PRASHANT BHUSHAN – Cotempt Proceedings

PRASHANT BHUSHAN=

The contemnor not only gave wide publicity to the second statement submitted before this Court on 24.08.2020 prior to the same being tendered to the Court, but also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of this Court.

If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country.

However, by showing magnanimity, instead of imposing any severe puishment, we are sentencing the contemnor with a nominal fine of Re.1/­ (Rupee one).,

therefore, sentence the contemnor with a fine or Re.1/­ (Rupee one) to be deposited with the Registry of this Court by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.

REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
IN RE:
PRASHANT BHUSHAN AND ANR.
J U D G M E N T

  1. Heard Shri K.K. Venugopal, learned Attorney General for India, Dr.
    Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior
    counsel, and the contemnor­Shri Prashant Bhushan.
  2. After having adjudged Shri Prashant Bhushan, Advocate, guilty of
    contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and Shri
    Dushyant Dave, learned senior counsel appearing for the contemnor­Shri
    Prashant Bhushan raised the following arguments: ­
    (i) That the copy of the petition on the basis of which the suo motu
    cognizance was taken by this Court with respect to first tweet, filed by
    Shri Mahek Maheshwari, was not furnished, in spite of the application
    having been filed by the contemnor. Thus, it could not be ascertained
    whether the complaint was mala fide or even personally or politically
    motivated.
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    (ii) The factors relevant for sentencing are the offender, the offence, the
    convicting judgment, statutory or other defences relating to a substantial
    interference with justice, truth, bona fides, and public interest in
    disclosure.
    (iii) The contemnor is a lawyer of 35 years of standing, who has
    pursued public interest litigation successfully at some personal and
    professional cost. He got appreciation from the Court. He is a founding
    member of Campaign for Judicial Accountability, which includes several
    senior counsel of repute. He has brought certain corruption cases and
    causes to the Court such as V. Ramaswamy case, Coal Mining case, Goa
    Mining case, Orissa Mining case, an issue relating to the appointment of
    CVC, CBI Director’s case, Lok Pal case etc. In the public interest, he has
    filed several petitions like Narmada case, Bofors case, Police Reform case,
    Passive Euthanasia case, HPCL Privatization case, Street Vendors case,
    Rickshaw Pullers case, Singur Land Acquisition case, Draught
    Management, Gram Nyayalaya, and Electoral Bond cases.
    (iv) The nature of offences is another ingredient to be taken into
    consideration while imposing sentence; (i) Offence must be clear without
    ambiguity. (ii) The potential offender must know/understand whether
    he/she is guilty of the offence. The offence of scandalizing the Court is
    notoriously vague. It has not been defined by the Statute. It is called
    2
    “vague and wandering” jurisdiction. Reliance has been placed on
    Shreya Singhal v. Union of India, 2015 (5) SCC 1. Such an offence
    has to be handled with care and used sparingly, as observed in
    Baradakanta Mishra v. Registrar of Orissa High Court & another,
    (1974) 1 SCC 374. There is inconsistency in various decisions relating to
    the conviction and sentence due to vagueness.
    (v) The very jurisdiction of contempt is scandalizing and is vague and
    colonial. Several decisions have been relied upon where the Court has
    not even initiated contempt in such matters. In some of the countries,
    the contempt law being an archaic law has already been done away with.
    There cannot be any compromise with the Right to Free Speech and
    Opinions.
    (vi) In the convicting judgment, reliance was placed on the decisions in
    P.N. Duda v. P. Shiv Shanker & Others, (1988) 3 SCC 167), Brahma
    Prakash Sharma and Others v. The State of Uttar Pradesh, 1953 SCR
    1169, and In Re: Hira Lal Dixit and two others, (1955) 1 SCR 677.
    The decision in E.M. Sankaran Namboodripad v. T. Narayanan
    Nambiar, (1970) 2 SCC 325, has been superseded by P.N. Duda (supra).
    In so far as the decision in E.M. Sankaran Namboodripad (supra) is
    concerned, the same would not be relevant inasmuch as the same stands
    3
    overruled by P.N. Duda (supra). Similarly, reliance on the judgment in
    C. K. Daphtary & Ors. v. O. P. Gupta & Ors., (1971) 1 SCC 626, is also
    not relevant inasmuch as the said judgment is delivered prior to
    amendment of Contempt of Courts Act, 1971 (for short ‘the Act’), vide
    which Section 13(b) was brought on statute book, so as to allow truth as
    a defence. The Court has to exercise jurisdiction with great care and
    caution and only in cases that are clear beyond reasonable doubt. In
    Re: S. Mulgaokar, (1978) 3 SCC 339, various guidelines have been laid
    down by this Court. They are, free market of ideas, fair criticism in good
    faith when it is in the public interest, the surrounding circumstances,
    the person who is making the comments, his knowledge in the field
    regarding which the comments are made and the intended purpose.
    After considering all these guidelines, an advocate should be punished by
    exercising extreme caution only in the case where the tendency is to
    create disaffection and disrepute to erode the judicial system. Though
    the convicting judgment, on the one hand cites various decision on
    balance, on the contrary holds the contemnor guilty for the fair criticism
    made by him.
    (vii) There is no conflict between the constitutional jurisdiction under
    Articles 129, 215 of the Constitution of India, and the Contempt of
    Courts Act. In Pallav Sheth v. Custodian & Ors., (2001) 7 SCC 549, it
    4
    was laid down that the powers of punishment for contempt under Article
    129 of the Constitution of India have to be exercised in consonance with
    the Contempt of Courts Act, 1971.
    (viii) Besides that, provisions in Sections 8 and 9 and newly amended
    Section 13(a) of the Act requires that the Court cannot impose a sentence
    unless it is satisfied that contempt is of such a nature that substantially
    interferes or tends substantially to interfere with the due course of
    justice. Thus, special responsibility is cast on the Court to examine the
    extent of interference. The provisions of newly amended Section 13(a)
    amply make it clear that the Court is required to assess the situation
    itself. However, in the convicting judgment no such inquiry has taken
    place and as such an order of sentence cannot be passed. Truth should
    ordinarily be allowed as a defence unless the Court finds, that it is only a
    camouflage to escape the consequences of the deliberate attempt of
    scandalizing the Court. Section 13 of the Act enables the Court to permit
    justification by truth as a valid defence in any contempt proceedings if it
    satisfied that such a defence is in the public interest and the request for
    invoking the defence is bona fide. Reliance is placed on Subramanian
    Swamy v. Arun Shourie, (2014) 12 SCC 344. In so far as the first
    tweet is concerned, the tweet is an expression of opinion by Shri
    Prashant Bhushan that due to the Courts not functioning physically the
    5
    litigants are deprived of real access to justice. It is submitted that this
    opinion also finds support from the observations made by this court In
    Re: Financial aid for members of Bar affected by a pandemic (In Suo
    Moto Writ Petition No.8/2020) that due to the suspension of physical
    functioning of the Courts, the lawyers have been deprived of sources of
    earning their livelihood.
    (ix) With respect to the second tweet, this is again an expression of
    opinion by Shri Prashant Bhushan. It was submitted that this opinion
    has been shared by many others including the retired judges of this
    Court. Reference was also made to the Press Conference held on
    12.01.2018 by the Sitting Judges of this Court. The role of the Supreme
    Court and the last four Chief Justices is detailed in the reply affidavit.
    The reply is backed up by details and materials and how and why Shri
    Bhushan came to form opinion reflected in the tweet. The defence of
    truth was not examined at all in the convicting judgment and the same
    needs to be examined at the stage of sentencing in compliance with
    Section 13(b) of the Act.
    (x) Article 19(1)(a) guarantees Freedom of Speech and Expression.
    Provisions in Articles 129 and 142(2) of the Constitution of India, cannot
    override Article 19(1)(a) and 19(2) of the Constitution of India. Free
    Speech is a highly valued right and is essential for democracy. In a
    6
    democracy, there is a right to dissent. There is the freedom to build an
    opinion. Publication in good faith is suggested for the Press, as defined
    in General Clauses Act in Section 3(22), it is a valid defence, if done
    honestly, whether it is done negligently or not.
    (xi) It was submitted that while applying the Principle of Proportionality
    the balance will have to tilt in favour of the rights as against restrictions,
    inasmuch as the rights are fundamental in nature. The opinions of the
    contemnor were bona fide and devoid of malice. Thus, the decision with
    respect to the conviction is required to be recalled, and in such an event,
    no sentence can be imposed. It was submitted that the judgments are
    open to scrutiny and this Court should welcome outspoken comments
    including criticism by ordinary citizen.
    (xii) Debarring an advocate from appearing is to be done only in rare
    cases, as a last resort, only after giving requisite notice for the same, as
    held in R.K. Anand v. Registrar, Delhi High Court, (2009) 8 SCC 106.
    (xiii) There should not be an attempt to coerce the contemnor into
    making an apology on the basis that nothing else would be acceptable.
  3. At the beginning of the proceedings itself, we had called upon Shri
    K.K. Venugopal, learned Attorney General for India, to address us. In the
    morning session, we have heard him at great length. Learned Attorney
    7
    General stated that this Court, by showing magnanimity, should not
    impose any sentence on Shri Prashant Bhushan. He submitted that the
    tweets made by Shri Prashant Bhushan could be considered as bona fide
    criticism in order to seek improvement in the functioning of the
    institution. He further stated, that taking into consideration the causes
    represented by Shri Prashant Bhushan in various public interest
    litigation and the service rendered by him to different classes of society
    by bringing their issues to the notice of this Court, the Court should
    consider not imposing any sentence on him.
  4. When controverted with various statements made by the contemnor
    in the affidavit in reply, the learned Attorney General fairly conceded that
    such statements were not warranted.
  5. He suggested that such statements be either withdrawn by the
    contemnor or should be taken off from the pleadings. When further
    confronted with the Contempt Petition filed by the learned Attorney
    General in one of the proceedings against the very same contemnor, the
    learned Attorney General submitted that since Shri Prashant Bhushan,
    on a piece of paper, had expressed his regret, he expressed desire not to
    pursue the said contempt proceedings. The learned Attorney General
    attempted to read out the statement made by Shri Prashant Bhushan in
    the contempt proceedings, which was initiated in the year 2009, wherein
    8
    Shri Prashant Bhushan had expressed his regret. However, when it was
    pointed out to the learned Attorney General that the said statement was
    not pertaining to the present proceedings but earlier proceedings, the
    learned Attorney General stated that when Shri Prashant Bhushan had
    expressed regret in the other proceedings, there is no reason as to why
    he should not express regret in the present proceedings also. He stated
    that the same could be considered as regret in the present proceedings
    also. We had also pointed out to the learned Attorney General that the
    contemnor was pressing the statement made in the affidavit and was
    raising a plea of truth as a defence. In such circumstances, whether it
    would be appropriate on the part of this Court to take off the said
    statements from the pleadings. The learned Attorney General, faced with
    this situation, stated that unless the contemnor withdraws the said
    statements, in view of the provisions of Section 13(b) of the Act, the
    statements cannot be taken off.
  6. After hearing the learned Attorney General, we heard Dr. Rajeev
    Dhavan, learned senior counsel appearing for the contemnor, at length.
    The submissions made on behalf of Dr. Dhavan, learned senior counsel,
    have already been stated hereinabove.
  7. After Dr. Dhavan, learned senior counsel completed his arguments,
    we again called upon learned Attorney General, to address us by taking
    9
    into consideration the submissions made on behalf of contemnor by Dr.
    Dhavan, learned senior counsel. Learned Attorney General was fair
    enough to state that insistence on the part of the contemnor to press into
    service various objectionable statements made in the pleading was not
    warranted and also not justifiable. He fairly stated that in the interest of
    the administration of justice, the contemnor ought not to have made
    such statements. He further stated that such statements, which were
    also concerning various sitting and retired judges of this Court, including
    the past and present Chief Justices, were totally unjustifiable,
    specifically so when the retired or sitting judges were not in a position to
    defend themselves. He further submitted that no verdict could be passed
    without hearing such Judges, and as such, the process would be
    endless. He submitted that such a defence cannot be looked into. From
    the tenor of the submission made by the learned Attorney General, it was
    apparent that the learned Attorney General was at pains due to the
    statements made by the contemnor in the affidavit.
  8. However, learned Attorney General appealed to the magnanimity of
    this Court and submitted that instead of sentencing the contemnor with
    any sentence this Court should magnanimously warn him, to be careful
    while making any statement with regard to the judges or the institution
    of administration of justice and he should be further warned not to
    10
    repeat any such act hereafter. He stated that apart from sending a right
    message to the contemnor, it will also send an appropriate message to all
    the members of the Bar as well as all citizens throughout the country
    that one should be careful and cautious while making any statement
    with regard to the judges or the institution of administration of justice.
    The learned Attorney General reiterated on several occasions that
    magnanimity is required to be shown by this Court. He further submitted
    that this Court by showing magnanimity, should give a quietus to this
    matter by giving warning to him instead of sentencing him.
  9. During the course of the arguments, it was also brought to the
    notice of Shri Dhavan, learned senior counsel, the fact that prior to the
    supplementary statement of the contemnor dated 24.08.2020, before it
    being filed in the Court, it was widely published in media on
    24/25.08.2020. It was also brought to the notice of Dr. Dhavan, learned
    senior counsel, that the contemnor had made various statements with
    regard to the present proceedings either in the press interviews or in the
    webinars, which have the effect of influencing the present proceedings
    and as to whether such an act at the behest of a litigant was permissible
    in law.
  10. Dr. Dhavan, learned senior counsel, fairly stated that publication of
    the supplementary statement of the contemnor in various print as well
    11
    as other media in advance was not proper, and he also stated that no
    lawyer or litigant should either give an interview, talk to the press or
    make any statement with regard to pending litigation before any Court.
    He submitted that though a fair criticism of judgment after the judgment
    was pronounced was permissible in law, making any statement or giving
    press interviews during the pendency of the litigation was not
    permissible.
