- Apprentice Lawyer
- Legal Jobs
"...magnanimity cannot be stretched to such an extent, which may amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very foundation of the institution of the judiciary", the Court held.
It is interesting to note that the 108-page judgment delivered by the Bench of Justices Arun Mishra, BR Gavai and Krishna Murari does not specify any one author.
The Bench justifies its decision to view Bhushan's tweets as scandalising the Court and lowering its authority by taking recourse a plethora of Supreme Court judgments on contempt law.
No error in listing suo motu matter on judicial side, says Court
The Court starts off its judgment by addressing the objection raised by Bhushan over the listing of the case on the judicial side without the consent of the Attorney General after a complaint over Bhushan's tweet was registered first by Advocate Mahek Maheshwari.
Relying on the Apex Court's recent ruling in Re: Vijay Kurle & Ors, the Bench held that there was no error in registering a suo motu case based on the information received by it.
The only requirement is that the procedure followed is just, fair and in accordance with the principles of natural justice. The Court added that this was ensured in the present case.
On the scope of contempt jurisdiction
The Court went on to cite various judgments that expounded on when the Court can exercise its contempt jurisdiction. In view of these judgments, the Bench reiterated the following observations, among others:
When a statement is made against a judge as an individual, contempt jurisdiction would not be available. The object of contempt proceedings is not to afford protection to judges personally from imputations to which they may be exposed as individuals However, when the statement is made against a judge as a judge and which has an adverse effect in the administration of justice, the Court would certainly be entitled to invoke the contempt jurisdiction.
If a citizen exceeds his free speech rights in a bona fide manner, the Court would be slow in exercising contempt jurisdiction and show magnanimity. However, when such a statement is calculated in order to malign the image of judiciary, the Court would not remain a silent spectator. When the authority of this Court is itself under attack, the Court would not be a onlooker.
If constructive criticism is made in order to enable systemic correction in the system, the Court would not invoke the contempt jurisdiction. However, the Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the judges and where the attack is calculated to obstruct or destroy the judicial process.
it is not necessary that there should in fact be an actual interference with the course of administration of justice but it is enough if the offending publication is likely or if it tends in any way to interfere with the proper administration of law.
No act can be permitted, which may have the tendency to shake the public confidence in the fairness and impartiality of the administration of justice.
The judiciary cannot be immune from criticism. However, when that criticism is based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it cannot be ignored. An action for contempt of court should not be frequently or lightly taken. But, at the same time, the Court should not abstain from using this weapon even when its use is needed to correct standards of behaviour in a grossly and repeatedly erring quarter.
In re tweet on CJI SA Bobde
The first tweet Bhushan was hauled up for pertained to his commentary on a picture of Chief Justice of India SA Bobde on a high-end motorcycle. Bhushan had stated:
"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!"
The Court took critical note that,
"The impression that the said tweet intends to give is that the CJI as the head of the Indian judiciary has kept the Supreme Court in lockdown mode, thereby denying citizens their fundamental right to access justice."
The three-judge Bench found this to be patently false on the following grounds:
On the relevant date, the Supreme Court was on summer vacation. Even during this period, Benches of the Supreme Court were regularly functioning.
Physical court hearings were suspended in view of the COVID-19 pandemic last March, but virtual hearings were being conducted. The total number of sittings that the various benches had from March 23 till August 4 is 879. During this period, the Court has heard 1,2748 matters. Further the Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India.
Prashant Bhushan himself had appeared before the Court during this time, both as an advocate and as litigant.
Therefore, the statement that the Supreme Court is in lockdown is factually incorrect and patently false, even to the knowledge of Bhushan. The Court took critical note that he has made a scandalous and malicious statement after having himself availed the right of an access to justice during the said period, not only as a lawyer but also as a litigant.
The Bench proceeded to opine,
In re tweet on last four CJIs and the Supreme Court
In his second controversial tweet, Bhushan had expressed his opinion on the role of last four CJIs amid the state of affairs in the country, stating,
"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 Court said that it is not commenting on the first part of the tweet concerning the alleged destruction of Indian democracy over the last six years as "we do not want to convert this proceeding into a platform for political debate."
However, the Court has taken exception to the latter part of the tweet, which the Bench observed tends to "give an impression, that the Supreme Court has a particular role in the destruction of democracy in the last six years and the last four CJIs had a more particular role in the same."
To decide on whether Bhushan had expressed this opinion in good faith, and if he should be proceeded against for his tweet, the Court also considered the following factors:
The extent of publication - The Bench noted that "the publication by tweet reaches millions of people."
The fact that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court.
In this backdrop, the Court said,
"The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest."
It was further held,
The Bench added,
"If such an attack is not dealt with, with requisite degree of firmness, it may affect the national honour and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them."
The Court, therefore, found Bhushan guilty of criminal contempt. However, it discharged Twitter from the contempt case, accepting its explanation that the platform is only an intermediary that "does not have any control on what the users post on the platform."
"It has also showed bona fides immediately after the cognizance was taken by this Court as it has suspended both the tweets. We, therefore, discharge the notice issued to the alleged contemnor No.2 (Twitter)", the Court said.
Read the Judgment: