A Full Bench consisting of Justice B.R Gawai, Justice Arun Mishra and Justice Krishna Murari heard the case. It held that his tweets undermined the dignity and authority of the administration of justice. A Judge’s functions may be divisible, but his integrity and authority are not divisible in the context of the administration of justice.
Brief Facts of the Case
A petition was filed, to start contempt proceeding against Advocate Prashant Bhushan. His tweets were allegedly involved to use hate speech against the Supreme Court and the entire judicial system.
The Supreme Court acknowledged the concern and sought a reply from him.
Arguments by the Contemnors
Shri Dushyant Dave appeared on behalf of Advocate Bhushan (Contemnor No. 1). He objected to the suo moto contempt proceeding being based on a petition filed. Contempt proceedings need the assent of Attorney General of India, which was not obtained.
He submitted that the order of the Court seeking reply does not mention Criminal Contempt under Contempt of Court’s Act, 1971 (“the Act”). The criticism is against the CJI as an individual and not as a CJI of the Supreme Court. And thus, the proceedings of the Court would not be justifiable.
Shri Sajan Poovayya appeared on behalf of Twitter (Contemnor No.2). It was submitted that Twitter has not authored or published the tweets in question. The same has been authored and published by Advocate Bhushan.
Twitter is an ‘intermediary’ within the meaning as provided under the Information Technology Act, 2000. Thus, it is not the author or originator of the tweets posted on its platform.
Also, after the order of the Apex Court, it has blocked and disabled access to the said tweets.
The issue for consideration is if the tweets by Advocate Bhushan are entitled to protection under Article 19(1) of the Constitution. Also, if the tweets can be taken as a fair criticism of the system, as made in good faith in the larger public interest or not.
The Bench explained the settled positions of Supreme Court’s powers as follows:
The Supreme Court’s source of power for the action of contempt is under Article 129. Powers of this Court to start contempt is not limited by Section 15 of the Act. It provides for the procedure of initiation of contempt proceedings. The Court can, thus, start suo moto proceedings based on information received by it. There is no need for taking consent of anybody, including the learned Attorney General. This is because the Court is exercising its inherent powers to issue a notice for contempt.
The Bench then referred to Constitution Bench decision in Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh 1953 SCR 1169. The object of contempt proceedings is not to afford protection to judges as individuals. Rather, it is intended to be a protection to the public whose interests would be very much affected. The conduct of any person should not lower the authority of the court. The sense of confidence which people have in the administration of justice cannot be it weakened.
The Court also referred to Baradakanta Mishra vs The Registrar Of Orissa High Court & Another (1974) 1 SCC 374. If the attack on the Judge functioning as a Judge affects the administration of justice, it becomes public mischief. Such an act is punishable for contempt. 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.
Tweet on Chief Justice of India riding a bike
The Bench stated that the said tweet gave an impression to a layman, that the CJI is enjoying his ride on a motorbike worth Rs.50 lakh belonging to a BJP leader. And now, he has kept the Supreme Court in lockdown mode denying citizens their fundamental right to access justice.
It noted that the date on which the CJI is alleged to have taken a ride on a motorbike is during the period when the Supreme Court was on a summer vacation. Besides, various benches of the Court have been sitting and discharging duties via video conferencing.
The Bench affirmed, “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. In the said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India.”
The Bench remarked that Advocate Bhushan has made such a scandalous and malicious statement even after availing the right of access to justice during the said period. This is not only as a lawyer but also as a party to a suit.
Second Tweet on the role of Chief Justices in the destruction of democracy
The Court specified that it emergency era is considered to be the blackest era in the history of democracy. The impression made of his tweet is that despite a formal emergency the democracy of the country has been destroyed. And, that the Chief Justices have an integral role in the same. The criticism is not against a particular judge but the institution of the Supreme Court and the institution of the Chief Justice of India.
The two circumstances to be considered for a criticism made in good faith is the extent of publication and the person expressing the statement. A tweet has a wide reach. Also, Advocate Bhushan is a part of the institution of administration of justice. Instead of protecting the majesty of law, his act tends to bring disrepute to it.
The tweet has the effect of destabilizing the very foundation of the important pillar of Indian democracy.
His act aims at damaging the confidence of people in the judicial system and to demoralize the Judges of the highest court. It is considered as a “calculated attack” on the very foundation of the institution of the judiciary.
The Bench asserted that the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice.
The malicious attacks by Advocate Bhushan are not only against few judges but the entire Supreme Court in its functioning of the last six years. Such an attack which tends to create disaffection and disrespect for the authority of this Court cannot be ignored.
The Bench held Advocate Prashant Bhushan to be guilty of Criminal Contempt of Court. Also, it discharged liability from Twitter as being only an intermediary. It thereby does not have any control over what the users post on the platform.
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