Case name: In 

Re: Prashant Bhushan & Anr.

Citation: MANU/SC/0587/2020

Facts
Advocate Prashant Bhushan, on June 29, 2020 tweeted on his Twitter
account about the Chief Justice of India, SA Bobde along with a picture of
him sitting on a bike. He tweeted “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.”
Just two days before this tweet i.e on June 27, 2020 he had tweeted about
the former CJIs. He said that “When historians in the 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.”
Mahek Maheswari represented by
Advocate Anuj Saxena filed a petition against Prashant Bhushan and Twitter
India on July 2. She requested the court to initiate contempt of court
proceedings against Bhushan for his tweets, alleging that it ‘inspired a feeling
of no-confidence’ in the independence of the judiciary and also amounted to
‘scandalizing the court.’

The Supreme Court took suo moto cognizance and initiated contempt
proceedings.

During the proceedings, Prashant Bhushan clarified that the initial tweet was
made  to precise his anguish on the incongruity between CJI’s reckless
attitude in riding a motorcycle without wearing a mask while at an equivalent
time restraining the Supreme Court from functioning physically and hearing
cases during the lockdown period due to Covid-19 pandemic. He also
submitted that the proceedings of contempt was to stifle free speech and
violative of Article 19(1)(a) of the Constitution of India. For his second tweet,
he argued that it had been a bonafide expression of his opinion of the Court’s
and past four CJI’s role in impairing democratic ideals within the last six
years which cannot constitute contempt as a protected freedom under the
Constitution of India.

As per the well-settled conventions of the Supreme Court of India, the CJI is
considered as a ‘Master of the Roaster’, who has the privilege to assign cases
to the judges within the past, the exercise of this authority has increasingly
been called into question. Alongside its use by the CJI’s to permit the spread
of authoritarianism and stifling of dissent within the country. Prashant
Bhushan claimed that raising such questions that concern the way in which
CJIs conduct themselves in individual capacities does not amount to
scandalising the Court itself. Therefore, the tweets cannot be said to interfere
with the course of justice or the right administration of law by the Court. ‘To
criticize the judge fairly, albeit fiercely is no crime but a necessary right,
twice blessed in a democracy’.

Issue Before The Court

provisions of law involved

2. Criminal Contempt[3]: the publication (whether by words, spoken or written, or by signs, or

 scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
 prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding;
or
 interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner;

3.Article 129: 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.

4.Article 142(2)[5]: The Supreme Court shall, as respects the whole of the territory of India, have
all and every power to make any order for the purpose of securing the attendance of any person,
the discovery or production of any documents, or the investigation or punishment of any
contempt of itself.

Arguments
On behalf of Contemnor 1, Mr. Prashant Bhushan, learned senior counsel Shri Dave has submitted
that since the proceedings were initiated after Mr. Maheshwari filed a petition, the same cannot be
a Suo moto contempt petition. He has argued that:
 the tweets were not scandalising the image of the apex court, rather, it is a right to freely
and fairly discuss the state of affairs of an institution and build a public opinion to reform the
institution.
 CJI is not the Supreme court and the Court cannot be equated with the Chief Justice or even
a succession of 4 CJI's.
 As stated in Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh[6], if the
attack is on the judge and does not interfere with the due course of justice and proper
administration, then the court cannot proceed with the case of contempt.
 In Baradakanta Mishra vs The Registrar of Orissa High Court & another[7], it was observed
that if it is vilification of judge as an individual and not judge as judge, then he shall seek
remedies privately and the court cannot punish for contempt.

Further, the learned counsel submitted that in the present case, the vilification, if any, is against
the CJI as an Individual. The first tweet was an expression of agony by Mr. Bhushan because of
the non-functioning of the physical court from past several months, which in turn is denying
justice to the litigants. The second tweet, however, is an expression of his opinion on the
action/inaction of the last 4 CJI's and how the same has contributed to the destruction of the
democracy in India. He submits that the allegations are on the present CJI and part three CJI's as
Individuals in their individual capacity.

