CASE COMMENT

IN RE PRASHANT BHUSHAN VS COURT

SUBMITTED TO:
Prof. Santhy Kameswari
Prof. Balakrishnan
(Criminal Law Dept.)

SUBMITTED BY:
KHUSHI GUPTA
I Year, Semester 2, B.A. LL. B (Hons)
(2020-5LLB-99)

NALSAR LAW UNIVERSITY, HYDERABAD

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 TABLE OF CONTENTS

[Link]. CONTENTS PAGE NO.

1. INTRODUCTION 3

2. FACTS OF THE CASE 4-5

3. ARGUMENTS OF RESPONDENT (contemnor no.1) 6-8

4. ARGUMENTS OF RESPONDENT (contemnor no.2) 9

5. ARGUMENTS OF THE PETITIONER 10 - 11

6. JUDGEMENT 12 - 14

7. CONCLUSION 15

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 INTRODUCTION

The fundamental question the Supreme Court had to answer was whether the tweets of Adv.
Prashant Bhushan posted on 27th and 29th June 2020 amounted to criminal contempt of the
court. 1The case was initiated by the Supreme Court itself when it took suo moto cognizance of
the tweets. The supreme court derives this power from the constitution.1

The two tweets were in relation to the photo of Chief Justice of India, Justice [Link]
accompanied by a motorcycle. The supreme court called upon both Prashant Bhushan and
Twitter India for proceedings against the tweets published by former on the latter’s platform.

Mahek Maheshwari, represented by advocate Anuj Saxena, filed a petition against Bhushan and
Twitter India on 2 July, requesting the court to initiate contempt proceedings for the tweet,
alleging that it 'inspired a feeling of no-confidence' in the independence of the judiciary and
amounted to 'scandalizing the court'.

The paper has been split into several sections. The first will give the background facts of the
case. The next will contain the arguments put forth by both sides and the judgement of the Court
itself. The analysis of the judgement will majorly focus on the practical implications of the
judgement on the economy and what such a decision may hold for the future.

1
Section 2(c ) of the contempt of courts Act. 1971

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 FACTS OF THE CASE

A petition was filed by Mahek Maheshwari against the tweets of Adv. Prashant Bhushan which
reads as follows:-

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

And another tweet which was read as :-

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

The petition requires the permission of the Attorney General of India for being listed for
hearing1. This petition however, was taken into consideration by the administrative side of the
court which found it appropriate for hearing before the court.

The court went through the petition and found that the tweets when looked upon were prima
facie were capable of undermining the authority of the Supreme Court. The tweets have brought
disrepute by questioning the dignity of the institution of the Supreme Court.

Taking these things into consideration, the court decided to accept the petition and initiate
proceedings on its own accord without the permission of the Attorney General, [Link]
to do the same. The court then issued notice to Adv. Prashant Bhushan, Twitter India and the
Attorney General of India.
Sr. Adv. Dushyant Dave appeared for Prashant Bhushan and Shri Sajan Poovayya, learned
senior counsel has appeared along with Mr. Priyadarshi Banerjee and Mr. Manu Kulkarni on
behalf of Twitter.

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On 22nd July 2020, the case was heard for the first time before a bench of three judges, namely,
Justice Arun Mishra, Justice [Link], and Justice Krishna Murari.

In response to the notice issued by the court, both the alleged parties (Prashant Bhushan and
Twitter India) have submitted their affidavits in reply. Mr. Prashant Bhushan, the alleged person
No.1, has filed a detailed affidavit running into 134 pages, which along with the Annexures runs
into 463 pages.

We have,

RESPONDENT -

CONTEMNOR NO.1- Adv. Prashant Bhushan

CONTEMNOR NO.2 - Twitter India inc.

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 ARGUMENTS OF THE RESPONDENT
(Contemnor No. 1 )

1. In pertinence to the contempt allegations of the first tweet, the respondent submitted that
the tweet was borne out of anguish that he felt by seeing the picture. They said that the
court had not been physically functioning for the past three months due the spread of
global pandemic COVID-19 in the country. During this time, the poor, destitute and those
in detention could not get their grievances redressed, they were facing some major
problems of hunger, unemployment, sanitation, housing etc. due to this inability to
redress these issues, the fundamental rights of these people were being violated.

2. The cases in the court were being piled up due to the lack of physical hearings and some
important cases which were being heard, were not going through a satisfactory hearing.
The virtual hearings were kept in order due to the fears of Covid-19, but the respondent
felt anguish that the CJI himself was going out in public places.