  11. When Dr. Dhavan, learned senior counsel was confronted with the
    situation as to how the sitting, as well as retired judges who are not
    supposed to speak to anyone or to give interviews can defend the
    allegations made against them, Dr. Dhavan responded that though this
    Court should not reprimand the contemnor for the tweets made by him,
    this Court should lay down guidelines for the precautions to be observed
    by the lawyers and litigants while making any statements with respect to
    the judges and the institution of administration of justice. He submitted
    that this, apart from giving a right signal to the contemnor, would also
    give a signal to all the members of the Bar in the country.
  12. Dr. Dhavan, learned senior counsel, also submitted that we should
    consider the criticism made by the various persons in the media, and in
    case any punishment is inflicted, the Court will have to face further
    criticism.
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    In Re: Defence
  13. It is urged by Dr. Dhavan, learned senior counsel, that defence of
    the contemnor had not been taken into consideration while convicting
    him for criminal contempt. He pressed the defence in service to be
    examined before imposing any sentence. We propose to examine the
    defence. However, before we do so, to put the record straight, it is
    necessary to mention that Shri Dave, learned senior counsel appearing
    for Shri Prashant Bhushan, while arguing on 05.08.2020, after reading
    few lines from the affidavit in reply upto paragraph 38 stated that he
    would not go to the defence taken as reading of that would further
    malign the reputation of this Court. Since he did not press the defence
    into service, there was no occasion to take the same into consideration,
    specifically, in view of the aforesaid statement made by the learned
    senior counsel.
  14. It will be relevant to refer to the statement made by the contemnor
    which was made and read out before this Court by the contemnor on
    20.08.2020, which reads as under:­
    “I have gone through the judgment of this Hon’ble
    Court. I am pained that I have been held guilty of committing
    contempt of the Court whose majesty I have tried to uphold —
    not as a courtier or cheerleader but as a humble guard — for
    over three decades, at some personal and professional cost. I
    am pained, not because I may be punished, but because I
    have been grossly misunderstood.
    13
    I am shocked that the court holds me guilty of
    “malicious, scurrilous, calculated attack” on the institution of
    administration of justice. I am dismayed that the Court has
    arrived at this conclusion without providing any evidence of
    my motives to launch such an attack. I must confess that I am
    disappointed that the court did not find it necessary to serve
    me with a copy of the complaint on the basis of which the suo
    motu notice was issued, nor found it necessary to respond to
    the specific averments made by me in my reply affidavit or the
    many submissions of my counsel.
    I find it hard to believe that the Court finds my tweet
    “has the effect of destabilizing the very foundation of this
    important pillar of Indian democracy”. I can only reiterate that
    these two tweets represented my bonafide beliefs, the
    expression of which must be permissible in any democracy.
    Indeed, public scrutiny is desirable for healthy functioning of
    judiciary itself. I believe that open criticism of any institution
    is necessary in a democracy, to safeguard the constitutional
    order. We are living through that moment in our history when
    higher principles must trump routine obligations, when saving
    the constitutional order must come before personal and
    professional niceties, when considerations of the present must
    not come in the way of discharging our responsibility towards
    the future. Failing to speak up would have been a dereliction
    of duty, especially for an officer of the court like myself.
    My tweets were nothing but a small attempt to discharge
    what I considered to be my highest duty at this juncture in the
    history of our republic. I did not tweet in a fit of absence
    mindedness. It would be insincere and contemptuous on my
    part to offer an apology for the tweets that expressed what was
    and continues to be my bonafide belief. Therefore, I can only
    humbly paraphrase what the father of the nation Mahatma
    Gandhi had said in his trial: I do not ask for mercy. I do not
    appeal to magnanimity. I am here, therefore, to cheerfully
    submit to any penalty that can lawfully be inflicted upon me
    for what the Court has determined to be an offence, and what
    appears to me to be the highest duty of a citizen.”
  15. The contemnor, in the statement made in this Court on
    20.08.2020, stated that the Court did not consider it necessary to
    respond to the specific averments made by him in the reply affidavit. The
    14
    contemnor was present along with his counsel, and what was urged was
    taken into consideration. When we had heard Shri Dave, learned senior
    counsel appearing on behalf of the contemnor, on 05.08.2020, the
    contemnor was very much present there and we had taken into
    consideration the submissions which were made in the presence of the
    contemnor.
  16. After the judgment of conviction, when this Court had granted time
    to the contemnor to submit unconditional apology, if he so desired, the
    supplementary statement has been made by Shri Prashant Bhushan on
    24.08.2020 to the following effect: ­
    “It is with deep regret that I read the order of this
    Hon’ble Court dated 20th of August. At the hearing the court
    asked me to take 2­3 days to reconsider the statement I made
    in the court. However, the order subsequently states: “We
    have given time to the contemnor to submit unconditional
    apology, if he so desires.”
    I have never stood on ceremony when it comes to
    offering an apology for any mistake or wrongdoing on my part.
    It has been a privilege for me to have served this institution
    and bring several important public interest causes before it. I
    live with the realisation that I have received from this
    institution much more than I have had the opportunity to give
    it. I cannot but have the highest regard for the institution of
    the Supreme Court.
    I believe that the Supreme Court is the last bastion of
    hope for the protection of fundamental rights, the watchdog
    institutions and indeed for constitutional democracy itself. It
    has rightly been called the most powerful court in the
    democratic world, and often an exemplar for courts across the
    globe. Today in these troubling times, the hopes of the people
    of India vest in this Court to ensure the rule of law and the
    Constitution and not an untrammelled rule of the executive.
    15
    This casts a duty, especially for an officer of this Court
    like myself, to speak up, when I believe there is a deviation
    from its sterling record. Therefore, I express myself in good
    faith, not to malign the Supreme Court or any particular Chief
    Justice, but to offer constructive criticism so that the court
    can arrest any drift away from its long­standing role as a
    guardian of the Constitution and custodian of people’s rights.
    My tweets represented this bonafide belief that I
    continue to hold. Public expression of these beliefs was I
    believe, in line with my higher obligations as a citizen and a
    loyal officer of this court. Therefore, an apology for expression
    of these beliefs, conditional or unconditional, would be
    insincere. An apology cannot be mere incantation and any
    apology has to, as the court has itself put it, be sincerely
    made. This is specially so when I have made the statements
    bonafide and pleaded truths with full details, which have not
    been dealt with by the Court. If I retract a statement before
    this court that I otherwise believe to be true or offer an
    insincere apology, that in my eyes would amount to the
    contempt of my conscience and of an institution that I hold in
    highest esteem.”
  17. In both the statements he has reiterated that “I have made
    statements bona fide and pleaded truths with full details which have not
    been dealt with by the Court”.
  18. Without going into the scope of the aspects to be examined while
    sentencing, we propose to consider the defence taken by the contemnor
    in his reply affidavit.
  19. For appreciating the submission made by the contemnor it will be
    relevant to refer to Section 13 of the Amended Act of 1971, as amended
    in 2006, which reads thus: ­
    16
    “13. Contempts not punishable in certain cases –
    Notwithstanding anything contained in any law for the time
    being in force –
    (a) no court shall impose a sentence under this Act for a
    contempt of court unless it is satisfied that the contempt is
    of such a nature that it substantially interferes, or tends
    substantially to interfere with the due course of justice;
    (b) the court may permit, in any proceeding for contempt of
    court, justification by truth as a valid defence if it is
    satisfied that it is in public interest and the request for
    invoking the said defence is bona fide.”
  20. The aforesaid provision 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.
  21. The sine qua non for considering the truth as a valid defence are
    that the Court should be satisfied that defence is in the public interest
    and the request for invoking the said defence is bona fide. Be that as it
    may, since the contemnor is insisting that at this stage also the Court is
    required to take truth as a defence into consideration, we would be
    required to consider the same, lest the contemnor feels that we have
    avoided its consideration.
  22. In Indirect Tax Practitioners’ Association v. R.K. Jain, (2010) 8
    SCC 281, it was held thus: ­
    17
    “39. The matter deserves to be examined from another
    angle. The substituted Section 13 represents an important
    legislative recognition of one of the fundamentals of our
    value system i.e. truth. The amended section enables the
    court to permit justification by truth as a valid defence in
    any contempt proceeding if it is satisfied that such defence
    is in public interest and the request for invoking the defence
    is bona fide. In our view, if a speech or article, editorial, etc.
    contains something which appears to be contemptuous and
    this Court or the High Court is called upon to initiate
    proceedings under the Act and Articles 129 and 215 of the
    Constitution, the truth should ordinarily be allowed as a
    defence unless the Court finds that it is only a camouflage
    to escape the consequences of deliberate or malicious
    attempt to scandalise the court or is an interference with the
    administration of justice. Since, the petitioner has not even
    suggested that what has been mentioned in the editorial is
    incorrect or that the respondent has presented a distorted
    version of the facts, there is no warrant for discarding the
    respondent’s assertion that whatever he has written is
    based on true facts and the sole object of writing the
    editorial was to enable the authorities concerned to take
    corrective/remedial measures.
  23. In our view, a person like the respondent can
    appropriately be described as a whistleblower for the system
    who has tried to highlight the malfunctioning of an
    important institution established for dealing with cases
    involving revenue of the State and there is no reason to
    silence such a person by invoking Articles 129 or 215 of the
    Constitution or the provisions of the Act.”
  24. In Subramanian Swamy (supra), this Court approved the decision
    rendered in Indirect Tax Practitioners’ Association v. R.K. Jain (supra)
    and observed: ­
    “13. The legal position with regard to truth as a defence in
    contempt proceedings is now statutorily settled by Section
    13 of the 1971 Act (as substituted by Act 6 of 2006). The
    Statement of Objects and Reasons for the amendment of
    Section 13 by Act 6 of 2006 read as follows:
    18
    “1. The existing provisions of the Contempt of
    Courts Act, 1971 have been interpreted in various
    judicial decisions to the effect that truth cannot be
    pleaded as a defence to a charge of contempt of court.
  25. The National Commission to Review the Working
    of the Constitution [NCRWC] has also in its report,
    inter alia, recommended that in matters of contempt, it
    shall be open to the court to permit a defence of
    justification by truth.
  26. The Government has been advised that the
    amendments to the Contempt of Courts Act, 1971 to
    provide for the above provision would introduce
    fairness in procedure and meet the requirements of
    Article 21 of the Constitution.
  27. Section 13 of the Contempt of Courts Act, 1971
    provides certain circumstances under which contempt
    is not punishable. It is, therefore, proposed to
    substitute the said section, by an amendment.
  28. The Contempt of Courts (Amendment) Bill, 2003
    was introduced in the Lok Sabha on 8­5­2003 and the
    same was referred to the Department­related
    Parliamentary Standing Committee on Home Affairs for
    examination. The Hon’ble Committee considered the
    said Bill in its meeting held on 2­9­2003. However, with
    the dissolution of the 13th Lok Sabha, the Contempt of
    Courts (Amendment) Bill, 2003 lapsed. It is proposed to
    reintroduce the said Bill with modifications of a
    drafting nature.”
  29. A two­Judge Bench of this Court in R.K. Jain [(2010)
    8 SCC 281] had an occasion to consider Section 13 of the
    1971 Act, as substituted by Act 6 of 2006. In para 39 the
    Court said: (SCC p. 311)
    “39. … The substituted Section 13 represents an
    important legislative recognition of one of the
    fundamentals of our value system i.e. truth. The
    amended section enables the court to permit
    justification by truth as a valid defence in any
    contempt proceeding if it is satisfied that such defence
    is in public interest and the request for invoking the
    defence is bona fide. In our view, if a speech or article,
    editorial, etc. contains something which appears to be
    contemptuous and this Court or the High Court is
    called upon to initiate proceedings under the Act and
    Articles 129 and 215 of the Constitution, the truth
    19
    should ordinarily be allowed as a defence unless the
    Court finds that it is only a camouflage to escape the
    consequences of deliberate or malicious attempt to
    scandalise the court or is an interference with the
    administration of justice. Since, the petitioner has not
    even suggested that what has been mentioned in the
    editorial is incorrect or that the respondent has
    presented a distorted version of the facts, there is no
    warrant for discarding the respondent’s assertion that
    whatever he has written is based on true facts and the
    sole object of writing the editorial was to enable the
    authorities concerned to take corrective/remedial
    measures.”
    Thus, the two­Judge Bench has held that the amended
    section enables the Court to permit justification by truth as
    a valid defence in any contempt proceedings if it is satisfied
    that such defence is in public interest and the request for
    invoking the defence is bona fide. We approve the view of the
    two­Judge Bench in R.K. Jain [(2010) 8 SCC 281]. Nothing
    further needs to be considered with regard to second
    question since the amendment in contempt law has
    effectively rendered this question redundant.”
  30. It was submitted by Dr. Dhavan, learned senior counsel, that the
    second tweet was an expression of opinion by Mr. Prashant Bhushan
    that the democracy has been substantially destroyed in the country in
    the past six years and the Court has also played its role in the same.
    However, the Court did not go into the said defence. It was submitted
    that the said opinion was carved out on the basis of material which was
    placed on record along with the affidavit in reply. However, the said
    material was also not taken into consideration by this Court.
  31. Learned Attorney General, after being taken through the defence
    taken by the contemnor in the reply, fairly stated that contemnor should
    20
    be asked to withdraw such defences and it should be taken off the
    records.
  32. With regard to the averments made in the affidavit in reply of Shri
    Prashant Bhushan, the learned Attorney General submitted that the
    affidavit contains various allegations against several retired Chief
    Justices as well as the sitting and retired Judges of this Court. He
    submitted that such a defence cannot be examined without hearing the
    Judges against whom such allegations are made and therefore such a
    defence cannot be considered unless the persons against whom
    allegations are made are heard. He, therefore, stated that the contemnor
    should express regret for taking such a defence and withdraw the same.
    On the examination of the defence of the contemnor, we concur with the
    submission made by the learned 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 Mr. Dave, learned
    senior counsel, was heard in the presence of the contemnor, on
    05.08.2020, he 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, we endorse the view of learned Attorney
    General that the defence should be taken off the record and, in our
    21
    opinion, it is neither bona fide nor in the public interest and as such it
    fails to clear the twin test, which we are examining.
  33. One of the reasons why we hold so is that though the tweet is 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.
  34. We are of the view that, in the circumstances, 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.
  35. He averred that this Court had surrendered to the majoritarian
    executive and that when majoritarian executive was acting in tyranny,
    the Supreme Court has not been able to stand to correct the executive.