Contemnor 2: Twitter Inc argued that it is not the originator of the tweets posted on its platform
rather, is a mere intermediary. It does not have any editorial control on the tweets, rather, it
acts as a display board for the people. Under Section 79 of the Information Technology act,
2000, Twitter Inc has a safe harbour as an intermediary for any objectionable posts on its
platform posted by its users

Judgment

The Court stated at its beginning that there is a clear connection between remarks that affect judges'
ability to administer justice improperly and their strict performance of their duties. It declared that
such hints (as in the current case) impliedly diminished the Court's dignity and amounted to
undermining the public's confidence in judges' integrity by referring to the past. By doing so, the
Court rejected Prashant Bhushan's argument that remarks about judges' individual conduct had no
bearing on the administration of justice, thereby compelled criticism of judges to also be directed at
the Court.
On the other hand, the Court attempted to draw a significant distinction. It was noted that while
criticizing a judge personally does not constitute contempt, disparaging a judge as a whole does; in
such cases, judges are left to seek private remedies. It primarily based its decision-making in
contempt cases on the following six criteria outlined by Justice V.R. Krishnalyer in Re: S. Mulgaokaw
(1978) 3 SCC 339:

1. the prudent use of the Court's contempt authority,

2. striking a balance between the right to free speech and the need for a fearless legal process,

3. the separation of the personal protection of libeled judges from public trust in the avoidance of
obstructing justice;

4.discretionary exercise of authority.

5. not being hypersensitive even when criticisms exceed limits, and

6. declaring contempt in cases of malicious, scurrilous, intimidatory, or threatening conduct beyond

The Court then went into a study of the tweets, using Justice V.R. lyer's multifold tests as a guide. It
split them into multiple pieces, noticing that the initial section of the first tweet (C] rides a 50 lakh
motorcycle belonging to a BJP leader without a mask or helmet at Raj Bhavan, Nagpur without a
mask or helmet') was a personal attack on the C]l as an individual. The second half of the initial
tweet, however, was an 'undisputed' attack on CJI in his function as administrative head of the
judiciary (at a time when he puts the SC in lockdown mode, depriving citizens their fundamental
rights to access justice').

It's worth noting that the Court found various problems in the initial tweet's factual correctness.
Despite being physically unable to function, the Court was able to carry out its duties via video
conferencing facilities during the period of the disputed tweets. According to the Court, a "patently
false" and "wild charge" about the CJI has the potential to shatter public trust in the judiciary as well
as undermine the authority and administration of justice in that setting. As a result, the Court
dismissed Prashant Bhushan's claim of genuine criticism based on his distress about the courts'
physical non-functioning.

The Court issued three observations in response to the second tweet. First, Prashant Bhushan's
statement that the Supreme Court had played a significant role in allowing the breakdown of
democracy, as well as the role of the previous four CJls in sustaining it, was a direct attack on the
Supreme Court and the CJl. Second, the Court determined that Prashant Bhushan acted
irresponsibly, and that the tweets were not qualified for good faith protection, based on the vast
reach of the tweet and the character of the contemnor (who is a lawyer).

An ordinary applicant might have been discouraged by the tweets, and when taken as an entire
entity runs the risk of losing confidence in the Supreme Court and the C]I. The Court came to the
conclusion that if it did not defend itself against malicious allegations involving those made in this
case, it would make other judges vulnerable to similar assaults. Preventing malicious attacks
required a determined approach because it involved issues of national reputation and honour in the
international community. The Supreme Court determined that Prashant Bhushan had committed
contempt of court.

The Court discharged Twitter from its role as an intermediary in the contempt proceedings and
issued notice of its decision to suspend tweets in July after receiving notice from the Court. Many
activists claim that the company has set a risky precedent that could apply to future defamation
cases. In a statement, Twitter confirmed its commitment to upholding free speech in India and
throughout the world.
Following a ruling by the Court on August 14, 2020, in which the Court found Prashant Bhushan
guilty of contempt for claiming that a copy of the complaint on the basis of which the suo mot notice
was issued was not served on him, Prashant Bhushan asked the Court to have the proceedings
thrown out for procedural reasons. He also contested the ruling on the grounds of vagueness (due to
a conflict with other court rulings on the subject), free speech, truth (as a defence), the principle of
proportionality (tipping the scales in favour of rights over restrictions), and an effort to force him to
apologise.
The Supreme Court made decisions on some of the aforementioned issues in its sentencing order on
August 31, 2020, in light of the intense public discussion that followed its ruling. It was decided that
criticising the Supreme Court was against the constitution. While reasonable restrictions are allowed
under Article 19(2) due to public interest concerns, fair criticism is still a legal defence. The Court
noted, among other things, that judicial criticism amounted to contempt and was not protected by
Article 19(1)(a) of the Constitution. One could not prevail if there was a conflict between preserving
judicial independence and preserving freedom of expression.

