PROFESSIONAL ETHICS & PROFESSIONAL

ACCOUNTING SYSTEM ASSIGNMENT

TOPIC: Case law- “In Re: Prashant Bhushan & Another, AIR 2020 SC
4114”

SUBMITTED TO: SUBMITTED BY:

PROF. GAUTAM KUMAR Nikhil
Department of Laws Roll no. – 118/23
Section: M
Year:3RD
 Index

S.No. TOPIC Page Number

1 Table of cases 3

2 Introduction 4

3 Brief facts of the case 5

4 Issues Framed 6

5 Referred Statutory Provisions 7

6 Arguments of Parties 8-11

7 Judgement and Ratio Decidendi 12

8 Critical Analaysis 13-14

9 Conclusion 15

10 Bibliography 16

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 Table of Cases Referred

S.No. CASE NAME Case Citation /

Importance
1. Baradakanta Mishra v. Registrar, Orissa High AIR 1974 SC 710 — threshold of
Court harm to administration of justice

2 E.M.S. Namboodiripad v. T.N. Nambiar E.M.S. Namboodiripad v. T.N.

Nambiar (1970 AIR 2015 SC)

3 Indirect Tax Practitioners’ Association v. R.K. Indirect Tax Practitioners’ Association v.

Jain (2010) R.K. Jain (2010) 8 SCC 281

4 Arundhati Roy, In Re AIR 2002 SC 1375 — example of

contempt for public commentary

5 C.K. Daphtary v. O.P. Gupta C.K. Daphtary v. O.P. Gupta (1971 AIR
1132 SC)

6 P.N. Duda v. P. Shiv Shankar (1988) P.N. Duda v. P. Shiv Shankar (1988) 3
SCC 167

7 Subramanian Swamy v. Union of India. AIR 2016 SC 2728 — modern

limits on defamation, free speech

8 Bal Thackrey v. Harish Pimpalkhute (2005) Bal Thackrey v. Harish

Pimpalkhute (2005) 1 SCC 254

9 In Re S. Mulgaokar AIR 1978 SC 727 — tolerance for

criticism BY JUDICIARY

10 Supreme Court Bar Association v. Union of Supreme Court Bar Association v.

India (1998) Union of India (1998)1 4 SCC 409
11 Baradakanta Mishra v. Registrar of Orissa High Court Baradakanta Mishra v. Registrar of
Orissa High Court (1974 AIR 710 SC)

12 Delhi Judicial Service Assn. v. State of Gujarat Delhi Judicial Service Assn. v. State of
Gujarat (1991 AIR 2176 SC)
13 R.K. Anand v. Registrar, Delhi High Court, (2009) R.K. Anand v. Registrar, Delhi High
Court, (2009) 8 SCC 106

14 Re Vijay Kurle & Ors Contempt Pet. (Criminal) No. 2 of 2019

(Supreme Court of India, 27 April 2020),
2020 SCC OnLine SC 407.

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 INTRODUCTION

The case In Re: Prashant Bhushan & Anr. (AIR 2020 SC 4114) stands as a landmark judgment
in the jurisprudence of contempt of court and freedom of speech in India. Delivered by a
three-judge Bench of the Supreme Court comprising Justice Arun Mishra, Justice B.R. Gavai,
and Justice Krishna Murari, the decision revisited the tension between an individual’s right
to freely express opinions under Article 19(1)(a) and the judiciary’s inherent power to punish
for contempt as recognized under Articles 129 and 215 of the Constitution of India.

The controversy arose when senior advocate Prashant Bhushan published two tweets—one
criticizing the role of the Supreme Court and its Chief Justices in the alleged “destruction of
democracy” during the preceding years, and another commenting on the Chief Justice of
India sitting on a Harley-Davidson motorcycle during the COVID-19 lockdown. These tweets
were perceived as statements that could potentially lower the authority of the Court and shake
public confidence in the institution of justice. Consequently, the Supreme Court took suo motu
cognizance of the matter under the Contempt of Courts Act, 1971, framing charges
of criminal contempt against Bhushan.