3. With all this happening in the country, the respondent said that seeing the photo of the
Chief Justice of India on a bike, without the mandatory face mask in public with many
people around him caused anguish in him. He submitted that, if this expression of his
anger in the form of tweets amounts to contempt then it would stifle free speech and
would constitute an unreasonable restriction on the right of a citizen under Article
l9(1)(a) of the Constitution.

4. In pertinence to the second tweet, the respondent submitted that the tweet in question was
his bona fide opinion about the state of affairs in the country in the past six years and the
role of the Supreme Court and in particular the role of the last 4 CJIs. the tweet was
broken down into three parts.

5. The respondent further contended that the institution of judiciary was just like other
institutions of democracy and hence, it’s state of affairs could be discussed openly among

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 the general public. It was also said that the opinions expressed in this regard may be
outspoken, disagreeable or even unpalatable, could not be regarded as contempt of court.

6. Another main contention of the respondent was that the said tweet was not against the
proceedings of the supreme court and/or directed to reduce the credibility of the supreme
court. It was a comment upon the conduct of the Chief Justice of India and other past
4CJI’s.

7. The respondent argues that he has tried to raise the issues of grave concern regarding the
manner in which four CJIs have used, or failed to use, their powers as “Master of the
Roster" to allow the spread of authoritarianism, majoritarianism, stifling of dissent,
widespread political incarceration and so on.

8. At last the contemnor no.1 has said that to suggest that the Chief Justice of India is the
Supreme Court of India, or that the Supreme Court of India is the Chief Justice is to
undermine the judicial system.

9. Shri Dave appearing on behalf of contemnor no.1, submits, that what should weigh with
the Court is that, whether the reflection on the conduct or character of a judge is within
the limits of fair and reasonable criticism and whether it is mere libel or defamation of the
Judge.2

10. Further, the learned Senior Counsel submits, that when proceedings in contempt are
taken for vilification of the judge, the question which the court has to ask is whether the
vilification is of the judge as a judge or it is the vilification of the judge as an individual. 2

11. The learned Senior Counsel submits, that the court should be willing to ignore, by a
majestic liberalism, trifling and venial offences. It is submitted that the Court will not be
prompted to act as a result of an easy irritability. 4

2 Baradakanta Mishra vs The Registrar Of Orissa High Court & another

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 ARGUMENTS OF THE RESPONDENT
(Contemnor No. 2 )

1. The second contemnor, is a global platform for micro-blogging. It can be used by people
for communication and self-expression. It’s main argument was that the alleged content
was neither authored nor published by itself. Twitter just provided the platform, it had no
relation to the content of the tweets.

2. The respondent here cited the Information Technology Act, to establish itself as the
‘intermediary’, thus, asserting that it was not the originator of the content, but a mere
display platform of it.

3. It was submitted that the alleged contemnor No.2 had no editorial control on the tweets. It
was further submitted that under Section 79 of the Information Technology Act provides
safe harbour to the intermediary for any objectionable posts on its platform posted by its
users.

4. The last argument of contemnor no. 2 was that as soon as the order dated 22.07.20 was
delivered to them, they took immediate cognizance of the impugned tweets, blocked the
access to the said tweets and disabled the same.

5. On these grounds of arguments, the contemnor no.2 wishes to get itself discharged from
the charges levelled against them in the petition.

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 ARGUMENTS OF THE PETITIONER

1. The court went on to defend the validity of jurisdiction that was challenged by the
respondent through quoting article 129 of the indian constitution which says that “the
Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.”This is a constitutional power which
cannot be taken away or in any manner abridged by statute.

2. It was contended that the legislation such as ‘contempt of court act 1971’ cannot denude,
abrogate or nullify, the power of the Supreme Court to punish for contempt under Article
129 or vest that power in some other court.

3. It was argued that as far as the suo motu petitions are concerned, there is no requirement
for taking consent of anybody, including the learned Attorney General because the Court
is exercising its inherent powers to issue notice for contempt.

4. the judiciary cannot be immune from criticism. However, when that criticism is based on
obvious distortion or gross mis-statement and made in a manner which seems designed to
lower respect for the judiciary and destroy public confidence in it, it cannot be ignored.

5. The jurisdiction is not intended to uphold the personal dignity of the Judges. However, if
the attack on the Judge functioning as a Judge substantially affects administration of
justice, it becomes a public mischief punishable for contempt and it does not matter
whether such an attack is based on what a judge is alleged to have done in the exercise of
his administrative responsibilities.