"While it was not possible to control the thinking process and words functioning in one individual's
mind, when it came to expression, it had to be within the constitutional bounds, the Court
concluded. Without a doubt, legitimate criticism of the system is desirable while exercising one's
right to free expression, and judges cannot be overly sensitive, even when distortions and criticism
go too far. The same cannot, however, be expanded to allow nasty and scandalous statements. The
contemnor's other arguments were similarly dismissed for similar reasons."
As a result, instead of a harsh punishment, Prashant Bhushan was convicted to a modest fine of INR
1.

ANALYSIS
The Court observed that the trust, faith and confidence of the citizens of the country in the
judicial system is sin qua non for existence of rule of law. An attempt to shaken the very
foundation of constitutional democracy has to be held with iron hand. The tweet has the
effect of destabilizing the very foundation of this important pillar of the Indian democracy.
There is no manner of doubt that the tweet tends to shake the public confidence in the
institution of judiciary. We are concerned with the damage that is sought to be done to the
institution of administration of justice. In our considered view, the said tweet undermines the
dignity and authority of the institution of the Supreme Court of India and the CJI and directly
affronts the majesty of law.
An attack on the Supreme Court does not only have the effect of tending an ordinary litigant
of losing the confidence in the Supreme Court but also may tend to lose the confidence in the
mind of other judges in the country in its highest court. A possibility of the other judges
getting an impression that they may not stand protected from malicious attacks, when the
Supreme Court has failed to protect itself from malicious insinuations, cannot be ruled out.
As such, in order to protect the larger public interest, such attempts of attack on the highest
judiciary of the country should be dealt with firmly. No doubt, that the Court is required to be
magnanimous, when criticism is made of the judges or of the institution of administration of
justice. However, such magnanimity cannot be stretched to such an extent, which may
amount to weakness in dealing with a malicious, scurrilous, calculated attack on the very
foundation of the institution of the judiciary and thereby damaging the very foundation of the
democracy.
The summary jurisdiction of this Court is required to be exercised not to vindicate the dignity
and honour of the individual judge, who is personally attacked or scandalized, but to uphold
the majesty of the law and of the administration of justice. The foundation of the judiciary is
the trust and the confidence of the people in its ability to deliver fearless and impartial justice.
When the foundation itself is sought to be shaken by acts which tend to create disaffection
and disrespect for the authority of the court by creating distrust in its working, the edifice of
the judicial system gets eroded. The scurrilous/malicious attacks by the alleged contemnor
No.1 are not only against one or two judges but the entire Supreme Court in its functioning of
the last six years. The tweets which are based on the distorted facts, in our considered view,
amount to committing of ‘criminal contempt’.

Analysis
The topic to be analysed is whether the tweet published by Mr. Prashant Bhushan a healthy criticism
towards the Indian judiciary or which has dashed the public confidence in the institution of the
supreme court. While we are looking through the facts of the tweet by advocate Mr. Prashant
Bhushan, criticized CJI as individual, as it states that CJI rides a 50 lakh motorcycle belonging to a bjp
leader at raj bhawan, Nagpur without any mask or helmet. In second part of the tweet he says that
supreme court is under lockdown mode denying citizen their fundamental right to access justice. In
this criticism the adv Mr. Prashant Bhushan implies that CJI has neglected the citizen’s fundamental
right to access to justice and CJI is enjoying his expensive ride belonging to a bjp leader without any
precautionary measure. In this matter, court has stated that facts by adv. Mr. Prashant Bhushan is
incorrect and only the physical functioning of court is effected due to pandemic and the court is
functioning virtually. Therefore, court said that the statement is said to be false, malicious,
scandalous and can shake the confidence of public towards the Indian judiciary.