initiated contempt
proceedings against the present contemnor, however, on the contemnor
submitting regret, the learned Attorney General sought withdrawal of the
said proceedings. However, the said proceedings are still pending. In the
present matter also not on one occasion but on several occasions, we not
only gave opportunity but also directly or indirectly pursuaded the
contemnor to express regret. Not only that the learned Attorney General
had also suggested that it was in the fitness of things that a contemnor
expresses regret and withdraws the allegation made in the affidavit in
reply, which request was not heeded to by the contemnor. The
contemnor not only gave wide publicity to the second statement
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submitted before this Court on 24.08.2020 prior to the same being
tendered to the Court, but also gave various interviews with regard to
sub judice matter, thereby further attempting to bring down the
reputation of this Court. If we do not take cognizance of such conduct it
will give a wrong message to the lawyers and litigants throughout the
country. However, by showing magnanimity, instead of imposing any
severe puishment, we are sentencing the contemnor with a nominal fine
of Re.1/ (Rupee one).
93. We, therefore, sentence the contemnor with a fine or Re.1/ (Rupee
one) to be deposited with the Registry of this Court by 15.09.2020, failing
which he shall undergo a simple imprisonment for a period of three
months and further be debarred from practising in this Court for a
period of three years.
94. Accordingly, the present proceedings including all pending
applications, if any, shall stand disposed of.
……………………………….J.
(Arun Mishra)
……………………………….J.
(B.R. Gavai)
……………………………….J.
(Krishna Murari)
New Delhi;
August 31, 2020.
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