BHUSHAN (Suo Motu Contempt Petition (Crl.) No. 1 of 2020) AUGUST 31 & Anr. v. R.K. Jain (2010) 8 SCC 281; Subramanian Swamy v. Arun Shourie (2014) & Ors.

Judgment

510 SUPREME COURT REPORTS [2020] 8 S.C.R. 510 [2020] 8 S.C.R. A B C D E F G H IN RE: PRASHANT BHUSHAN AND ANR. (Suo Motu Contempt Petition (Crl.) No. 1 of 2020) AUGUST 31, 2020 [ARUN MISHRA, B. R. GAVAI AND KRISHNA MURARI, JJ.] Contempt of Court – Criminal Contempt of Court – In suo motu proceedings, Contemnor (an advocate) held guilty by Supreme Court – Court granted time to Contemnor to make unconditional apology, if he so desired – Contemnor filed supplementary statement reiterating that his statements in twitter were bonafide and pleaded truth as valid defence – Held: The twin requirement for considering the truth as valid defence, as per s. 13 of Contempt of Courts Act, 1971, is that such defence is in public interest and the request for invoking such defence is bona fide – In the facts of the case, the defence taken cannot be said to be either in public interest or bonafide, rather the Contemnor has indulged in making reckless allegations further aggravating the contempt – Even after conviction order, no remorse expressed nor apology submitted – A simple warning is not going to suffice in the present case – Duly balancing the factors as to the offender, offence and convicting judgment and the defence taken and in view of conduct of the contemnor, showing magnanimity, the Court, instead of imposing severe punishment, sentenced the contemnor with a nominal fine of Rs. 1/- – On default the Contemnor to undergo simple imprisonment for a period of 3 months and further be debarred from participating in Supreme Court for a period of 3 years. Judiciary – Though a fair criticism of judgment is permissible in law, a person cannot exceed the right u/Art.19(1)(a) to scandalize the institution – Constitution of India – Art.19(1)(a). Judiciary – If a scathing attack is made on the judges, it would become difficult for them to work fearlessly and with the objectivity of approach to the issues – The judgment can be criticized – However, motives to the Judges need not be attributed, as it brings administration of justice into disrepute – Administration of Justice. Advocates / Legal Profession – Lawyers, as a class, are looked by the public as intelligentsia. Constitution of India – Art.19(1)(a) – Free Speech is part of Art. 19(1)(a) – However, it cannot be said that while exercising power u/Art.129, the Court is interfering with the rights under Art.19(1)(a) – Supreme Court being a court of record can punish 510 IN RE: PRASHANT BHUSHAN AND ANR. 511 for contempt – Free Speech is essential to democracy, but it cannot denigrate one of the institutions of the democracy. A Constitution of India – Art.129 – While exercising powers u/ Art.129, the Court will have to strike a balance between the right u/ Art.19(1)(a) and restrictions under Art.19(2) – Constitution of India – Art.19(1)(a) and 19(2). Advocates / Legal Profession – Role and duty of – Held: Lawyers’ noble profession will lose all its significance and charm and dignity if the lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are part – Lawyers are supposed to be fearlessly independent and robust but at the same time respectful to the institution. Judiciary – Interference with judicial process – Release of statement to press in advance – Held: In a sub judice matter, releasing statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making and is clearly an attempt to coerce the decision of the Court by the influence of newspaper and media, which cannot be said to be conducive for fair administration of justice and would further tantamount to undue interference in the independent judicial making process which is the very foundation of institution of administration of justice – Administration of Justice. Contempt of Court – Criminal contempt – Apology – Held: The Court has to be satisfied as to the genuineness of the apology to make an order that contemnor has purged himself of the contempt. Administration of Justice – It is not expected of a person who is a part of the system of administration of justice and who owes a duty to the said system, to make tweets capable of shaking the confidence of general public and further making wild allegations in affidavit thereby further attempting to malign the institution. Rule of Law – Supremacy of – Strong arm of the law strikes a blow on him who challenges supremacy of the rule of law by fouling its source and stream – Court has to act only where attack is beyond a permissible limit. Disposing of the contempt proceedings, the Court HELD: 1.1 Section 13 of Contempt of Courts Act, 1971 would show that for considering the truth as valid defence there is a twin requirement. That such a defence is in public interest and that the request for invoking the said defence is bona fide. B C D E F G H 512 SUPREME COURT REPORTS [2020] 8 S.C.R. A B C D E F G H On the examination of the defence of the contemnor, the Court concurs with the submission made by the Attorney General that the defence cannot be said to be either in the public interest or a bona fide one. In this respect it will also be pertinent to note that when the counsel for the contemnor was heard in presence, he had fairly stated that he would not read further averments in the affidavit in reply of the contemnor because it will further malign the reputation of this Court. Thus, the view of the Attorney General that the defence should be taken off the record is endorsed. Though the tweet was of two lines, the affidavit in reply refers to series of allegations made by the contemnor with regard to the functioning of a large number of retired as well as sitting Judges including the Chief Justices as to their role on the judicial as well as on administrative side. If the averments are considered for taking truth as a defence, it would amount nothing else but the aggravation of the contempt. Therefore, the defence taken cannot be said to be either in the public interest or bona fide one. On the contrary, it is more derogatory to the reputation of this Court and would amount to further scandalizing and bringing administration of justice in disrepute, in which the common citizen of this country has faith and approaches this Court as a last resort for getting justice. As the averments are based on political consideration, and therefore cannot be considered to support the case of the contemnor of truth as a defence. The allegations made are scandalous and are capable of shaking the very edifice of the judicial administration and also shaking the faith of common man in the administration of justice. [Paras 20, 26-28, 32 and 33][534- G-H; 538-C-H; 539-D-E] Indirect Tax Practitioners’ Association v. R.K. Jain (2010) 8 SCC 281; Subramanian Swamy v. Arun Shourie (2014) 12 SCC 344 : [2014] 13 SCR 581 – referred to. 1.2 Though there is a Freedom of Speech, freedom is never absolute because the makers of the Constitution have imposed certain restrictions upon it. Particularly when such Freedom of Speech is sought to be abused and it has the effect of scandalising the institution as a whole and the persons who are part of the said institution and cannot defend themselves publicly, the same cannot be permitted in law. Though a fair criticism of judgment is permissible in law, a person cannot exceed the right under Article 19(1)(a) of the Constitution to scandalize the institution. [Para 34][539-F-G] IN RE: PRASHANT BHUSHAN AND ANR. 513

