IN RE: PRASHANT BHUSHAN AND ANR.

JUDGMENT The following Judgment of the Court was delivered :

1Copy pinpoint1. Heard Shri K.K. Venugopal, learned Attorney General for India, C Dr. Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior counsel, and the contemnor-Shri Prashant Bhushan.

2Copy pinpoint2. 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 contemnor- Shri Prashant Bhushan raised the following arguments: - D (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. (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, G 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. H

p. 526 Copy page pinpoint

A (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 “vague and wandering” jurisdiction. Reliance has been placed on Shreya B 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. C (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 D 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 E 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 overruled by P.N. Duda (supra). Similarly, reliance on the judgment in C. K. Daphtary & Ors. v. O. P. Gupta & F 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, G 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

IN RE: PRASHANT BHUSHAN AND ANR. 527

p. 528 Copy page pinpoint

A 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. B (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 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. E (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.

3Copy pinpoint3. 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 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 bonafide 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 H

IN RE: PRASHANT BHUSHAN AND ANR. 529

their issues to the notice of this Court, the Court should consider not imposing any sentence on him.

4Copy pinpoint4. 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.

5Copy pinpoint5. 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 C attempted to read out the statement made by Shri Prashant Bhushan in the contempt proceedings, which was initiated in the year 2009, wherein 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.

6Copy pinpoint6. 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. G

7Copy pinpoint7. After Dr. Dhavan, learned senior counsel completed his arguments, we again called upon learned Attorney General, to address us by taking 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 H

p. 530 Copy page pinpoint

A 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 B 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 C General, it was apparent that the learned Attorney General was at pains due to the statements made by the contemnor in the affidavit.

8Copy pinpoint8. 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 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.

9Copy pinpoint9. 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.

10Copy pinpoint10. Dr. Dhavan, learned senior counsel, fairly stated that publication of the supplementary statement of the contemnor in various print as well as other media in advance was not proper, and he also stated that no

IN RE: PRASHANT BHUSHAN AND ANR. 531

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.

11Copy pinpoint11. 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.

12Copy pinpoint12. 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. In Re: Defence

13Copy pinpoint13. 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. G

14Copy pinpoint14. 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 H

p. 532 Copy page pinpoint

A 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. 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. F 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.”

IN RE: PRASHANT BHUSHAN AND ANR. 533

15Copy pinpoint15. The contemnor, in the statement made in this Court on A 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 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 B contemnor was very much present there and we had taken into consideration the submissions which were made in the presence of the contemnor.

16Copy pinpoint16. 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 C 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 2-3 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. G 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 long-standing role as a guardian of the Constitution H and custodian of people’s rights.

p. 534 Copy page pinpoint

A 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.”

17Copy pinpoint17. 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”.

18Copy pinpoint18. 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.

19Copy pinpoint19. 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: - E “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.”

20Copy pinpoint20. 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.

IN RE: PRASHANT BHUSHAN AND ANR. 535

21Copy pinpoint21. 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.

22Copy pinpoint22. In Indirect Tax Practitioners’ Association v. R.K. Jain, (2010) 8 SCC 281, it was held thus: - “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.

42. 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.”

p. 536 Copy page pinpoint

23Copy pinpoint23. 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 B 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: “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.

2. 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.

3. 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.

E 4. 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.

5. The Contempt of Courts (Amendment) Bill, 2003 was introduced in the Lok Sabha on 8-5-2003 and the same was referred to the Department-related Parliamentary Standing Committee on Home Affairs for examination. The Hon’ble Committee considered the said Bill in its meeting held on 2-9-

2003. 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.”

15. A two-Judge 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) H

IN RE: PRASHANT BHUSHAN AND ANR. 537

“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 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 two-Judge 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 two-Judge 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.”

24Copy pinpoint24. 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. G 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.

p. 538 Copy page pinpoint

25Copy pinpoint25. Learned Attorney General, after being taken through the defence taken by the contemnor in the reply, fairly stated that contemnor should be asked to withdraw such defences and it should be taken off the records.

26Copy pinpoint26. With regard to the averments made in the affidavit in reply of B 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 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.

27Copy pinpoint27. 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.

28Copy pinpoint28. 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. H

IN RE: PRASHANT BHUSHAN AND ANR. 539

29Copy pinpoint29. 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.