6. Immediately after suspension of physical hearing, the Court started functioning through
video conferencing. From 23.3.2020 till 4.8.2020, various benches of the Court have been
sitting regularly and discharging their duties through video conferencing. The total
number of sittings that the various benches had from 23.3.2020 till 4.8.2020 is 879.
During this period, the Court has heard 12748 matters.

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 JUDGEMENT

the Constitution Bench has held, that the summary jurisdiction exercised by superior
courts in punishing contempt of their authority exists for the purpose of preventing
interference with the course of justice and for maintaining the authority of law as is
administered in the courts; that the object of contempt proceedings is not to afford
protection to judges personally from imputations to which they may be exposed as
individuals.

The Constitution Bench held that a publication which attacks on individual judges or the
court as a whole with or without reference to a particular case, casting unwarranted and
defamatory aspersions upon the character or ability of the judges, would come within the
term of scandalizing the Court.

The Court came to the conclusion that the offending passage and the time and place of its
publication certainly tended to hinder or obstruct the due administration of justice and
was a contempt of Court.

insinuations which are derogatory to the dignity of the Court and are calculated to
undermine the confidence of the people in the integrity of the Judges will amount to
contempt of the court.

In the judgment cited, it was ruled that “ a scurrilous attack on a Judge in respect of a
judgment or past conduct has no adverse effect on the due administration of justice. This
sort of attack in a country like ours has the inevitable effect of undermining the
confidence of the public in the Judiciary. If confidence in the Judiciary goes, the due
administration of justice definitely suffers.”

The Constitution Bench came to the conclusion, that a vilificatory criticism of a Judge
functioning as a Judge even in purely administrative or non- adjudicatory matters
amounts to ‘criminal contempt’.

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It has been held, that to punish an Advocate for Contempt of court must be regarded as
an extreme measure, but to preserve the proceedings of the Courts from being deflected
or interfered with, and to keep the streams of justice pure, serene and undefiled, it
becomes the duty of the Court to punish the contemnor in order to preserve its dignity.

It has been held that any personal attack upon a judge in connection with the office he
holds is dealt with under law of libel or slander. Yet defamatory publication concerning
the judge as a judge brings the court or judges into contempt, a serious impediment to
justice and an inroad on the majesty of justice.
Making allegations and thereby giving an impression that the CJI is enjoying riding a
bike, while he keeps the SC in lockdown and thereby denies citizens their fundamental
right to access justice, is undoubtedly false, malicious and scandalous.

In pertinence to the second tweet, the court held that it is directed against the Supreme
Court and gives an impression that the Supreme Court has a particular role in the
destruction of democracy in the last six years and the last four CJIs had a more particular
role in the same. It is clear that the criticism is against the entire Supreme Court and the
last four CJIs.

For the alleged contemnor No.2 the court accepted the explanation given by it, that it is
only an intermediary and does not have any control on what it’s users post on the site. It
also deleted the tweets immediately on the notice of the court. Therefore discharge notice
was issued to the alleged contemnor No.2.

The alleged contemnor No.1 – Mr. Prashant Bhushan was held guilty of having
committed criminal contempt of the Supreme Court.

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 CONCLUSION

Post this judgement, we have gained a lot of clarity over the provision of contempt and the
powers that lie with the Supreme Court in relation to this. This is more important in the current
case of growing contempt cases being filed in the country. The Supreme Court has described in
much detail as to what constitutes contempt and what does not. The comments made on judges in
the capacity of an individual does not amount to criminal contempt, but the comments made on
the judge in his capacity of serving as a judge and challenging his services to the judiciary does
amount to contempt.

It can be that this case has answered a lot of questions of the general public. From the
explanation to the virtual working of the court to the importance of respect and credibility
required in the system. It makes us question in a wider view, if the court can effectively work in a
virtual manner so as to not violate the rights of the poor ? What is the fine line of distinction
between criminal contempt and freedom of speech? What constitutes criticism against a judge
and criticism against his decisions?

The court sought an unconditional apology from Mr Bhushan but he refused, saying he believed
in what he tweeted. He said that the right to free speech includes the right to criticise members of
the judiciary. Then the court fined him with 1Re, to be paid within some time, failing which he
would be imprisoned for three months.

Some people have disagreed with the judgement, saying it goes against the free speech laws of
the country, and that the judiciary is an institution like any other institution of the country that
has to take the public's opinion positive or negative to its workings. While others have applauded
the judgement for keeping the sanctity of the institution intact, and for using correct powers in
correct ways to curb the attempt made to demean the institution of judiciary.

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