1.3 The norms of judicial conduct provide that Judges cannot express an opinion in the public. The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to press. It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media. Nor can they write anything about the correctness of the various wild allegations made, except when they are dealing with the matter. Retired Judges do have the prestige that they have earned by dint of hard work and dedication to this institution. They are also not supposed to be answering each and every allegation made and enter into public debate. Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with dignity. The Bar is supposed to be the spokesperson for the protection of the judicial system. They are an integral part of the system. The Bar and Bench are part of the same system i.e. the judicial system, and enjoy equal reputation. If a scathing attack is made on the judges, it would become difficult for them to work fearlessly and with the objectivity of approach to the issues. The judgment can be criticized. However, motives to the Judges need not be attributed, as it brings the administration of justice into disrepute. [Para 35][539-H; 540-A- D] C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and Others, (1995) 5 SCC 457 : [1995] 3 Suppl. SCR 319; Pravin C. Shah v. K.A. Mohd Ali and Another (2001) 8 SCC 650 : [2001] 3 Suppl. SCR 675 - relied on. Halsbury’s Laws of England, Fourth Edition, Volume 9, in para 27 – referred to.

1.4 The plea of the contemnor was that if defence of good faith, as provided in Section 3(22) of the General Clauses Act is taken into consideration, it will have to be held that the act done by the contemnor was done in good faith if it was done honestly, may be done negligently. The perusal of the comments can neither be said to be done honestly or in good faith. It cannot be said that a person who is the lawyer having 35 years standing, who has made malicious and scandalous comments in the tweets and amplified them by the averments made in the affidavit in reply which have the effect of denigrating the very institution to which A B C D E F G H 514 SUPREME COURT REPORTS [2020] 8 S.C.R. A he belongs, can be made honestly or in good faith. [Para 82][577- G-H; 578-A-B] Reynolds v. Times Newspapers Ltd. and Others (1999) 4 All ER 609 – referred to.

1.5 The contemnor has tried to justify the averments made on the basis of the Press Conference dated 12.01.2018 of the four senior-most Judges of this Court. Concept of equality before law, what is permissible not as to what is impermissible. It is settled that negative equality cannot be claimed as there is no concept of negative equality. Truth can be the defence to the Judges also, but they are bound by their judicial norms, ethics, and code of conduct. Similarly, the code of conduct for advocates is equally applicable to the lawyers, being part of the system. The Rules of Professional Ethics formed by the Bar Council, though couched under statutory power, are themselves not enough to prescribe or proscribe the nobility of profession in entirety. The nobility of profession encompasses, over and above, the Rules of Ethics. Lawyers, as a class, are looked by the public as intelligentsia. [Para 44][552-D-G] R. Muthukrishnan v. The Registrar General of The High Court of Judicature at Madras (2019) 16 SCC 407 : [2019] 1 SCR 589; Tehseen Poonawalla v. Union of India & Another (2018) 6 SCC 72 : [2018] 9 SCR 1 – relied on.

1.6 The defence taken in the affidavit cannot be said to be either bona fide or in the public interest. Both the tweets coupled with averments in the reply affidavit are capable of shaking the confidence of the public in the institution as a whole. The second tweet is capable of creating an impression that the entire Supreme Court in the last six years has played a vital role in the destruction of democracy. [Para 50][565-E-F] Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC 156 : [2017] 13 SCR 189; D. C. Saxena v. Chief Justice of India (1996) 5 SCC 216 : [1996] 3 Suppl. SCR 677 – relied on.