  36. The averment in the affidavit also referred to formation of the
    Benches by the Chief Justice. There is reference to various cases dealt
    22
    with by 9­Judges and 5­Judges of this Court and has casted aspersions
    on the entire justice delivery system and on a large number of Judges.
  37. He has further averred with respect to the withdrawal of the case
    which was filed questioning the decision of rejection of impeachment
    motion moved against the then Chief Justice. He has also referred to
    various matters pending adjudication before this Court and also
    adversely commented on the functioning of this Court. He has raised
    eyebrows on the Ayodhya verdict and blamed this Court.
  38. After going through the various averments made in the affidavit in
    reply for supporting truth as defence, we are of the considered view that
    the defence taken is neither in the public interest nor bona fide one, but
    the contemnor has indulged in making reckless allegations against the
    institution of administration of justice. As referred by the learned
    Attorney General the averments are based on political consideration, and
    therefore in our view cannot be considered to support the case of the
    contemnor of truth as a defence.
  39. 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.
    23
  40. 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.
  41. It is apparent that the contemnor is involved in making allegations
    against the retired and sitting Judges. On one hand, our attention was
    attracted by Shri Dushyant Dave, learned senior counsel, towards the
    norms of judicial conduct which also 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
    24
    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. In Halsbury’s Laws of England,
    Fourth Edition, Volume 9, in para 27, it is observed that the
    punishment is inflicted, not for the purpose of protecting either the Court
    as a whole or the individual Judges of the Court from repetition of the
    attack but for protecting the public and especially those who either
    voluntarily or by compulsion are subject to the jurisdiction of the Court,
    from the mischief they will incur if the authority of the Tribunal is
    undermined or impaired. Hostile criticism of the judges or judiciary is
    25
    definitely an act of scandalizing the Court. Defamatory publication
    concerning the Judge or institution brings impediment to justice.
  42. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and
    Others, (1995) 5 SCC 457, this Court dealt with a matter with respect to
    allegation against the conduct of a Judge. A Resolution was passed by
    the Bar Council against Judge/Chief Justice of the High Court alleging
    misconduct. This Court held that Bar Council cannot make scurrilous
    criticism of conduct of the Judge/Chief Justice and pressurise or coerce
    him to demit the office. Such action would constitute contempt of court
    and affect independence of judiciary which is an essential attribute of
    rule of law and also affect judicial individualism. This Court further
    observed that, however, where the Bar honestly doubts the conduct of
    the Judge/Chief Justice and such doubt is based on authentic and
    acceptable material, the proper course for officer­bearers of the Bar
    Association would be to meet the Judge in camera and apprise him or
    approach the Chief Justice of that High Court to deal with the matter
    appropriately. When the allegation is against the Chief Justice of the
    High Court, Bar Association should directly approach the Chief Justice of
    India. Thereafter, the Chief Justice has to take a decision. Until such
    decision is taken, the Bar should suspend all further action and await
    response for a reasonable period. It was held that independence of the
    26
    judiciary is an essential attribute of rule of law, which is the basic
    feature of the Constitution and that judiciary must be free from not only
    executive pressure but also from other pressures. Individual Judge has
    to feel secure in view of social demand for active judicial role which he is
    required to fulfil. This Court also considered that criticism of the
    judiciary is not protected under Article 19(1)(a) of the Constitution. It
    was also observed that fair criticism is based on the authentic and
    acceptable material permissible but when criticism tends to create
    apprehension in the minds of the people regarding integrity, ability and
    fairness of the Judge, it amounts to contempt. Such criticism is not
    protected under Article 19(1)(a) of the Constitution. It was also observed
    that the Judge should maintain high standard of conduct based on high
    tradition. It was held thus :­
    “10. The diverse contentions give rise to the question
    whether any Bar Council or Bar Association has the right to
    pass resolution against the conduct of a Judge perceived to
    have committed misbehaviour and, if so, what is its effect on
    independence of the judiciary. With a view to appreciate the
    contentions in their proper perspective, it is necessary to
    have at the back of our mind the importance of the
    independence of the judiciary. In a democracy governed by
    rule of law under a written constitution, judiciary is sentinel
    on the qui vive to protect the fundamental rights and to
    poise even scales of justice between the citizens and the
    State or the States inter se. Rule of law and judicial review
    are basic features of the Constitution. As its integral
    constitutional structure, independence of the judiciary is an
    essential attribute of rule of law. In S.P. Gupta v. Union of
    India [1981 Supp SCC 87] (SCC p. 221, para 27) this Court
    held that if there is one principle which runs through the
    27
    entire fabric of the Constitution it is the principle of the rule
    of law, and under the Constitution it is the judiciary which
    is entrusted with the task of keeping every organ of the
    State within the limits of the law and thereby making the
    rule of law meaningful and effective. Judicial review is one of
    the most potent weapons in the armoury of law. The
    judiciary seeks to protect the citizen against violation of his
    constitutional or legal rights or misuse or abuse of power by
    the State or its officers. The judiciary stands between the
    citizen and the State as a bulwark against executive
    excesses and misuse or abuse of power by the executive. It
    is, therefore, absolutely essential that the judiciary must be
    free from executive pressure or influence which has been
    secured by making elaborate provisions in the Constitution
    with details. The independence of judiciary is not limited
    only to the independence from the executive pressure or
    influence; it is a wider concept which takes within its sweep
    independence from any other pressure and prejudices. It
    has many dimensions, viz., fearlessness of other power
    centres, economic or political, and freedom from prejudices
    acquired and nourished by the class to which the judges
    belong.
    Judicial individualism — Whether needs protection?
  43. Independent judiciary is, therefore, most essential when
    liberty of citizen is in danger. It then becomes the duty of
    the judiciary to poise the scales of justice unmoved by the
    powers (actual or perceived) undisturbed by the clamour of
    the multitude. The heart of judicial independence is judicial
    individualism. The judiciary is not a disembodied
    abstraction. It is composed of individual men and women
    who work primarily on their own. Judicial individualism, in
    the language of Justice Powell of the Supreme Court of
    United States in his address to the American Bar
    Association, Labour Law Section on 11­8­1976, is “perhaps
    one of the last citadels of jealously preserved individualism
    …”. Justice Douglas in his dissenting opinion in Stephen S.
    Chandler v. Judicial Council of the Tenth Circuit of the United
    States [398 US 74] stated:
    “No matter how strong an individual judge’s spine,
    the threat of punishment — the greatest peril to
    judicial independence — would project as dark a
    shadow whether cast by political strangers or by
    judicial colleagues. A federal judge must be
    28
    independent of every other judge…. Neither one alone
    nor any number banded together can act as censor and
    place sanctions on him. It is vital to preserve the
    opportunities for judicial individualism.”
  44. The Advocates Act, 1961 gave autonomy to a Bar
    Council of a State or Bar Council of India and Section 6(1)
    empowers them to make such action deemed necessary to
    set their house in order, to prevent fall in professional
    conduct and to punish the incorrigible as not befitting the
    noble profession apart from admission of the advocates on
    its roll. Section 6(1)(c) and rules made in that behalf,
    Sections 9, 35, 36, 36­B and 37 enjoin it to entertain and
    determine cases of misconduct against advocates on its roll.
    The members of the judiciary are drawn primarily and
    invariably from the Bar at different levels. The high moral,
    ethical and professional standards among the members of
    the Bar are preconditions even for high ethical standards of
    the Bench. Degeneration thereof inevitably has its eruption
    and tends to reflect the other side of the coin. The Bar
    Council, therefore, is enjoined by the Advocates Act to
    maintain high moral, ethical and professional standards
    which of late is far from satisfactory. Their power under the
    Act ends thereat and extends no further. Article 121 of the
    Constitution prohibits discussion by the members of
    Parliament of the conduct of any Judge of the Supreme
    Court or of High Court in the discharge of his duties except
    upon a motion for presenting an address to the President
    praying for the removal of the Judge as provided under
    Article 124(4) and (5) and in the manner laid down under
    the Act, the Rules and the rules of business of Parliament
    consistent therewith. By necessary implication, no other
    forum or fora or platform is available for discussion of the
    conduct of a Judge in the discharge of his duties as a Judge
    of the Supreme Court or the High Court, much less a Bar
    Council or group of practising advocates. They are
    prohibited to discuss the conduct of a Judge in the
    discharge of his duties or to pass any resolution in that
    behalf.
  45. In Halsbury’s Laws of England (4th Edn.) Vol. 9, para
    27, at p. 21, it is stated that scandalising the court would
    mean any act done or writing published which is calculated
    to bring a court or a Judge into contempt, or to lower his
    authority, or to interfere with the due course of justice or
    the lawful process of the court. Scurrilous abuse of a Judge
    29
    or court, or attacks on the personal character of a Judge,
    are punishable contempts. Punishment is inflicted, not for
    the purpose of protecting either the court as a whole or the
    individual Judges of the court from repetition of the attack,
    but for protecting the public, and especially those who
    either voluntarily or by compulsion are subject to the
    jurisdiction of the court, from the mischief they will incur if
    the authority of the tribunal is undermined or impaired. In
    consequence, the court has regarded with particular
    seriousness allegations of partiality or bias on the part of a
    Judge or a court. Criticism of a Judge’s conduct or of the
    conduct of a court even if strongly worded, is, however, not
    contempt, provided that the criticism is fair, temperate and
    made in good faith and is not directed to the personal
    character of a Judge or to the impartiality of a Judge or
    court.
  46. In Oswald’s Contempt of Court (3rd Edn.), 1993, at p. 50
    it is stated that libel upon courts is made contempt
    “to keep a blaze of glory around them, and to deter people
    from attempting to render them contemptible in the eyes
    of the public…. A libel upon a court is a reflection upon
    the King, and telling the people that the administration of
    justice is in weak or corrupt hands, that the fountain of
    justice itself is tainted, and consequently that judgments
    which stream out of that fountain must be impure and
    contaminated.”
    A libel upon a Judge in his judicial capacity is a contempt,
    whether it concerns what he did in court, or what he did
    judicially out of it. At p. 91, it is stated that all publications
    which offend against the dignity of the court, or are
    calculated to prejudice the course of justice, will constitute
    contempt. One of the natures of offences is scandalising the
    courts. In Contempt of Court (2nd Edn.) by C.J. Miller at p.
    366, Lord Diplock is quoted from Chokolingo v. Attorney
    General of Trinidad and Tobago [(1981) 1 All ER 244, 248]
    who spoke for the Judicial Committee summarising the
    position thus:
    “ ‘Scandalising the court’ is a convenient way of
    describing a publication which, although it does not
    relate to any specific case either past or pending or any
    specific Judge, is a scurrilous attack on the judiciary as
    a whole, which is calculated to undermine the authority
    of the courts and public confidence in the
    administration of justice.”
    30
    In Borrie and Lowe’s Law of Contempt (2nd Edn.) at p. 226 it
    is stated that the necessity for this branch of contempt lies
    in the idea that without well­regulated laws a civilised
    community cannot survive. It is therefore thought important
    to maintain the respect and dignity of the court and its
    officers, whose task it is to uphold and enforce the law,
    because without such respect, public faith in the
    administration of justice would be undermined and the law
    itself would fall into disrepute. Even in the latest Report on
    Contempt of Court by Phillimore Committee to revise the
    penal enforcement of contempt, adverting to Lord Atkin’s
    dictum that courts are satisfied to leave to public opinion
    attacks or comments derogatory or scandalous to them, in
    paragraph 162, the Committee had stated that at one stage
    “we considered whether such conduct should be
    subject to penal sanctions at all. It was argued that any
    Judge who was attacked would have the protection of
    the law of defamation, and that no further protection is
    necessary. We have concluded, however, that some
    restraints are still required, for two reasons. First, this
    branch of the law of contempt is concerned with the
    protection of the administration of justice, and
    especially the preservation of public confidence in its
    honesty and impartiality; it is only incidentally, if at all,
    concerned with the personal reputations of Judges.
    Moreover, some damaging attacks, for example upon an
    unspecified group of Judges, may not be capable of
    being made the subject of libel proceedings at all.
    Secondly, Judges commonly feel constrained by their
    position not to take action in reply to criticism, and
    they have no proper forum in which to do so such as
    other public figures may have. These considerations
    lead us to the conclusion that there is need for an
    effective remedy … against imputations of improper or
    corrupt judicial conduct.”
    The Contempt of Courts Act, 1971 engrafted suitable
    amendments accordingly.
    Freedom of expression and duty of Advocate
  47. It is true that freedom of speech and expression
    guaranteed by Article 19(1)(a) of the Constitution is one of
    the most precious liberties in any democracy. But equally
    important is the maintenance of respect for judicial
    independence which alone would protect the life, liberty and
    31
    reputation of the citizen. So the nation’s interest requires
    that criticism of the judiciary must be measured, strictly
    rational, sober and proceed from the highest motives
    without being coloured by partisan spirit or pressure tactics
    or intimidatory attitude. The Court must, therefore,
    harmonise constitutional values of free criticism and the
    need for a fearless curial process and its presiding
    functionary, the Judge. If freedom of expression subserves
    public interest in reasonable measure, public justice cannot
    gag it or manacle it; but if the court considered the attack
    on the Judge or Judges scurrilous, offensive, intimidatory or
    malicious, beyond condonable limits, the strong arm of the
    law must strike a blow on him who challenges the
    supremacy of the rule of the law by fouling its source and
    stream. The power to punish the contemner is, therefore,
    granted to the court not because Judges need the protection
    but because the citizens need an impartial and strong
    judiciary.
  48. The threat of action on vague grounds of dissatisfaction
    would create a dragnet that would inevitably sweep into its
    grasp the maverick, the dissenter, the innovator, the
    reformer — in one word the unpopular. Insidious attempts
    pave way for removing the inconvenient. Therefore, proper
    care should be taken by the Bar Association concerned.