30Copy pinpoint30. The averment in the affidavit also referred to formation of the Benches by the Chief Justice. There is reference to various cases dealt with by 9-Judges and 5-Judges of this Court and has casted aspersions on the entire justice delivery system and on a large number of Judges.

31Copy pinpoint31. 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.

32Copy pinpoint32. 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. E

33Copy pinpoint33. 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.

34Copy pinpoint34. 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.

35Copy pinpoint35. 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 H

p. 540 Copy page pinpoint

A express an opinion in the public. The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to press. It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media. Nor can they write anything about the correctness of the various wild allegations made, except when they are dealing with the matter. Retired Judges do have the prestige that they have earned by dint of hard work and dedication to this institution. They are also not supposed to be answering each and every allegation made and enter into public debate. Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with dignity. The Bar is supposed to be the spokesperson for the protection of the judicial system. They are an integral part of the system. The Bar and Bench are part of the same system i.e. the judicial system, and enjoy equal reputation. If a scathing attack is made on the judges, it would become difficult for them to work fearlessly and with the objectivity of approach to the issues. The judgment can be criticized. However, motives to the Judges need not be attributed, as it brings the administration of justice into disrepute. 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 definitely an act of scandalizing the Court. Defamatory publication concerning the Judge or institution brings impediment to justice.

36Copy pinpoint36. 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

IN RE: PRASHANT BHUSHAN AND ANR. 541

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 officer-bearers 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 B 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 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 :- E “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 entire fabric of the Constitution it is the principle H

p. 542 Copy page pinpoint

A 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?

11. 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 11-8-1976, is “perhaps one of the last citadels of jealously preserved individualism …”. Justice Douglas in his dissenting opinion in Stephen S. Chandler v. Judicial Council G 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 independent of every other judge…. Neither one alone

IN RE: PRASHANT BHUSHAN AND ANR. 543

nor any number banded together can act as censor and place sanctions on him. It is vital to preserve the opportunities for judicial individualism.”

27. 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, 36-B 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 C 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 D 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 E 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 F 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. G

29. 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. H

p. 544 Copy page pinpoint

A Scurrilous abuse of a Judge 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.

30. In Oswald’s Contempt of Court (3rd Edn.), 1993, at p. 50 it is stated that libel upon courts is made contempt D “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 H

IN RE: PRASHANT BHUSHAN AND ANR. 545

calculated to undermine the authority of the courts and public confidence in the administration of justice.” 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 well-regulated 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.” G The Contempt of Courts Act, 1971 engrafted suitable amendments accordingly. Freedom of expression and duty of Advocate

p. 546 Copy page pinpoint

A 31. 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 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.

34. 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 office-bearers 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 office-bearers 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.”

IN RE: PRASHANT BHUSHAN AND ANR. 547

37Copy pinpoint37. It was argued by Shri Dhavan, learned senior counsel, that question of purging arises mainly in civil contempt. The question of 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:- E “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 F 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 G defiled enters (vide Words and Phrases, Permanent Edn., Vol. 35-A, 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 contempt.” It is preposterous to suggest that if the convicted H

p. 548 Copy page pinpoint

A 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.”

26. 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 E 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.”

38Copy pinpoint38. 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 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 H

IN RE: PRASHANT BHUSHAN AND ANR. 549

consequences of Rule 11 of the Rules which postulates that in case the A advocate has been found guilty of contempt of court, his authority to act or plead in any court stands snapped.

39Copy pinpoint39. In Pravin C. Shah (supra), this Court held thus:- “22. We have already pointed out that Rule 11 of the Rules is a self-operating provision. When the first postulate of it is completed B (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.

27. 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.

28. The Disciplinary Committee of the Bar Council of India highlighted the absence of any mode of purging oneself of the guilt 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 H

p. 550 Copy page pinpoint

A 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.

29. This Court has held in M.Y. Shareef v. Hon’ble Judges B 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) C 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.”

30. A four-Judge Bench of this Court in Mulk Raj v. State of Punjab [(1972) 3 SCC 839] made the following observations which would throw considerable light on the question before us: (SCC p. 840, para 9) G “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

IN RE: PRASHANT BHUSHAN AND ANR. 551

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.”

40Copy pinpoint40. This Court further held that till contempt is purged, the advocate has to suffer the consequences of Rule 11. This Court held: - B “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, C 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.

35. 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.”

41Copy pinpoint41. 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. F 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 G 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. H