2.1 It cannot be disputed that Free Speech is part of Article 19(1)(a) of the Constitution. However, it cannot be said that while exercising power under Article 129 of the Constitution, the Court is interfering with the rights under Article 19(1)(a) of the B C D E F G H IN RE: PRASHANT BHUSHAN AND ANR. 515 Constitution. Supreme Court being a court of record can punish for contempt. Free Speech is essential to democracy can also not be disputed, but it cannot denigrate one of the institutions of the democracy. Democracy is based on free debate and open discussion, however, cannot go to the extent of the scurrilous attack and shaking the faith of the general public in such institution. Freedom of speech and expression includes the right to impart and receive information, which includes freedom to hold an opinion. No doubt, one is free to form an opinion and make fair criticism but if such an opinion is scandalous and malicious, the public expression of the same would also be at the risk of the contempt jurisdiction. No doubt that free speech, as envisaged under Article 19(1)(a) of the Constitution is a fundamental right. However, it cannot be forgotten that rights under Article 19(1) of the Constitution are subject to reasonable restrictions under Article 19(2) of the Constitution and rights of others cannot be infringed in the process. The same have to be balanced. While exercising the powers under Article 129 of the Constitution, the Court will have to strike a balance between the right under Article 19(1)(a) and the restrictions under Article 19(2) of the Constitution. Freedom of press is also an important aspect in a democracy. One cannot control the thinking process and words operating in the mind of one individual, but when it comes to expression, it has to be within the constitutional limits. Lawyers’ noble profession will lose all its significance and charm and dignity if the lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are part. The lawyers are supposed to be fearlessly independent and robust but at the same time respectful to the institution. [Para 81][576-G-H] Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248 : [1978] 2 SCR 621– followed. Secretary, Ministry of Information and Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Ors., (1995) 2 SCC 161 : [1995] 1 SCR 1036 – relied on.

2.2. The Court has weighed the pros and cons, rights, and limitations and thereafter rendered a considered decision regarding conviction. On consideration of proportionality there is no room to entertain the submission that applying the doctrine A B C D E F G H 516 SUPREME COURT REPORTS [2020] 8 S.C.R. of proportionality the balance will have to tilt in favour of the fundamental rights as against restrictions and that reasonableness means substantive and procedural reasonableness and imports proportionality. [Para 83][578-C; 578-F] State of Madras & Ors. v. V.G. Row (1952) SCR 597, Chintaman Rao & Ors. v. State of Madhya Pradesh [1950] SCR 759, Papnasam Labour Union v. Madura Coats Ltd. and Ors. (1995) 1 SCC 501 : [1994] 6 Suppl. SCR 369, State of Andhra Pradesh & Ors. v. McDowell and Co. & Ors. (1996) 3 SCC 709 : [1996] 3 SCR 721, Union of India (UOI) & Ors. v. G. Ganayutham (Dead) by Lrs. (1997) 7 SCC 463 : [1997] 3 Suppl. SCR 549; Teri Oat Estates (P) Ltd. v. U.T. Chandigarh & Ors. (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235; Om Kumar & Ors. v. Union of India (UOI) (2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693, Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1 : [2007] 12 SCR 991; Chairman, All India Railway Rec. Board & Ors. v. K. Shyam Kumar & Ors. (2010) 6 SCC 614 : [2010] 6 SCR 291 – referred to.

3. The lawyers and litigants going to press or media in a sub judice matter is another question that is at the fore in this matter. While hearing the matter, the contemnor talked to the press and media. The statement which was made by him pursuant to the order dated 20.08.2020, was also published well in advance in extenso, word to word, in the newspaper and media. In a sub judice matter, releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making and is clearly an attempt to coerce the decision of the Court by the influence of newspaper and media, which cannot be said to be conducive for the fair administration of justice and would further tantamount to undue interference in the independent judicial making process which is the very foundation of institution of administration of justice. If such kind of action is resorted to in a sub judice matter, that too by an advocate who is facing a criminal contempt, it virtually tantamount to using a forum or platform which is not supposed to be used ethically and legally. More so, in a serious case of criminal contempt and particularly after the conviction has been recorded by this Court, it indicates that the tolerance A B C D E F G H IN RE: PRASHANT BHUSHAN AND ANR. 517 of the Court is being tested for no good reasons by resorting to unscrupulous methods. [Para 66][572-C-G] A

4. So far as the inconsistency between the judgments of this Court in *E.M. Sankaran Namboodripad and **P.N. Duda cases is concerned, the legal position enunciated in both the judgments is one and the same. May be in one case by applying the same law the court found the statements made were contemptuous and in other case the Court found that the statement made was not contemptuous. [Para 71][573-G-H; 574- A]