This case reignited the age-old debate on where to draw the line between fair criticism of
judicial conduct and contemptuous attacks that scandalize the court. While the petitioner
asserted his right to critique the judiciary as a cornerstone of democratic accountability, the
Court emphasized the necessity of preserving the dignity, authority, and faith in the judicial
system, which forms the very foundation of the rule of law. Ultimately, the judgment serves as
a crucial commentary on the balance between judicial accountability and judicial
independence, defining the contours of permissible speech in relation to the judiciary in a
constitutional democracy like India.

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 BRIEF FACTS OF THE CASE

1. In June 2020, Advocate Prashant Bhushan, a senior lawyer and social activist, posted
two tweets that were highly critical of the functioning of the Indian judiciary and the
Chief Justices of India.

• First tweet (27June,2020)

Bhushan commented on the role of the Supreme Court in the past six years and
alleged that the Court had contributed to the “destruction of democracy” in India,
particularly under the leadership of the last four Chief Justices of India.
• Second Tweet (29 June 2020):
He posted a photograph of the then Chief Justice S.A. Bobde, sitting on a Harley
Davidson motorcycle during the nationwide COVID-19 lockdown, and remarked that
the CJI was enjoying rides without wearing a mask or helmet while the Supreme
Court remained in lockdown, denying citizens access to justice.

2. Following these tweets, Mahek Maheswari represented by Advocate Anuj Saxena filed
a petition against Prashant Bhushan and Twitter India on July 2.
3. Suo motu contempt of court proceeding was initiated by the Supreme Court of
India on 22 July 2020
4. During the hearings, Bhushan argued that his tweets represented fair criticism made in
good faith and were protected under Article 19(1)(a) of the Constitution (freedom of
speech and expression). However, the Court held that the statements went beyond fair
criticism and amounted to criminal contempt under Section 2(c)(i) of the Contempt of
Courts Act, 1971.
5. On 14 August 2020, the Supreme Court pronounced Bhushan guilty of criminal
contempt, holding that his tweets scandalised the Court and lowered its authority in the
eyes of the public.
6. At the sentencing stage on 31 August 2020, the Court imposed a token fine of ₹1,
stating that if Bhushan failed to pay it, he would face three months’ simple
imprisonment and be debarred from practicing law for three years. Bhushan paid
the fine but refused to offer an unconditional apology, asserting that doing so would
amount to contempt of his conscience.

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 ISSUES FRAMED

1. Whether Bhushan’s tweets constituted criminal contempt under Section 2(c)(i) of the
Contempt of Courts Act, 1971 (i.e., scandalizing or tending to scandalize the Court, or
lowering its authority)?

2. Whether his tweets are protected by Article 19(1)(a) as fair criticism, and whether the
statutory defence of truth (Section 13(b)) was available?

3. Whether the Court’s conversion of a private petition into Suo motu proceedings without
AG sanction was valid?

4. Whether the punishment meted out was appropriate in light of proportionality,

standing of the contemnor, freedom of expression, and constitutional values?

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 REFERRED STATUTORY PROVISIONS

• Article 19(1)(a): Right to freedom of speech and expression

• Article 19(2): Reasonable restrictions, including in relation to contempt of court

• Article 129: Supreme Court’s power to punish contempt

• Article 215: High Court’s power to punish contempt

Contempt of Courts Act, 1971:

• Section 2(c)(i): Definition of criminal contempt (publication which scandalizes or tends

to scandalize, lowers the authority of court)

• Section 13(b): Truth as a defence, provided bona fide and in public interest

• Section 15 & rules under Supreme Court Contempt Rules 1975:

sanction and procedural safeguards

In addition, precedent jurisprudence frames the doctrine of “fair criticism” and the requirement
that contempt must pose a real or substantial threat to the administration of justice.1

1
Baradakanta Mishra v. Registrar, Orissa High Court, AIR 1974 SC 710

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 ARGUMENTS OF THE PARTIES

Issue 1: Whether Prashant Bhushan’s tweets constitute “fair criticism” protected under
Article 19(1)(a), or “criminal contempt” under Section 2(c)(i) of the Contempt of Courts
Act, 1971?