    First, it should gather specific, authentic and acceptable
    material which would show or tend to show that conduct on
    the part of a Judge creating a feeling in the mind of a
    reasonable person doubting the honesty, integrity,
    impartiality or act which lowers the dignity of the office but
    necessarily, is not impeachable misbehaviour. In all fairness
    to the Judge, the responsible office­bearers should meet him
    in camera after securing interview and apprise the Judge of
    the information they had with them. If there is truth in it,
    there is every possibility that the Judge would mend
    himself. Or to avoid embarrassment to the Judge, the officebearers can approach the Chief Justice of that High Court
    and apprise him of the situation with material they have in
    their possession and impress upon the Chief Justice to deal
    with the matter appropriately.”
  49. It was argued by Shri Dhavan, learned senior counsel, that
    question of purging arises mainly in civil contempt. The question of
    32
    purging in criminal contempt was considered by this Court in Pravin C.
    Shah v. K.A. Mohd Ali and Another, (2001) 8 SCC 650. The Bar
    Council took the view that the purging of contempt can be only by
    regretting or apologising in the case of criminal contempt and in civil
    contempt, by subsequent compliance with the order or directions the
    contempt can be purged. The following question arose:­
    “23. Now we have to consider the crucial question — how
    can a contemnor purge himself of the contempt? According
    to the Disciplinary Committee of the Bar Council of India,
    purging oneself of contempt can be done by apologising to
    the court. The said opinion of the Bar Council of India can
    be seen from the following portion of the impugned order:
    “Purging oneself of contempt can be only by
    regretting or apologising in the case of a completed
    action of criminal contempt. If it is a case of civil
    contempt, by subsequent compliance with the orders or
    directions the contempt can be purged of. There is no
    procedural provision in law to get purged of contempt
    by an order of an appropriate court.”
    (i) Meaning of purging was considered by this Court thus:­
    “24. Purging is a process by which an undesirable element
    is expelled either from one’s own self or from a society. It is a
    cleaning process. Purge is a word which acquired
    implications first in theological connotations. In the case of a
    sin, purging of such sin is made through the expression of
    sincere remorse coupled with doing the penance required. In
    the case of a guilt, purging means to get himself cleared of
    the guilt. The concept of purgatory was evolved from the word
    “purge”, which is a state of suffering after this life in which
    those souls, who depart this life with their deadly sins, are
    purified and rendered fit to enter into heaven where nothing
    defiled enters (vide Words and Phrases, Permanent Edn., Vol.
    35­A, p.307). In Black’s Law Dictionary the word “purge” is
    given the following meaning: “To cleanse; to clear. To clear or
    exonerate from some charge or imputation of guilt, or from a
    33
    contempt.” It is preposterous to suggest that if the convicted
    person undergoes punishment or if he tenders the fine
    amount imposed on him the purge would be completed.”
    (ii) This Court considered how purging can take place thus:­
    “25. We are told that a learned Single Judge of the
    Allahabad High Court has expressed a view that
    purging process would be completed when the
    contemnor undergoes the penalty [vide Madan Gopal
    Gupta (Dr) v. Agra University [AIR 1974 All. 39]]. This
    is what the learned Single Judge said about it: (AIR p.
    43, para 13)
    “In my opinion a party in contempt purged its
    contempt by obeying the orders of the court or by
    undergoing the penalty imposed by the court.”
  50. Obeying the orders of the court would be a mode
    by which one can make the purging process in a
    substantial manner when it is a civil contempt. Even
    for such a civil contempt the purging process would
    not be treated as completed merely by the contemnor
    undergoing the penalty imposed on him unless he has
    obeyed the order of the court or he has undone the
    wrong. If that is the position in regard to civil
    contempt the position regarding criminal contempt
    must be stronger. Section 2 of the Contempt of Courts
    Act categorises contempt of court into two categories.
    The first category is “civil contempt” which is the wilful
    disobedience of the order of the court including breach
    of an undertaking given to the court. But “criminal
    contempt” includes doing any act whatsoever, which
    tends to scandalise or lowers the authority of any
    court, or tends to interfere with the due course of a
    judicial proceeding or interferes with, or obstructs the
    administration of justice in any other manner.”
  51. This Court did not approve the view that merely undergoing the
    penalty imposed on a contemnor is sufficient to complete the process of
    purging himself for the contempt. In case of sentence of fine, the
    contemnor can pay the fine and continue to persist with contemptuous
    34
    conduct again and again. Something more is required to purge the
    criminal contempt. Even a statement of apology is not enough to purge
    the contempt. 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. Before contempt is purged, the advocate could suffer the
    consequences of Rule 11 of the Rules which postulates that in case the
    advocate has been found guilty of contempt of court, his authority to act
    or plead in any court stands snapped.
  52. In Pravin C. Shah (supra), this Court held thus:­
    “22. We have already pointed out that Rule 11 of the Rules is a
    self­operating provision. When the first postulate of it is completed
    (that the advocate has been found guilty of contempt of court) his
    authority to act or plead in any court stands snapped, though
    perhaps for the time being. If he does such things without the
    express permission of the court he would again be guilty of
    contempt of court besides such act being a misconduct falling
    within the purview of Section 34 of the Advocates Act. The interdict
    as against him from appearing in court as a counsel would
    continue until such time as he purges himself of the contempt.
  53. We cannot therefore approve the view that merely
    undergoing the penalty imposed on a contemnor is sufficient to
    complete the process of purging himself of the contempt,
    particularly in a case where the contemnor is convicted of criminal
    contempt. The danger in giving accord to the said view of the
    learned Single Judge in the aforecited decision is that if a
    contemnor is sentenced to a fine he can immediately pay it and
    continue to commit contempt in the same court, and then again
    pay the fine and persist with his contemptuous conduct. There
    must be something more to be done to get oneself purged of the
    contempt when it is a case of criminal contempt.
  54. The Disciplinary Committee of the Bar Council of India
    highlighted the absence of any mode of purging oneself of the guilt
    35
    in any of the Rules as a reason for not following the interdict
    contained in Rule 11. Merely because the Rules did not prescribe
    the mode of purging oneself of the guilt it does not mean that one
    cannot purge the guilt at all. The first thing to be done in that
    direction when a contemnor is found guilty of a criminal contempt
    is to implant or infuse in his own mind real remorse about his
    conduct which the court found to have amounted to contempt of
    court. Next step is to seek pardon from the court concerned for
    what he did on the ground that he really and genuinely repented
    and that he has resolved not to commit any such act in future. It is
    not enough that he tenders an apology. The apology tendered
    should impress the court to be genuine and sincere. If the court,
    on being impressed of his genuineness, accepts the apology then it
    could be said that the contemnor has purged himself of the guilt.
  55. This Court has held in M.Y. Shareef v. Hon’ble Judges of the
    Nagpur High Court [AIR 1955 SC 19] that
    “an apology is not a weapon of defence to purge the guilty of
    their offence; nor is it intended to operate as a universal
    panacea, but it is intended to be evidence of real contriteness”.
    (AIR p. 23, para 10)
    Ahmadi, J. (as the learned Chief Justice then was) in M.B. Sanghi,
    Advocate v. High Court of Punjab and Haryana [(1991) 3 SCC 600]
    while considering an apology tendered by an advocate in a
    contempt proceeding has stated thus: (SCC p. 603, para 2)
    “And here is a member of the profession who has repeated
    his performance presumably because he was let off lightly on
    the first occasion. Soft justice is not the answer — not that
    the High Court has been harsh with him — what I mean is he
    cannot be let off on an apology which is far from sincere. His
    apology was hollow, there was no remorse — no regret — it
    was only a device to escape the rigour of the law. What he
    said in his affidavit was that he had not uttered the words
    attributed to him by the learned Judge; in other words the
    learned Judge was lying — adding insult to injury — and yet
    if the court finds him guilty (he contested the matter tooth
    and nail) his unqualified apology may be accepted. This is no
    apology, it is merely a device to escape.”
  56. A four­Judge Bench of this Court in Mulk Raj v. State of
    Punjab [(1972) 3 SCC 839] made the following observations which
    36
    would throw considerable light on the question before us: (SCC p.
    840, para 9)
    “9. Apology is an act of contrition. Unless apology is
    offered at the earliest opportunity and in good grace apology
    is shorn of penitence. If apology is offered at a time when the
    contemnor finds that the court is going to impose
    punishment it ceases to be an apology and it becomes an act
    of a cringing coward. The High Court was right in not taking
    any notice of the appellant’s expression of apology ‘without
    any further word’. The High Court correctly said that
    acceptance of apology in the case would amount to allow the
    offender to go away with impunity after having committed
    gross contempt.”
  57. This Court further held that till contempt is purged, the advocate
    has to suffer the consequences of Rule 11. This Court held: ­
    “34. The respondent Advocate continued to appear in all the
    courts where he was earlier appearing even after he was
    convicted by the High Court for criminal contempt without
    being objected by any court. This is obviously on account of the
    fact that presiding officers of the court were not informed of
    what happened. We, therefore, direct that in future, whenever
    an advocate is convicted by the High Court for contempt of
    court, the Registrar of that High Court shall intimate the fact to
    all the courts within the jurisdiction of that High Court so that
    presiding officers of all courts would get the information that
    the particular advocate is under the spell of the interdict
    contained in Rule 11 of the Rules until he purges himself of the
    contempt.
  58. It is still open to the respondent Advocate to purge himself
    of the contempt in the manner indicated above. But until that
    process is completed the respondent Advocate cannot act or
    plead in any court situated within the domain of the Kerala
    High Court, including the subordinate courts thereunder. The
    Registrar of the High Court of Kerala shall intimate all the
    courts about this interdict as against the respondent
    Advocate.”
    37
  59. In Bar Council of India v. High Court of Kerala, (2004) 6 SCC
    311, the ratio in Pravin C. Shah (supra) was affirmed by this Court. It
    was held that the Court has the power to punish under Article 129 of the
    Constitution of India and can punish advocate. The Court relied the
    decision in Supreme Court Bar Association v. Union of India, (1998) 4
    SCC 409. It was held thus:­
    “34. Although in a case of professional misconduct, this
    Court cannot punish an advocate in exercise of its jurisdiction
    under Article 129 of the Constitution of India which can be
    imposed on a finding of professional misconduct recorded in
    the manner prescribed under the Advocates Act and the Rules
    framed thereunder but as has been noticed in Supreme Court
    Bar Assn. [(1998) 4 SCC 409] professional misconduct of the
    advocate concerned is not a matter directly in issue in the
    matter of contempt case.”
  60. Roshan Lal Ahuja, In Re:, (1993) Supp. 4 SCC 446, it was held
    that pleadings made had the effect on scandalizing and lowering the
    authority of the Court in relation to the judicial matters but also had the
    effect of substantial interference with obstructing the administration of
    justice. Unfounded and unwarranted aspersions had the tendency to
    undermine the authority of the Court and would create distrust in the
    mind of the public and on the capacity to impart fearless justice.
    38
  61. It will be relevant refer to the following clauses of the ‘Restatement
    of Values of Judicial Life’ adopted in the Chief Justices’ Conference
    at New Delhi on September 18­19, 1992:­
    “..(8) A Judge shall not enter into a public debate or express
    his views in public on political matters or on matters that are
    pending or are likely to arise for judicial determination.
    (9) A Judge is expected to let his judgment speak for
    themselves. He shall not give interview to the media.”
  62. The contemnor has tried to justify the averments made on the basis
    of the Press Conference dated 12.01.2018 of the four senior­most 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. We hope it was the
    first and the last occasion that the Judges have gone to press, and God
    gives wisdom to protect its dignity by internal mechanism, particularly,
    when allegations made, if any, publicly cannot be met by sufferer
    Judges. It would cause suffering to them till eternity. 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 also, 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
    39
    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, as observed in R.
    Muthukrishnan v. The Registrar General of The High Court of
    Judicature at Madras, (2019) 16 SCC 407. The relevant portion of the
    judgment is extracted hereunder:­
    “25. The role of a lawyer is indispensable in the system of
    delivery of justice. He is bound by the professional ethics
    and to maintain the high standard. His duty is to the
    court, to his own client, to the opposite side, and to
    maintain the respect of opposite party counsel also. What
    may be proper to others in the society, may be improper
    for him to do as he belongs to a respected intellectual
    class of the society and a member of the noble profession,
    the expectation from him is higher. Advocates are treated
    with respect in society. People repose immense faith in
    the judiciary and judicial system and the first person who
    deals with them is a lawyer. Litigants repose faith in a
    lawyer and share with them privileged information. They
    put their signatures wherever asked by a lawyer. An
    advocate is supposed to protect their rights and to ensure
    that untainted justice is delivered to his cause.
  63. The high values of the noble profession have to be
    protected by all concerned at all costs and in all the
    circumstances cannot be forgotten even by the
    youngsters in the fight of survival in formative years. The
    nobility of the legal profession requires an advocate to
    remember that he is not over attached to any case as
    advocate does not win or lose a case, real recipient of
    justice is behind the curtain, who is at the receiving end.
    As a matter of fact, we do not give to a litigant anything
    except recognising his rights. A litigant has a right to be
    impartially advised by a lawyer. Advocates are not
    supposed to be money guzzlers or ambulance chasers. A
    lawyer should not expect any favour from the Judge and
    should not involve by any means in influencing the fair
    40
    decision­making process. It is his duty to master the
    facts and the law and submit the same precisely in the
    court, his duty is not to waste the courts’ time.”
  64. The decision in Mohit Chaudhary, In re [Mohit
    Chaudhary, In re, (2017) 16 SCC 78] has also been relied
    upon in which this Court considered Rule 10 and
    debarred an advocate to practice as Advocate­on­Record
    for a period of one month from the date of order. At the
    same time, this Court has observed that a lawyer is
    under obligation to do nothing that shall detract from the
    dignity of the Court. Contempt jurisdiction is for the
    purpose of upholding honour or dignity of the court, to
    avoid sharp or unfair practices. An advocate shall not to
    be immersed in a blind quest of relief for his client. “Law
    is not trade, briefs no merchandise”. His duty is to
    legitimately present his side of the case to assist in the
    administration of justice. The Judges are selected from
    the Bar and purity of the Bench depends on the purity of
    the Bar. Degraded Bar results in degraded Bench. The
    Court has referred to articles and standard of
    processional conduct and etiquettes thus: (SCC pp. 88­
    92, paras 20­28, 30 & 32)
    “20. Warvelle’s Legal Ethics, 2nd Edn. at p. 182 sets
    out the obligation of a lawyer as:
    ‘A lawyer is under obligation to do nothing
    that shall detract from the dignity of the court,
    of which he is himself a sworn officer and
    assistant. He should at all times pay deferential
    respect to the Judge, and scrupulously observe
    the decorum of the courtroom.’