Petitioner’s (Prashant Bhushan’s) Arguments

1. Freedom of Speech and Expression (Art. 19(1)(a)):
Bhushan argued that his tweets reflected a bona fide opinion on the functioning of the
judiciary, made in public interest, and thus were protected by Article 19(1)(a) of the
Constitution.
o Case Law: E.M.S. Namboodiripad v. T.N. Nambiar 2— the Supreme Court held
that fair criticism of the judiciary, if made in good faith and public interest, does
not amount to contempt.
2. Truth as a defence
He invoked Section 13(b) of the Contempt of Courts Act, 1971, which allows “truth”
as a valid defence if it is in the public interest and made bona fide. Bhushan argued
that his statements were based on verifiable facts reflecting declining judicial
accountability.
o Case Law: Indirect Tax Practitioners’ Association v. R.K. Jain (2010)3— held
that fair criticism based on truth can be permissible.
3. Democratic Accountability:
Bhushan contended that judges, as public functionaries, are subject to public scrutiny.
Criticizing their institutional conduct promotes transparency and accountability, not
contempt.

Case Law: Re: Arundhati Roy (2002)4— he distinguished this case, arguing that
unlike Roy’s comments attacking the Court itself, his tweets concerned institutional
performance, not personal attacks.

2
E.M.S. Namboodiripad v. T.N. Nambiar (1970 AIR 2015 SC)
3
Indirect Tax Practitioners’ Association v. R.K. Jain (2010) 8 SCC 281
4
Re: Arundhati Roy (2002) 3 SCC 34

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Respondent’s Arguments

1. Tweets Scandalise the Court:

The Attorney General and the Court held that Bhushan’s tweets went beyond fair
criticism and amounted to “scandalising the authority of the judiciary” under Section
2(c)(i) of the Contempt of Courts Act, 1971.
o Case Law: C.K. Daphtary v. O.P. Gupta (1971 AIR) 5— the Court held that
imputations against judges that bring the entire judiciary into disrepute
constitute criminal contempt.
2. No Factual Foundation:
The respondents argued that the defence of truth was not available since Bhushan’s
statements were generalised, unverified, and lacked evidentiary basis.
o Case Law: In Re: Arundhati Roy (2002)6— it was held that reckless and
unsubstantiated allegations against the judiciary cannot be shielded under
Article 19(1)(a).
3. Freedom of Speech Not Absolute:
The Court reiterated that while Article 19(1)(a) guarantees free speech, Article
19(2) permits “reasonable restrictions” in the interests of contempt of court.
o Case Law: P.N. Duda v. P. Shiv Shankar (1988)7— although fair criticism is
allowed, attributing motives or alleging corruption against judges crosses the
line into contempt.

Issue 2: Whether “truth” can be accepted as a complete defence under Section 13(b) of
the Contempt of Courts Act, 1971?

Petitioner’s Arguments

1. Bhushan relied on the 2006 amendment to Section 13(b), arguing that truth should act
as a shield if made in public interest.

5
C.K. Daphtary v. O.P. Gupta (1971 AIR 1132 SC)
6
In Re: Arundhati Roy (2002) 3 SCC 343
7
P.N. Duda v. P. Shiv Shankar (1988) 3 SCC 167

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 2. Case Law: Indirect Tax Practitioners’ Association v. R.K. Jain (2010) 8 SCC 2818 —
held that bona fide criticism of judicial conduct, based on truth and public interest, does
not amount to contempt.

Respondent’s Arguments

1. The Court rejected the defence of truth, observing that truth cannot be an absolute
defence unless established on firm evidence and shown to serve public interest.
o Case Law: Subramanian Swamy v. Arun Shourie (2014) 12 SCC 344 9— the
Court clarified that truth may be a defence but must be bona fide and in the
larger public interest.
o The Court held Bhushan’s tweets lacked verifiable factual basis and were
therefore not protected by Section 13(b).

Issue 3: Whether the Supreme Court’s conversion of a private petition into suo
motu contempt proceedings without Attorney General’s consent was valid?

Background: Under Section 15(1)(b) of the Contempt of Courts Act, 1971, a private
individual can move a petition for criminal contempt only with the written consent of the
Attorney General (AG) or Solicitor General (SG). However, in this case, no such consent was
obtained.Instead, the Supreme Court itself took Suo motu cognizance of the tweets based
on that petition and initiated contempt proceedings directly.

Petitioner’s Arguments

1. Violation of Section 15(1)(b):

The Court acted on a private complaint without AG’s consent, which made the
initiation procedurally defective.

Case law: Bal Thackrey v. Harish Pimpalkhute (2005)10 1 SCC 254 — AG’s
sanction is mandatory for private contempt petitions.

8
Indirect Tax Practitioners’ Association v. R.K. Jain (2010) 8 SCC 281
9
Subramanian Swamy v. Arun Shourie (2014) 12 SCC 344
10
Bal Thackrey v. Harish Pimpalkhute (2005)10 1 SCC 254

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 2. Lack of Judicial Independence:
Converting a private petition into suo motu contempt means the Court became
both complainant and judge, violating natural justice.

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Case law: In Re: S. Mulgaokar (1978 AIR 727 SC) — Justice Krishna Iyer
warned that contempt powers must be used rarely and with restraint.

Respondent’s Arguments

1. Constitutional Power of Court:

The Supreme Court has inherent power under Article 129 to punish for contempt,
independent of the Contempt of Courts Act.

Case law: Supreme Court Bar Association v. Union of India (1998)12 4 SCC
409 — contempt power is constitutional, not confined to statute.

Issue 4: Whether imposing punishment for contempt was justified or disproportionate?

Petitioner’s Arguments

Bhushan stated that punishing him for expressing an opinion would have a chilling effect on
free speech, particularly for lawyers and public intellectuals who act as watchdogs of the
judiciary.

o Case Law: Baradakanta Mishra v. Registrar of Orissa High Court 13—

dissenting opinion observed that criticism of judicial conduct, if fair, should not
be suppressed by contempt powers.

Respondent’s Arguments. The Court held that allowing such statements to go

unpunished would erode public confidence in the judiciary. Case Law: Delhi Judicial
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Service Assn. v. State of Gujarat (1991 AIR 2176 SC) — public faith in the judiciary is a
cornerstone of the rule of law; undermining it invites contempt action.

11
In Re: S. Mulgaokar (1978 AIR 11727 SC)
12
Supreme Court Bar Association v. Union of India (1998)12 4 SCC 409
13
Baradakanta Mishra v. Registrar of Orissa High Court (1974 AIR 710 SC)
14
Delhi Judicial Service Assn. v. State of Gujarat (1991 AIR 2176 SC)

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 JUDGMENT & RATIO DECIDENDI

Bench Composition & Decision

The judgment was delivered by a three-judge bench: Justices Arun Mishra, B.R. Gavai, and
Krishna Murari. On 14 August 2020, the Court unanimously found Bhushan guilty of
criminal contempt for both tweets.

Key Legal Reasoning

• On maintainability / procedural objection: The Court rejected Bhushan’s challenge
that the contempt petition could not be Suo motu without AG sanction under Section
15. It held that Section 15 is procedural and does not oust contempt power; it relied on
precedent including Re Vijay Kurle & Ors. to affirm that the Court can convert a petition
into Suo motu contempt proceedings.
• On the nature of tweets and standard for contempt: The Court held that the tweets
had the effect of undermining the dignity and authority of the Supreme Court in public
perception and thereby scandalized it. It emphasised that the measure is not only
intention, but also likely effect and contextual impact.15It distinguished between
permissible criticism (especially of judgments) and scurrilous, sweeping attacks on
institutional integrity. 16The Court noted that the tweets lacked detailed factual basis,
were sweeping, and thus non-justiciable in terms of fair critique.
• On defence of truth (Section 13(b)):The Court held that although truth is a statutory
defence, it must be shown to be bona fide and in public interest17. It concluded
Bhushan’s plea was not bona Fide, and that truth could not be invoked to mask
contempt.
• On sentencing / punishment: The Court, in its sentencing order (31 August 2020),
opted for a symbolic fine of ₹1, with default clause of 3 months simple imprisonment
and debarment for 3 years if not paid by 15 September 2020. In doing so, the Court
cited proportionality, standing and past record of Bhushan, and the importance of
giving the matter quietus rather than perpetuating a harassment

15
R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106
16
In Arundhati Roy, In Re, AIR 2002 SC 1375
17
Subramanian Swamy v. Union of India, AIR 2016 SC 2728

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 CRITICAL ANALYSIS

Weaknesses & Critiques

• Vague demarcation
Though the Court draws lines, the distinction between fair criticism and contempt
remains subjective and fact-sensitive. Without clearer tests or guidelines, wide judicial
discretion remains.