  65. The contempt jurisdiction is not only to protect
    the reputation of the Judge concerned so that he
    can administer justice fearlessly and fairly, but also
    to protect “the fair name of the judiciary”. The
    protection in a manner of speaking, extends even to
    the Registry in the performance of its task and false
    and unfair allegations which seek to impede the
    working of the Registry and thus the administration
    of justice, made with oblique motives cannot be
    tolerated. In such a situation in order to uphold the
    honour and dignity of the institution, the Court has
    to perform the painful duties which we are faced
    with in the present proceedings. Not to do so in the
    words of P.B. Sawant, J. in Ministry of Information &
    41
    Broadcasting, In re [Ministry of Information &
    Broadcasting, In re, (1995) 3 SCC 619] would: (SCC
    p. 635, para 20)
    ‘20. … The present trend unless checked is
    likely to lead to a stage when the system will be
    found wrecked from within before it is wrecked
    from outside. It is for the members of the
    profession to introspect and take the corrective
    steps in time and also spare the courts the
    unpleasant duty. We say no more.’
  66. Now turning to the “Standards of Professional
    Conduct and Etiquette” of the Bar Council of India
    Rules contained in Section I of Chapter II, Part VI,
    the duties of an advocate towards the court have
    been specified. We extract the 4th duty set out as
    under:
    ‘4. An advocate shall use his best efforts to
    restrain and prevent his client from resorting to
    sharp or unfair practices or from doing
    anything in relation to the court, opposing
    counsel or parties which the advocate himself
    ought not to do. An advocate shall refuse to
    represent the client who persists in such
    improper conduct. He shall not consider himself
    a mere mouthpiece of the client, and shall
    exercise his own judgment in the use of
    restrained language in correspondence,
    avoiding scurrilous attacks in pleadings, and
    using intemperate language during arguments
    in court.’
  67. In the aforesaid context the aforesaid principle in
    different words was set out by Crampton, J.
    in R. v. O’ Connell [R. v. O’ Connell, (1844) 7 Irish
    Law Reports 313] as under:
    ‘The advocate is a representative but not a
    delegate. He gives to his client the benefit of his
    learning, his talents and his judgment; but all
    through he never forgets what he owes to
    himself and to others. He will not knowingly
    misstate the law, he will not wilfully misstate
    the facts, though it be to gain the case for his
    client. He will ever bear in mind that if he be an
    advocate of an individual and retained and
    remunerated often inadequately, for valuable
    42
    services, yet he has a prior and perpetual
    retainer on behalf of truth and justice and there
    is no Crown or other licence which in any case
    or for any party or purpose can discharge him
    from that primary and paramount retainer.’
  68. The fundamentals of the profession thus require
    an advocate not to be immersed in a blind quest of
    relief for his client. The dignity of the institution
    cannot be violated in this quest as “law is no trade,
    briefs no merchandise” as per Krishna Iyer, J. in Bar
    Council of Maharashtra v. M.V. Dabholkar [Bar
    Council of Maharashtra v. M.V. Dabholkar, (1976) 2
    SCC 291] (SCC p. 301, para 23).
  69. It is also pertinent to note at this point, the
    illuminating words of Vivian Bose, J. in ‘G’, a Senior
    Advocate of the Supreme Court, In re [‘G’, a Senior
    Advocate of the Supreme Court, In re, AIR 1954 SC
    557 : 1954 Cri LJ 1410] , who elucidated: (AIR p.
    558, para 10)
    ‘10. … To use the language of the army, an
    advocate of this Court is expected at all times to
    comport himself in a manner befitting his
    status as an “officer and a gentleman”.’
  70. It is as far back as in 1925 that an article titled
    “The Lawyer as an Officer of the Court” [Virginia Law
    Review, Vol. 11, No. 4 (Feb 1925) pp. 263­77.]
    published in the Virginia Law Review, lucidly set
    down what is expected from the lawyer which is best
    set out in its own words:
    ‘The duties of the lawyer to the court spring
    directly from the relation that he sustains to the
    court as an officer in the administration of
    justice. The law is not a mere private calling,
    but is a profession which has the distinction of
    being an integral part of the State’s judicial
    system. As an officer of the court the lawyer is,
    therefore, bound to uphold the dignity and
    integrity of the court; to exercise at all times
    respect for the court in both words and actions;
    to present all matters relating to his client’s
    case openly, being careful to avoid any attempt
    43
    to exert private influence upon either the Judge
    or the jury; and to be frank and candid in all
    dealings with the court, “using no deceit,
    imposition or evasion”, as by misreciting
    witnesses or misquoting precedents. “It must
    always be understood”, says Mr Christian
    Doerfler, in an address before the Milwaukee
    County Bar Association, in December 1911,
    “that the profession of law is instituted among
    men for the purpose of aiding the
    administration of justice. A proper
    administration of justice does not mean that a
    lawyer should succeed in winning a lawsuit. It
    means that he should properly bring to the
    attention of the court everything by way of fact
    and law that is available and legitimate for the
    purpose of properly presenting his client’s case.
    His duty as far as his client is concerned is
    simply to legitimately present his side of the
    case. His duty as far as the public is concerned
    and as far as he is an officer of the Court is to
    aid and assist in the administration of justice.”’
    In this connection, the timely words of Mr
    Warvelle may also well be remembered:
    ‘But the lawyer is not alone a
    gentleman; he is a sworn minister of
    justice. His office imposes high moral
    duties and grave responsibilities, and he is
    held to a strict fulfilment of all that these
    matters imply. Interests of vast magnitude
    are entrusted to him; confidence is
    imposed in him; life, liberty and property
    are committed to his care. He must be
    equal to the responsibilities which they
    create, and if he betrays his trust, neglects
    his duties, practices deceit, or panders to
    vice, then the most severe penalty should
    be inflicted and his name stricken from the
    roll.’
    That the lawyer owes a high duty to his
    profession and to his fellow members of the Bar
    is an obvious truth. His profession should be
    his pride, and to preserve its honour pure and
    unsullied should be among his chief concerns.
    “Nothing should be higher in the estimation of
    44
    the advocate”, declares Mr Alexander H.
    Robbins, “next after those sacred relations of
    home and country than his profession. She
    should be to him the “fairest of ten thousand”
    among the institutions of the earth. He must
    stand for her in all places and resent any attack
    on her honour — as he would if the same attack
    were to be made against his own fair name and
    reputation. He should enthrone her in the
    sacred places of his heart, and to her, he
    should offer the incense of constant devotion.
    For she is a jealous mistress.
    Again, it is to be borne in mind that the
    Judges are selected from the ranks of lawyers.
    The purity of the Bench depends upon the
    purity of the Bar.
    ‘The very fact, then, that one of the
    coordinate departments of the Government
    is administered by men selected only from
    one profession gives to that profession a
    certain pre­eminence which calls for a high
    standard of morals as well as intellectual
    attainments. The integrity of the judiciary
    is the safeguard of the nation, but the
    character of the Judges is practically but
    the character of the lawyers. Like begets
    like. A degraded Bar will inevitably produce
    a degraded Bench, and just as certainly
    may we expect to find the highest
    excellence in a judiciary drawn from the
    ranks of an enlightened, learned and moral
    Bar.’
  71. He ends his article in the following words:
    ‘No client, corporate or individual, however
    powerful, nor any cause civil or political, however
    important, is entitled to receive, nor should any
    lawyer render, any service or advice involving
    disloyalty to the law whose ministers we are, or
    disrespect of the judicial office, which we are
    bound to uphold, or corruption of any person or
    persons exercising a public office or private trust,
    or deception or betrayal of the public. When
    rendering any such improper service or advice,
    the lawyer invites and merits stern and just
    condemnation. Correspondingly, he advances the
    45
    honour of his profession and the best interests of
    his client when he renders service or gives advice
    tending to impress upon the client and his
    undertaking exact compliance with the strictest
    principles of moral law. He must also observe
    and advise his client to observe the statute law,
    though until a statute shall have been construed
    and interpreted by competent adjudication, he is
    free and is entitled to advise as to its validity and
    as to what he conscientiously believes to be its
    just meaning and extent. But, above all, a lawyer
    will find his highest honour in a deserved
    reputation for fidelity to private trust and to
    public duty, as an honest man and as a patriotic
    and loyal citizen.’
  72. On examination of the legal principles an
    important issue emerges: what should be the end of
    what the contemnor had started but has culminated
    in an impassioned plea of Mr K.K. Venugopal,
    learned Senior Advocate supported by the
    representatives of the Bar present in court, marking
    their appearance for the contemnor. We are inclined
    to give due consideration to such a plea but are
    unable to persuade ourselves to let the contemnor go
    scot­free, without any consequences. We are thus
    not inclined to proceed further in the contempt
    jurisdiction except to caution the contemnor that
    this should be the first and the last time of such a
    misadventure. But the matter cannot rest only at
    that.

  1. We are of the view that the privilege of being an
    Advocate­on­Record under the rules has clearly been
    abused by the contemnor. The conduct was not
    becoming of an advocate much less an Advocate­onRecord in the Supreme Court.

  1. The aforesaid rule makes it clear that whether
    on the complaint of any person or otherwise, in case
    of misconduct or a conduct unbecoming of an
    Advocate­on­Record, the court may make an order
    removing his name from the register of Advocate­onRecord permanently, or for a specified period. We are
    not referring to the right to practice as an advocate,
    46
    and the name entered on the rolls of any State Bar
    Council, which is a necessary requirement, before a
    person takes the examination of Advocate­onRecord. The present case is clearly one where this
    Court is of the opinion that the conduct of the
    contemnor is unbecoming of an Advocate­on­Record.
    The prerequisites of the proviso are met by the
    reason of the Bench being constituted itself by the
    Chief Justice, and the contemnor being aware of the
    far more serious consequences, which could have
    flowed to him. The learned Senior Counsel
    representing the petitioner has thrown him at the
    mercy of the court. We have substantively accepted
    the request but lesser consequences have been
    imposed on the contemnor.”
  2. With respect to test on judicial system and what constitutes
    Contempt of Court attributing political colours to the judgments, in
    Muthu Krishnan (supra) it was held :­
    “82. It has been seen from time to time that various
    attacks have been made on the judicial system. It has
    become very common to the members of the Bar to go to
    the press/media to criticise the Judges in person and to
    commit sheer contempt by attributing political colours to
    the judgments. It is nothing less than an act of contempt
    of gravest form. Whenever any political matter comes to
    the Court and is decided, either way, political
    insinuations are attributed by unscrupulous
    persons/advocates. Such acts are nothing, but an act of
    denigrating the judiciary itself and destroys the faith of
    the common man which he reposes in the judicial
    system. In case of genuine grievance against any Judge,
    the appropriate process is to lodge a complaint to the
    higher authorities concerned who can take care of the
    situation and it is impermissible to malign the system
    itself by attributing political motives and by making false
    allegations against the judicial system and its
    functionaries. Judges who are attacked are not supposed
    to go to press or media to ventilate their point of view.
    47
  3. Contempt of court is a weapon which has to be used
    sparingly as more is power, same requires more
    responsibility but it does not mean that the court has
    fear of taking action and its repercussions. The hallmark
    of the court is to provide equal and even­handed justice
    and to give an opportunity to each of the system to
    ensure that it improves upon. Unfortunately, some
    advocates feel that they are above the Bar Council due to
    its inaction and they are the only champion of the
    causes. The hunger for cheap publicity is increasing
    which is not permitted by the noble ideals cherished by
    the great doyens of the Bar, they have set by their
    conduct what should be in fact the professional
    etiquettes and ethics which are not capable of being
    defined in a narrow compass. The statutory rules prohibit
    advocates from advertising and in fact to cater to the
    press/media, distorted versions of the court proceedings
    is sheer misconduct and contempt of court which has
    become very common. It is making it more difficult to
    render justice in a fair, impartial and fearless manner
    though the situation is demoralising that something has
    to be done by all concerned to revamp the image of the
    Bar. It is not open to wash dirty linen in public and enter
    in accusation/debates, which tactics are being adopted
    by unscrupulous elements to influence the judgments
    and even to deny justice with ulterior motives. It is for the
    Bar Council and the senior members of the Bar who have
    never forgotten their responsibility to rise to the occasion
    to maintain the independence of the Bar which is so
    supreme and is absolutely necessary for the welfare of
    this country and the vibrant democracy.”
  4. In Tehseen Poonawalla v. Union of India & Another, (2018) 6
    SCC 72, esteemed brother Dr. Justice Chandrachud, who delivered the
    judgment, has noted the misuse of public interest litigation and found
    that it was a serious matter of concern for the judicial process. He
    further found that the Court is flooded with misdirected petitions
    purportedly filed in the public interest which, upon due scrutiny, are
    found to promote a personal, business or political agenda. It was further
    48
    observed that such petitions pose a grave danger to the credibility of the
    judicial process. It was further observed that this has the propensity of
    endangering the credibility of other institutions and undermining public
    faith in democracy and the rule of law. The Court cautioned that the
    agency of the Court is being utilized to settle extra judicial scores. This
    Court held thus:­
    “96. Public interest litigation has developed as a powerful
    tool to espouse the cause of the marginalised and
    oppressed. Indeed, that was the foundation on which
    public interest jurisdiction was judicially recognised in
    situations such as those in Bandhua Mukti
    Morcha v. Union of India [Bandhua Mukti
    Morcha v. Union of India, (1984) 3 SCC 161 : 1984 SCC
    (L&S) 389] . Persons who were unable to seek access to
    the judicial process by reason of their poverty, ignorance
    or illiteracy are faced with a deprivation of fundamental
    human rights. Bonded labour and undertrials (among
    others) belong to that category. The hallmark of a public
    interest petition is that a citizen may approach the court
    to ventilate the grievance of a person or class of persons
    who are unable to pursue their rights. Public interest
    litigation has been entertained by relaxing the rules of
    standing. The essential aspect of the procedure is that
    the person who moves the court has no personal interest
    in the outcome of the proceedings apart from a general
    standing as a citizen before the court. This ensures the
    objectivity of those who pursue the grievance before the
    court. Environmental jurisprudence has developed
    around the rubric of public interest petitions.