• Overemphasis on effect over intention

Critics argue that focusing heavily on “effect” risks chilling dissent, as many critiques
may be misperceived 18as lowering court authority even if legitimate.

• Truth defence undercut

The rejection of Bhushan’s truth plea (on the grounds of non-bona fides) was
controversial, especially as the Court did not deeply engage with all factual materials
he submitted. Some commentators say this short-changed journalistic and academic
critiques.

• Colonial legacy of “scandalizing the court”

Many modern jurisdictions (e.g., UK) have moved away from sanctioning
“scandalizing the court.” India’s continued reliance on this doctrine (as seen in this
judgment) is often criticized as being anachronistic.

• Chilling effect and self-censorship

The decision may discourage legal practitioners, journalists, and citizens from robust
critique of the judiciary out of fear of contempt proceedings.

18
Subramanian Swamy v. Union of India, AIR 2016 SC 2728

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 • Procedural issues glossed over
The Court’s dismissal of the procedural objection (AG sanction) was based on
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procedural function rather than in-depth analysis of constitutionality. Some argue
stronger adherence to separation of powers and legislative safeguards was warranted.

• Symbolic punishment — paradoxical outcome

Imposing a token fine while convicting sends mixed messages: the Court recognized
free speech concerns but still asserted strong institutional control. The fine symbolically
underlines the power, but the conviction remains a “taint” in public memory.

19
Re: Vijay Kurle & Ors., 2020 SCC OnLine SC 407

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 CONCLUSION

The Prashant Bhushan case stands as a landmark in balancing freedom of speech with
the dignity of the judiciary. The Supreme Court reaffirmed that while constructive and fair
criticism of judicial functioning is protected under Article 19(1)(a), expressions that tend to
scandalise or lower public confidence in the institution cross the boundary into criminal
contempt.

The Court also clarified its inherent constitutional power under Articles 129 and 215 to
initiate suo motu contempt proceedings, holding that such action does not require the Attorney
General’s sanction. However, it simultaneously emphasized that this extraordinary power must
be exercised with restraint, caution, and in rare cases.

By imposing only a token fine of ₹1, the Court sought to uphold judicial authority without
stifling democratic debate—reflecting an effort to preserve both judicial independence and
freedom of expression, the twin pillars of a constitutional democracy.

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 BIBLIOGRAPHY / REFERENCES

• In Re: Prashant Bhushan & Anr., AIR 2020 SC 4114

• Brahma Prakash Sharma v. State of U.P . , AIR 1954 SC 10

• E.M.S. Namboodiripad v. T.N. Nambiar, AIR 1970 SC 2015

• C.K. Daphtary v. O.P . Gupta, AIR 1971 SC 1132

• Baradakanta Mishra v. Registrar, Orissa High Court, AIR 1974 SC 710

• In Re S. Mulgaokar, AIR 1978 SC 727

• Arundhati Roy, In Re, AIR 2002 SC 1375

• Subramanian Swamy v. Union of India, AIR 2016 SC 2728

• R.K. Anand v. Registrar, Delhi High Court, 8 SCC 106 (2009)

• Contempt of Courts Act, 1971

• Supreme Court of India, Sentencing Order (31 August 2020)

• Comments & law journal articles: “Bottling the Criminal Contempt Law”

• (Tyagi et al.) revistaselectronicas.ujaen.es; NUJS Law Review editorial

notenujslawreview.org; commentary on Prashant Bhushan in media and legal blogs
Global Freedom of Expression+3Law and Other Things+3iPleaders+3

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