    Environmental concerns affect the present generation
    and the future. Principles such as the polluter pays and
    the public trust doctrine have evolved during the
    adjudication of public interest petitions. Over time, public
    interest litigation has become a powerful instrument to
    preserve the rule of law and to ensure the accountability
    of and transparency within structures of governance.
    Public interest litigation is in that sense a valuable
    49
    instrument and jurisdictional tool to promote structural
    due process.
  5. Yet over time, it has been realised that this
    jurisdiction is capable of being and has been brazenly
    misutilised by persons with a personal agenda. At one
    end of that spectrum are those cases where public
    interest petitions are motivated by a desire to seek
    publicity. At the other end of the spectrum are petitions
    which have been instituted at the behest of business or
    political rivals to settle scores behind the facade of a
    public interest litigation. The true face of the litigant
    behind the façade is seldom unravelled. These concerns
    are indeed reflected in the judgment of this Court in State
    of Uttaranchal v. Balwant Singh Chaufal [State of
    Uttaranchal v. Balwant Singh Chaufal, (2010) 3 SCC
    402 : (2010) 2 SCC (Cri) 81 : (2010) 1 SCC (L&S) 807] .
    Underlining these concerns, this Court held thus: (SCC
    p. 453, para 143)
    “143. Unfortunately, of late, it has been noticed that
    such an important jurisdiction which has been
    carefully carved out, created and nurtured with
    great care and caution by the courts, is being
    blatantly abused by filing some petitions with
    oblique motives. We think time has come when
    genuine and bona fide public interest litigation must
    be encouraged whereas frivolous public interest
    litigation should be discouraged. In our considered
    opinion, we have to protect and preserve this
    important jurisdiction in the larger interest of the
    people of this country but we must take effective
    steps to prevent and cure its abuse on the basis of
    monetary and non­monetary directions by the
    courts.”
  6. The misuse of public interest litigation is a serious
    matter of concern for the judicial process. Both this
    Court and the High Courts are flooded with litigations
    and are burdened by arrears. Frivolous or motivated
    petitions, ostensibly invoking the public interest detract
    from the time and attention which courts must devote to
    genuine causes. This Court has a long list of pending
    cases where the personal liberty of citizens is involved.
    Those who await trial or the resolution of appeals against
    50
    orders of conviction have a legitimate expectation of early
    justice. It is a travesty of justice for the resources of the
    legal system to be consumed by an avalanche of
    misdirected petitions purportedly filed in the public
    interest which, upon due scrutiny, are found to promote
    a personal, business or political agenda. This has
    spawned an industry of vested interests in litigation.
    There is a grave danger that if this state of affairs is
    allowed to continue, it would seriously denude the
    efficacy of the judicial system by detracting from the
    ability of the court to devote its time and resources to
    cases which legitimately require attention. Worse still,
    such petitions pose a grave danger to the credibility of
    the judicial process. This has the propensity of
    endangering the credibility of other institutions and
    undermining public faith in democracy and the rule of
    law. This will happen when the agency of the court is
    utilised to settle extra­judicial scores. Business rivalries
    have to be resolved in a competitive market for goods and
    services. Political rivalries have to be resolved in the great
    hall of democracy when the electorate votes its
    representatives in and out of office. Courts resolve
    disputes about legal rights and entitlements. Courts
    protect the rule of law. There is a danger that the judicial
    process will be reduced to a charade, if disputes beyond
    the ken of legal parameters occupy the judicial space.”
  7. Further attack was made on the formation of the Bench, and
    recusal was sought of the certain Judges who were part of the Bench, as
    they were originally from Bombay High Court. It was observed that the
    conduct of the petitioner and the intervenor is scandalizing the process
    of the Court and would prima facie constitute criminal contempt.
    However, on a dispassionate view of the matter, the Court did not initiate
    proceedings by way of criminal contempt as that would amount to
    unequal battle. While considering the submissions made by Shri
    51
    Prashant Bhushan seeking recusal and casting aspersions upon the
    judicial officers, it was observed thus:­
    “101. … If this were to be the test, it is rather ironical
    that the petitioners had instituted proceedings before the
    Bombay High Court each of whose Judges were expected
    to be faced with the same situation. We informed Mr
    Bhushan that a decision as to whether a Judge should
    hear a case is a matter of conscience for the Judge. There
    is absolutely no ground or basis to recuse. Judges of the
    High Court hear intra­court appeals against orders of
    their own colleagues. References are made to larger
    Benches when there are differences of view. Judges of the
    Supreme Court hear appeals arising from judgments
    rendered by Judges of the High Courts in which they
    served, either as Judges or on appointments as Chief
    Justices. Maintaining institutional civilities between or
    towards Judges is distinct from the fiercely independent
    role of the Judge as adjudicator. We emphatically clarify
    that on the well­settled parameters which hold the field,
    there is no reason for any member of the present Bench
    to recuse from the hearing. While it is simple for a Judge
    faced with these kinds of wanton attacks to withdraw
    from a case, doing so would amount to an abdication of
    duty. There are higher values which guide our conduct.
    Though Mr Bhushan ultimately made it clear that he is
    not filing an application for recusal — and none has been
    filed — we have recorded what transpired to express our
    sense of anguish at the manner in which these
    proceedings have been conducted. Serious attacks have
    been made on the credibility of two Judges of the Bombay
    High Court. The conduct of the petitioners and the
    intervenors scandalises the process of the court and
    prima facie constitutes criminal contempt. However, on a
    dispassionate view of the matter, we have chosen not to
    initiate proceedings by way of criminal contempt if only
    not to give an impression that the litigants and the
    lawyers appearing for them have been subjected to an
    unequal battle with the authority of law. We rest in the
    hope that the Bar of the nation is resilient to withstand
    such attempts on the judiciary. The judiciary must
    continue to perform its duty even if it is not to be
    palatable to some. The strength of the judicial process
    lies not in the fear of a coercive law of contempt. The
    52
    credibility of the judicial process is based on its moral
    authority. It is with that firm belief that we have not
    invoked the jurisdiction in contempt.”
  8. In Kamini Jaiswal v. Union of India & Anr. (2018) 1 SCC 156,
    the authority of the Chief Justice to constitute the Benches, was
    questioned. Again, in reply, averments have been made with respect to
    the constitution of the Benches by the Chief Justice. The question was
    dealt with in Kamini Jaiswal (supra), in which Shri Prashant Bhushan
    himself appeared. Reliance was placed on D.C. Saxena v. Chief Justice
    of India, (1996) 5 SCC 216, in which it was observed thus:­
    “81. It is the duty of the Chief Justice of a court to
    assign judicial work to his brother Judges. It was,
    therefore, the duty of the respondent to assign the second
    writ petition to a Bench to hear it. By doing so he did not,
    as is alleged, become a Judge in his own cause. It is
    contempt to imply, as the alleged contemnor does, that
    the respondent would assign it to a Bench which would
    not pass an order adverse to him. It is also contempt to
    imply that Judges would be so amenable. To plead that
    the Bench that heard the second writ petition could not
    have heard it and, therefore, could not have dismissed it
    and that it is deemed to be still pending is to add to the
    contempt. These allegations are also aimed at bringing
    the administration of justice into disrepute.”
  9. It was also observed in Kamini Jaiswal (supra) thus:­
    “30. Though it is true, that none of us is above law; no
    person in the higher echelons is above the law but, at the
    same time, it is the duty of both the Bar and the Bench,
    to protect the dignity of the entire judicial system. We
    find that filing of such petitions and the zest, with which
    it is pursued, has brought the entire system in the last
    few days to unrest. An effort was made to create ripples
    53
    in this Court; serious and unwanted shadow of doubt has
    been created for no good reason whatsoever by way of
    filing the petition which was wholly scandalous and
    ought not to have been filed in such a method and
    manner. It is against the settled proposition of law.
    Ultimately after arguing at length, at the end, it was
    submitted by the petitioner and her counsel that they
    were not aiming at any individual. If that was not so,
    unfounded allegations ought not to have been made
    against the system and that too against the Hon’ble Chief
    Justice of this country. In case majesty of our judicial
    system has to survive, such kind of petitions should not
    have been preferred that too against the settled
    proposition of law laid down by this Court in the
    aforesaid decisions of this Court in D.C. Saxena [D.C.
    Saxena v. Chief Justice of India, (1996) 5 SCC 216]
    and K. Veeraswami [K. Veeraswami v. Union of India,
    (1991) 3 SCC 655 : 1991 SCC (Cri) 734].”
  10. In view of the settled legal position, as stated hereinabove, we are of
    the considered opinion that 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.
  11. As already discussed hereinabove, one of the attending
    circumstances which is required to be taken into consideration is the
    person who makes the statement. 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 such tweets which are capable of shaking the
    54
    confidence of general public and further making wild allegations in the
    affidavit thereby further attempting to malign the said institution. Such
    an act by responsible person who is part of this system cannot be
    ignored or overlooked.
  12. We find no justification to make such a remark/tweet, particularly
    when it is made by a lawyer with 35 years standing like Shri Prashant
    Bhushan, who is an officer of the Court and advocates enjoy equal
    dignity in the system. In spite of learned Attorney General’s insistence
    that the averments made in the defence should be withdrawn and regret
    should be submitted, Dr. Dhavan, learned senior counsel, stated that the
    contemnor is not ready to withdraw the defence taken in the reply. That
    further makes it clear that while insisting with the unjustifiable defence
    and insistence to go with it makes the entire episode the one which
    cannot be ignored.
  13. The tweet has been made by the lawyer who has the standing of 35
    years and who is involved in several public interest litigations. However,
    merely because a lawyer is involved in the filing of the public interest
    litigation for the public good it does not arm him to harm the very system
    of which he is a part. Though expectation from an ordinary citizen may
    be different, the duties and expectations that are expected from a lawyer
    of long standing are on higher side. An advocate cannot forget his ethical
    55
    duty and responsibility and cannot denigrate the very system of which
    he/she is an integral part. Fair criticism is not to be silenced, but an
    advocate has to remind himself/herself, where he/she crosses the zone
    of propriety, and the Court cannot continuously ignore it, and the system
    cannot be made to suffer. When the criticism turns into malicious and
    scandalous allegations thereby tending to undermine the confidence of
    the public and the institution as a whole, such a criticism cannot be
    ignored.
    In Ref: Statement in Press/Media
  14. Dr. Dhavan, learned senior counsel, next argued that we should
    consider the various statements made by some of the retired Judges,
    journalists, and others. We are not referring to the names as we do not
    deem it appropriate to refer those names. The argument is founded on
    the fact that the Court should be influenced by the opinion expressed in
    the newspapers and other media, when the Court is hearing a matter.
    There are two facets of the argument. Firstly, whether the Court should
    be moved by the statement published in the newspaper and secondly,
    whether, in a sub judice matters, such statements are permissible to be
    made. We put a question to ourselves, as to whether the Court can be
    guided by such opinions expressed on the public platform and as to
    whether the Court while exercising its judicial duties render its decision
    56
    on the basis of the trial made by the media and public opinion. Answer to
    both the questions are found firmly in the negative. The Court cannot
    abdicate its duty and has to be uninfluenced by the statements
    published in various articles published in the media and opinions
    expressed therein. It has to decide the case uninfluenced by such
    opinions.
  15. C.J. Miller in Contempt of Court, Third Edition, dealt with the
    similar issue referring to the decision in Attorney­General v. Times
    Newspaper Ltd., (1973) 3 All ER 54, discussed the aspect thus:­
    “7.106 This view was followed in the Australian case of Ex
    p. Attorney­General: Re Truth and Sportsman Ltd. [1958 61
    SR (NSW) 484] Here a newspaper described a driver who had
    been convicted after his car had knocked over and killed two
    young children as a ‘monster’, adding that ‘it was one of the
    most inhumane road killings on record in New South Wales’.
    The Supreme Court of New South Wales justified the
    imposition of a fine for contempt on the ground, inter alia,
    that:
    If comment and criticism of the nature dealt with in
    these proceedings were permitted while an appeal is
    pending, prejudice would undoubtedly be likely to be
    created, and in any event the court could be seriously
    embarrassed
    The decision in the Delbert­Evans case was cited with
    evident approval in Attorney­General v. Crisp and ‘Truth’ (NZ)
    Ltd. [1952 NZLR 84 (NZ Sup. Ct.). The defendants had
    described one Horry as ‘an unspeakable monster’ and a ‘suave
    black­hearted fiend’ when the time for appealing against a
    conviction for murder had not expired. In holding that a
    contempt had been committed, Fair J said that such comment
    tended ‘seriously to embarrass the fair and impartial
    administration of justice’.”
    57
  16. It was further observed that there is a substantial risk of serious
    prejudice through an effect upon the mind of an appellate judge by such
    publication. It was also emphasized that an act of making comments
    which are intended or even likely to influence a judge necessarily amount
    to a contempt.
  17. Dr. Dhavan, learned senior counsel, has submitted that this Court
    will be criticized, in case it inflicts any punishment upon Shri Prashant
    Bhushan. We are unmoved by this submission. While exercising our
    judicial functions, we cannot take into consideration whether we will be
    praised or criticized for the judgment which we render. We are required
    to decide the cases on the basis of the law as it correctly stands, in our
    perception and understanding. We are not expected to decide the matter
    on the basis as to whether there will be criticism of the judgment or not.
    We have to be always ready for its fair criticism.
  18. C.J. Miller, in Contempt of Court, Third Edition, has referred
    Lord Parker CJ thus:­
    “7.118 An alternative way of justifying the imposition of
    liability in such cases as Attorney­General v. Tonks [1939 NZLR
    533] is to categorize the publication as an attempt to ‘dictate’ a
    decision to an appellate court. As such, it may be viewed as a
    contempt on the basis of an argument that a person who acts
    with the intention of interfering with the administration of
    justice will commit the offence, even though there is absolutely
    no likelihood of his achieving this objective. The point is
    discussed in more detail elsewhere. Here, it is sufficient to note
    that Lord Parker CJ agreed in Duffy, ex p. Nash that a
    58
    contempt may be committed where ‘the article in question
    formed part of a deliberate campaign to influence the decision
    of the appellate tribunal’. [1960 2 QB 188] Hence, there is
    common law authority suggesting that such a campaign is
    unlawful in this country.”
  19. This Court has also considered the effect on the cases by pressure
    created by the media in R.K. Anand v. Registrar, Delhi High Court
    (2009) 8 SCC 106 and Reliance Petrochemicals Ltd. v. Proprietors of
    Indian Express News­Papers Bombay Pvt. Ltd., and others, (1988) 4
    SCC 592.
  20. In the case of R.K. Anand (supra), the Court considered the
    concept of trial by media in a case which was sub judice. While
    considering the same, it was held thus:­
    “Reporting of pending trial
  21. We are also unable to agree with the submission
    made by Mr P.P. Rao that the TV channel should have
    carried out the stings only after obtaining the permission
    of the trial court or the Chief Justice of the Delhi High
    Court and should have submitted the sting materials to
    the court before its telecast. Such a course would not be
    an exercise in journalism but in that case the media
    would be acting as some sort of special vigilance agency
    for the court. On little consideration the idea appears to
    be quite repugnant both from the points of view of the
    court and the media.
  22. It would be a sad day for the court to employ the
    media for setting its own house in order; and media too
    would certainly not relish the role of being the snoopers
    for the court. Moreover, to insist that a report concerning
    a pending trial may be published or a sting operation
    concerning a trial may be done only subject to the prior
    consent and permission of the court would tantamount to
    pre­censorship of reporting of court proceedings. And this
    59
    would be plainly an infraction of the media’s right of
    freedom of speech and expression guaranteed under
    Article 19(1) of the Constitution.
  23. This is, however, not to say that media is free to
    publish any kind of report concerning a sub judice
    matter or to do a sting on some matter concerning a
    pending trial in any manner they please. The legal
    parameter within which a report or comment on a sub
    judice matter can be made is well defined and any action
    in breach of the legal bounds would invite consequences.
    Compared to normal reporting, a sting operation is an
    incalculably more risky and dangerous thing to do. A
    sting is based on deception and, therefore, it would
    attract the legal restrictions with far greater stringency
    and any infraction would invite more severe
    punishment.”
  24. In State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8
    SCC 386, the concept of trial by press, electronic media and public
    agitation was considered and the Court held thus:­
    “37. We agree with the High Court that a great harm had
    been caused to the girl by unnecessary publicity and
    taking out of morcha by the public. Even the case had to
    be transferred from Kolhapur to Satara under the orders
    of this Court. There is procedure established by law
    governing the conduct of trial of a person accused of an
    offence. A trial by press, electronic media or public
    agitation is the very antithesis of rule of law. It can well
    lead to miscarriage of justice. …”
  25. In Santosh Kumar Satishbhushan Bariyar v. State of
    Maharashtra, (2009) 6 SCC 498, question of public opinion in capital
    sentencing was considered. It was observed that perception of public is
    60
    extraneous to conviction as also sentencing. Relevant paragraphs are as
    under:­
    “2(F) Public opinion in capital sentencing
  26. It is also to be pointed out that public opinion is
    difficult to fit in the rarest of rare matrix. People’s
    perception of crime is neither an objective circumstance
    relating to crime nor to the criminal. Perception of public
    is extraneous to conviction as also sentencing, at least in
    capital sentencing according to the mandate of Bachan
    Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] .
    xxx xxx
  27. Public opinion may also run counter to the rule of law
    and constitutionalism. Bhagalpur Blinding case [Ed.: The
    reference seems to be to Khatri (II) v. State of Bihar,
    (1981) 1 SCC 627 : 1981 SCC (Cri) 228] or the recent
    spate of attacks on right to trial of the accused
    in Bombay Bomb Blast case [Ed.: The reference seems to
    be to Sanjay Dutt v. State (II), (1994) 5 SCC 410 : 1994
    SCC (Cri) 1433] are recent examples. We are also not
    oblivious to the danger of capital sentencing becoming a
    spectacle in media. If media trial is a possibility,
    sentencing by media cannot be ruled out.
  28. Andrew Ashworth, a leading academic in the field of
    sentencing, who has been at the centre of sentencing
    reforms in the UK, educates us of the problems in
    factoring in public opinion in the sentencing. He (with
    Michael Hough), observes in an article, “Sentencing and
    the Climate of Opinion” (1996 Crim. L.Rev.):
    “The views of sentencing held by people outside the
    criminal justice system—‘the general public’—will
    always be important even if they should not be
    determinative in court. Unfortunately, the concept of
    public opinion in relation to sentencing practices is
    often employed in a superficial or simplistic way. In
    this short article we have identified two major
    difficulties with the use of the concept. First,
    members of the public have insufficient knowledge of
    actual sentencing practices. Second, there is a
    significant but much neglected distinction between
    people’s sweeping impressions of sentencing and
    their views in relation to particular cases of which
    61
    they know the facts. When it is proclaimed that the
    public think the courts are too lenient, both these
    difficulties are usually suppressed.
    To construct sentencing policy on this flawed and
    partial notion of public opinion is irresponsible.
    Certainly, the argument is hard to resist that public
    confidence in the law must be maintained. It is also
    hard to resist the proposition that public confidence
    in sentencing is low and probably falling. However,
    since the causes of this lie not in sentencing practice
    but in misinformation and misunderstanding, and
    (arguably) in factors only distantly related to
    criminal justice, ratcheting up the sentencing tariff
    is hardly a rational way of regaining public
    confidence.
    This is not to deny that there is political capital to be
    made, at least in the short term, by espousing
    sentencing policies which have the trappings of
    tough, decisive action. However, the underlying
    source of public cynicism will not have been
    addressed; and once politicians embark on this
    route, they may be committing themselves long term
    to a treadmill of toughness, ‘decisiveness’, and high
    public expenditure. The political costs of
    withdrawing from tough policies, once embarked on,
    may be too high for politicians of any hue to
    contemplate. The United States serves as an
    example.
    If the source of falling public confidence in
    sentencing lies in lack of knowledge and
    understanding, the obvious corrective policy is to
    explain and to educate, rather than to adapt
    sentencing policy to fit a flawed conception of public
    opinion. But who should be the target of such
    explanation and education? We have serious doubts
    whether attempts to reach the ordinary citizen
    directly will have any impact at all. On the other
    hand, we think it feasible, within limits, to educate
    those who shape public opinion. Newspaper and
    television journalists, for example, responded well to
    the initiatives in the 1980s intended to curb the
    reporting of crime in ways that needlessly fuelled
    fear of crime. A similar initiative should now be
    mounted in relation to sentencing.””
    62
  29. In Reliance Petrochemicals Ltd. (supra), it was observed that
    process of due course of administration of justice must remain
    unimpaired. Public interest demands that there should be no
    interference with the judicial process, and the effect of the judicial
    decision should not be pre­empted or circumvented by public agitation or
    publications.
  30. The Judges have to be impartial towards the crime of voice, as
    observed in Dharmkosh­43 (Narad 36­4­5) thus:­
  31. Meaning thereby, Judges have to be well versed in the laws and
    impartial towards friends and foes. It emphasizes that the Judges
    should be impartial towards friends and foes. In our opinion, the judicial
    decision cannot be influenced by the opinions expressed in the media.
  32. 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, Shri Prashant Bhushan talked to the press and
    media. The statement which was made by Shri Prashant Bhushan,
    pursuant to the order dated 20.08.2020, was also published well in
    63
    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 of the Court is
    being tested for no good reasons by resorting to unscrupulous methods.
  33. Dr. Dhavan, learned senior counsel, fairly stated that in a sub
    judice matter, it is not open to the lawyer or litigant to go to press or
    media and make the statement. However, it appears that this good
    sense and counsel by a senior lawyer of long standing has not prevailed
    upon the contemnor. Dr. Dhavan, also stated that statement should not
    have been released by Shri Prashant Bhushan to press or media. It was
    64
    impermissible for him to do so. We put on record our appreciation for
    the fairness of Dr. Dhavan, learned senior counsel. He has asked us to
    lay down guidelines for future guidance to the members of the Bar and
    the litigants on such aspects.
    In Ref: Factors for Sentencing
  34. Dr. Dhavan, learned senior counsel, submitted that relevant factors
    required to be taken into consideration for sentencing are the offender,
    the offence and statutory or other defences. He has also referred to the
    guidelines issued in the case in Re: S. Mulgaokar (supra).
  35. With respect to the offender, as stated by Shri Prashant Bhushan
    in his affidavit that he is a lawyer having of 35 years of standing and has
    also pursued various public interest litigations. No doubt that this
    would be a relevant factor while balancing the decision to be taken by the
    Court. However, at the same time, the uncalled statements made in the
    affidavit for pursuing truth as a defence can also not be ignored. Since,
    in 2009 contempt petition various questions have been framed by this
    Court which will have to be answered, the pendency of the said contempt
    petition cannot be considered to be a factor in reflecting on the question
    of sentence in the present matter. Even the present Attorney General
    had filed a contempt case i.e. Contempt Petition (Crl) No.1/2019 (titled
    65
    The Attorney General of India v. Prashant Bhushan), which is pending
    before this Court.
  36. Dr. Dhavan, learned senior counsel, argued that offence is also a
    factor that is to be taken into consideration while imposing the
    punishment. He argued that offence must be clear without ambiguity,
    and the potential offender must understand where and when he is guilty
    of the offence. He submitted that scandalising the Court is notoriously
    vague, as observed in Shreya Singhal (supra) and that the Court has to
    be careful in exercising the jurisdiction, as held in Baradakanta Mishra
    (supra).
  37. In respect to the submission made by Dr. Dhavan, learned senior
    counsel, with regard to the inconsistency between the judgments of this
    Court in E.M. Sankaran Namboodripad (supra) and P.N. Duda (supra)
    is concerned, we are not concerned with the final outcome of the decision
    in these two cases. However, it could be seen that 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. With regard to the reference made by Dr.
    Dhavan, learned senior counsel, regarding the judgment in Re: Times of
    66
    India and Hindu, (2013) Cr.L.J. 932, to which one of us (Mishra, J.) was
    a party is concerned, the reliance on the said judgment, in our view, is
    misplaced. Firstly, applying the test as to who is the person who makes
    the statement, it could be seen that in the said case the statement was
    made by a politician, however, in the present case, the statement is made
    by a lawyer who has a standing of more than 35 years. Secondly, in the
    said case the statement was not made specifically against anyone but
    was a general statement, in the present case the statement is made
    against the past four Chief Justices and the Judges, who have occupied
    the office of this Court for last six years.
  38. Dr. Dhavan, learned senior counsel, also argued that contempt
    jurisdiction is vague and colonial. For this, he has relied upon Justice
    Wilmot’s judgment in R. v. Almon, (1965) Wilm 243, Mcleod v. St.
    Aubyn, (1899) AC 549 (PC), R. v. Gary, (1900) 2 QB 36 DC, R. v.
    Colsely, 9 May 1931 DC, Dhoorika v. Director of Public
    Prosecutions (Commonwealth Lawyers’ Association Intervening),
    (2015) AC 875. He urged that in the last century, this jurisdiction has
    been used only for 31 years and never after that in England since 1931.
  39. He has also referred R. v. Blackburn, (1968) 1 ALL ER 763,
    wherein Lord Denning refused to convict or sentence for contempt. He
    67
    also referred that in the Spycatcher affair, the Daily Mirror had a banner
    heading stating in bold “YOU FOOLS” and put the picture of the Law
    Lords upside down, and no contempt was initiated. Further, in 2019, in
    the Parliament suspension case, the English Supreme Court Judges were
    called ‘enemies of democracy,’ but no action was taken.
  40. The submissions that are sought to be made in effect amount to
    reviewing the view taken by us in the convicting judgment. We need not
    again consider the submissions made by Dr. Dhavan, learned senior
    counsel, inasmuch as all his submissions have been elaborately
    considered in the convicting judgment. Taking into consideration the
    view taken by us in the convicting judgment we cannot accede to the
    request of Dr. Dhavan, learned senior counsel that the decision dated
    14.08.2020 should be withdrawn or recalled.
  41. We find no force in the submission raised to recall the judgment,
    suo motu otherwise. We have exercised the jurisdiction with full
    circumspection, care, and precautions. We find no merits in the
    submission. While sentencing, we have to act with objectivity in relation
    to the person and the actual effect, as held in Murray & Co. v. Ashok
    Kumar Newatia and Another, (2000) 2 SCC 367.
    68
  42. Dr. Dhavan, learned senior counsel, also argued that there is no
    conflict between the constitutional jurisdiction under Articles 129 and
    215 of the Constitution and the provisions of the Contempt of Courts
    Act, 1971. For this purpose, he has relied upon Pallav Sheth (supra), in
    which it was observed:­
    “30. There can be no doubt that both this Court and High
    Courts are courts of record and the Constitution has given
    them the powers to punish for contempt. The decisions of this
    Court clearly show that this power cannot be abrogated or
    stultified. But if the power under Article 129 and Article 215 is
    absolute, can there by any legislation indicating the manner
    and to the extent that the power can be exercised? If there is
    any provision of the law which stultifies or abrogates the power
    under Article 129 and/or Article 215, there can be little doubt
    that such law would not be regarded as having been validly
    enacted. It, however, appears to us that providing for the
    quantum of punishment or what may or may not be regarded
    as acts of contempt or even providing for a period of limitation
    for initiating proceedings for contempt cannot be taken to be a
    provision which abrogates or stultifies the contempt
    jurisdiction under Article 129 or Article 215 of the
    Constitution.”
  43. The case of Maheshwari Peri & others v. High Court of
    Judicature at Allahabad, (2016) 14 SCC 251, was also referred. The
    relevant paragraph is as under:­
    “10. ….. Be it an action initiated for contempt under Article
    129 of the Constitution of India by the Supreme Court or
    under Article 215 of the Constitution of India by the High
    Court, it is now settled law that the prosecution procedure
    should be in consonance with the Act, as held by this Court in
    Pallav Seth.”
    69
  44. We find that this question has been dealt with in the convicting
    judgment and what is the procedure under Articles 129 and 215 of the
    Constitution has been considered In Re: Vijay Kurle and Ors., 2020
    SCC Online SC 407. We will not repeat them again as they are referred
    to in the convicting judgment.
  45. Dr. Dhavan, learned senior counsel, urged that a copy of the
    complaint/petition filed by Shri Mahek Maheshwari, was not made
    available to the contemnor. He has submitted that said Shri Mahek
    Maheshwari was associated for some time with some political party. He
    further submitted that as such the person who filed a petition was a
    relevant question required to be considered by this Court. He has also
    relied upon Rule 6(2) of the Rules to Regulate Proceedings for Contempt
    of the Supreme Court, 1975 read with Article 145 of the Constitution,
    which provided that a copy of the complaint must be supplied to the
    contemnor.
  46. No doubt that though initially the said Mr. Mahek Maheshwari had
    filed a petition in this Court which was placed on the administrative side
    of this Court, this Court had decided to initiate suo motu proceedings.
    Only that part of the petition i.e. the first tweet made by the contemnor
    was one of the basis for taking action against the contemnor. The
    relevant tweet has specifically been mentioned in our order dated
    70
    22.07.2020. No other part of the petition was taken into consideration
    for proceeding against the contemnor. Insofar as the second tweet is
    concerned, which was on the basis of the report published in the Time of
    India dated 22.07.2020, we had decided to take suo motu cognizance of
    the same. Thus, it will not be of any relevance as to whether a copy of
    the petition filed by Shri Mahek Maheshwari was supplied or not. The
    suo motu cognizance was taken only on the basis of the said two tweets,
    which were specifically quoted in our order dated 22.07.2020. As held in
    catena of cases, the only requirement is that the Court must follow
    principles of natural justice. The Court specifically made aware the
    contemnor about the basis on which the Court took suo motu
    cognizance. Not only that but the contemnor understood the basis on
    which the Court was proceedings, as is evident from the bulky affidavit
    in reply filed by him. Contention in this respect, in our view is without
    substance.
  47. Argument raised by Dr. Dhavan that Free Speech is part of Article
    19(1)(a) of the Constitution cannot be disputed. However, we are not
    convinced that while exercising power under Article 129 of the
    Constitution, we are interfering with the rights under Article 19(1)(a) of
    the Constitution. Supreme Court being a court of record can punish for
    contempt. He also argued about the Freedom of Press, which is beyond
    71
    doubt an important aspect of democracy. Free Speech is essential to
    democracy can also not be disputed, but it cannot denigrate one of the
    institutions of the democracy. As observed in Maneka Gandhi v. Union
    of India and Another, (1978) 1 SCC 248, 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 as was held in Secretary, Ministry of Information and
    Broadcasting, Government of India & Ors. v. Cricket Association of
    Bengal & Ors., (1995) 2 SCC 161. 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 the contention raised by Dr.
    Dhavan, learned senior counsel, 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
    72
    under Article 19(1)(a) and the restrictions under Article 19(2) of the
    Constitution. No doubt that, as urged by Dr. Dhavan, freedom of press
    is also an important aspect in a democracy. We 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.
  48. Dr. Dhavan, learned senior counsel, also argued that as per Section
    3(22) of the General Clauses Act, things shall be considered to be done in
    good faith, in fact, if done honestly, whether it is done negligently or not.
    Dr. Dhavan, submitted 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.
    Reliance has been placed on Reynolds v. Times Newspapers Ltd. and
    Others, (1999)4 All ER 609, it has been observed that the true test is
    whether the opinion, however exaggerated, obstinate or prejudiced, was
    73
    honestly held by the person expressing it. 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 he belongs, can be made
    honestly or in good faith.
  49. Dr. Dhavan, learned senior counsel, submitted that applying the
    doctrine of proportionality the balance will have to tilt in favour of the
    fundamental rights as against restrictions. He argued that
    reasonableness means substantive and procedural reasonableness and
    imports proportionality, and he has placed reliance on 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, State of Andhra
    Pradesh & Ors. v. McDowell and Co. & Ors., (1996) 3 SCC 709, Union
    of India (UOI) & Ors. v. G. Ganayutham (Dead) by Lrs., (1997) 7 SCC
    463, Teri Oat Estates (P) Ltd. v. U.T. Chandigarh & Ors., (2004) 2 SCC
    130, Om Kumar & Ors. v. Union of India (UOI), (2001) 2 SCC 386,
    Anuj Garg & Ors. v. Hotel Association of India & Ors., (2008) 3 SCC 1
    and Chairman, All India Railway Rec. Board & Ors. v. K. Shyam
    74
    Kumar & Ors., (2010) 6 SCC 614. Thus, he has submitted that the
    conviction be recalled, and no sentence be imposed. We have weighed
    the pros and cons, rights, and limitations and thereafter rendered a
    considered decision regarding conviction, and as discussed in this order,
    on consideration of proportionality we find no room to entertain this
    submission. The same is repelled. Shri Dhavan, learned senior
    counsel, also relied upon the following statement in Andre Paul Terence
    Ambard v. The Attorney General of Trinidad and Tobago, (1936) All
    ER 704, the following passage has been relied upon:­
    “… no wrong is committed by any member of the public
    who exercises the ordinary right of criticizing in good faith
    in private or public the public act done in the seat of
    justice. The path of criticism is a public way: the
    wrongheaded are permitted to err therein: provided that
    members of the public abstain from imputing improper
    motives to those taking part in the administration of
    justice, and are genuinely exercising a right of criticism
    and not acting in malice or attempting to impair the
    administration of justice, they are immune. Justice is not
    a cloistered virtue: she must be allowed to suffer the
    scrutiny and respectful even though outspoken
    comments of ordinary men.”
    (Emphasis supplied)
  50. There can be no doubt about the principle that any member of the
    public has a right to criticize in good faith in private or public, the public
    act done in the seat of justice. However, the members of the public are
    required to abstain from imputing improper motives to those taking part
    in the administration of justice. Right to fair criticism is contrasted
    75
    against acting in malice or attempting to bring down the reputation of
    the institution of administration of justice. We find that even after
    recording the judgment of conviction, no remorse has been expressed by
    the contemnor, nor apology has been submitted. It was argued that
    apology is being coerced from the contemnor. In the supplementary
    statement dated 24.08.2020, Shri Prashant Bhushan has stated that “At
    the hearing the court asked me to take 2­3 days to reconsider the
    statement I made in the court.” However, the order specifically states,
    “We have given time to the contemnor to submit unconditional apology, if
    he so desires.” We find that by now it is a settled position of law that
    the Court speaks through its judgments and orders. Virtual exchange
    during the course of the proceedings is not what is the order of the Court
    but it could be a tentative expression of that exchange during the course
    of hearing. However, ultimately what is final is the order of the Court,
    which has the seal of it. It would have been better if the aforesaid part
    was not mentioned in the supplementary statement, but we cannot stop
    anybody from making any statement, but we consider it not to be a
    proper statement as to what should have been the words in the order of
    the Court. We have not coerced the contemnor to submit the apology
    and have clearly mentioned that time was given to submit unconditional
    apology, “if he so desires”. It was his decision to submit it or not.
    76
    However, he has chosen to submit a supplementary statement. Thus,
    the submission raised by Dr. Dhavan, learned senior counsel, as to
    coercion is without substance. The desire of learned Attorney General
    that he/contemnor should withdraw the allegation and express regret
    has also gone unheeded.
  51. Dr. Dhavan, has also referred to the observation of Krishna Iyer, J.,
    in Re: S. Mulgaokar (supra). We have considered the same in the
    convicting judgment and followed the principle laid down therein. No
    doubt that while exercising the right of freedom of speech the fair
    criticism of the system is welcome and the Judges cannot be hyper
    sensitive even when distortions and criticism overstep the limit.
    However, the same cannot be stretched to permit to make malicious and
    scandalous statement. The Court has to act only in the case where the
    attack is beyond a permissible limit, the strong arm of the law strikes a
    blow on him who challenges the supremacy of the rule of law by fouling
    its source and stream.
  52. We have applied the aforesaid guidelines and standards.
  53. Learned Attorney General submitted that the Court should exhibit
    magnanimity. Dr. Dhavan, learned senior counsel, invoked the
    statesmanship from this Court. Learned Attorney General stated that if
    77
    there is an expression of regret and if the affidavit is withdrawn, perhaps
    a quietus can be given to the proceeding. However, the contemnor
    declined to do so. Learned Attorney General also submitted that in
    Arundhati Roy’s case, it was held that “our shoulders are broad enough
    to shrug off comments against it.” No doubt about it, our approach has
    to be like one stated by the learned Attorney General. In spite of learned
    Attorney General appealing that it was not too late for the contemnor to
    express regret as he did in the other case regarding contempt filed by
    learned Attorney General and one more chance be given, but that was
    virtually declined flatly by Dr. Dhavan, learned senior counsel, in the
    presence of the contemnor. It is apparent that in both the statements
    made by the contemnor, he is sticking to his ground, and he is not at all
    realizing that any wrong was done by him to the institution. At the same
    time, he has expressed the faith in the institution and he has submitted
    that an apology cannot be a mere incantation and an apology has to be
    as the Court itself put be sincerely made. He has further stated that he
    made the statement bona fide and with truthful details which had not
    been dealt with by the Court. He is insistent and has no remorse about
    what he has stated in the defence. He has not gone by the advice of the
    learned Attorney General to withdraw the same and to take if off the
    record. Shri Prashant Bhushan being a person well versed with law
    78
    ought to have given due weightage to the advice rendered by the learned
    Attorney General who has pleaded not to sentence him, at the same time
    maintained that the statements made in the affidavit in reply could not
    be taken into consideration for considering the case of Mr. Prashant
    Bhushan of truth as a defence. When senior­most functionary in the
    legal profession of the stature of the learned Attorney General was giving
    an advice to express regret and withdraw the wild allegations a lawyer of
    such a long standing was expected to give due respect to it. Even our
    request made to him has gone in vain. Thus, we feel that the simple
    issuance of warning is not going to suffice in the instant case.
  54. It was argued by Dr. Dhavan, learned senior counsel, that in case
    the contemnor is sent to the imprisonment, he will attain martyrdom,
    and he also should not be debarred from the practice. He further stated
    that the Court could not pass an order debarring the contemnor from
    practicing unless a prior notice was issued to him and an opportunity of
    hearing was given in that regard.
  55. Pursuant to the conviction in a criminal case, the Bar Council of
    India can suspend the enrolment, if it so desires. It is also open to this
    Court to debar from practicing in a Court, as held in Supreme Court Bar
    Association (supra). We are not afraid of sentencing the contemnor
    either with imprisonment or from debarring him from the practice. His
    79
    conduct reflects adamance and ego, which has no place to exist in the
    system of administration of justice and in noble profession, and no
    remorse is shown for the harm done to the institution to which he
    belongs. At the same time, we cannot retaliate merely because the
    contemnor has made a statement that he is neither invoking the
    magnanimity or the mercy of this Court and he is ready to submit to the
    penalty that can be lawfully be inflicted upon him for what the Court has
    determined to be an offence. He has even invoked the Father of the
    Nation, Mahatma Gandhi’s statement, which was made by Mahatma
    Gandhi at the conclusion of the trial against him.
  56. The Court, from the very beginning, was desirous of giving quietus
    to this matter. Directly or indirectly, the contemnor was persuaded to
    end this matter by tendering an apology and save the grace of the
    institution as well as the individual, who is an officer of the Court.
    However, for the reasons best known to him he has neither shown regret
    in spite of our persuasion or the advice of the learned Attorney General.
    Thus, we have to consider imposing an appropriate sentence upon him.
  57. Duly balancing the factors urged by Dr. Dhavan as to the offender,
    offence, the convicting judgment and the defence taken we have to decide
    the question of sentence. In our considered view, the act committed by
    the contemnor is a very serious one. He has attempted to denigrate the
    80
    reputation of the institution of administration of justice of which he
    himself is a part. At the cost of repetition, we have to state that the faith
    of the citizens of the country in the institution of justice is the foundation
    for rule of law which is an essential factor in the democratic set up.
  58. We have given deep thought as to what sentence should be
    imposed on the contemnor. The conduct of the present contemnor also
    needs to be taken into consideration. This Court in Tehseen Poonawala
    (supra) has observed that the said matter was a fit matter wherein
    criminal contempt proceedings were required to be initiated. However,
    the court stopped at doing so observing that it would have been an
    unequal fight. The learned Attorney General had also initiated contempt
    proceedings against the present contemnor, however, on the contemnor
    submitting regret, the learned Attorney General sought withdrawal of the
    said proceedings. However, the said proceedings are still pending. In the
    present matter also not on one occasion but on several occasions, we not
    only gave opportunity but also directly or indirectly pursuaded the
    contemnor to express regret. Not only that the learned Attorney General
    had also suggested that it was in the fitness of things that a contemnor
    expresses regret and withdraws the allegation made in the affidavit in
    reply, which request was not heeded to by the contemnor. The
    contemnor not only gave wide publicity to the second statement
    81
    submitted before this Court on 24.08.2020 prior to the same being
    tendered to the Court, but also gave various interviews with regard to
    sub judice matter, thereby further attempting to bring down the
    reputation of this Court. If we do not take cognizance of such conduct it
    will give a wrong message to the lawyers and litigants throughout the
    country. However, by showing magnanimity, instead of imposing any
    severe puishment, we are sentencing the contemnor with a nominal fine
    of Re.1/­ (Rupee one).
  59. We, therefore, sentence the contemnor with a fine or Re.1/­ (Rupee
    one) to be deposited with the Registry of this Court by 15.09.2020, failing
    which he shall undergo a simple imprisonment for a period of three
    months and further be debarred from practising in this Court for a
    period of three years.
  60. Accordingly, the present proceedings including all pending
    applications, if any, shall stand disposed of.
    ……………………………….J.
    (Arun Mishra)
    ……………………………….J.
    (B.R. Gavai)
    ……………………………….J.
    (Krishna Murari)
    New Delhi;
    August 31, 2020.
    82