IN RE: PRASHANT BHUSHAN AND ANR.

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A [(1998) 4 SCC 409] professional misconduct of the advocate concerned is not a matter directly in issue in the matter of contempt case.”

42Copy pinpoint42. Roshan Lal Ahuja, In Re:, (1993) Supp. 4 SCC 446, it was held that pleadings made had the effect on scandalizing and lowering the B 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.

43Copy pinpoint43. 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 18-19, 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 D 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.”

44Copy pinpoint44. The contemnor has tried to justify the averments made on the basis of the Press Conference dated 12.01.2018 of the four senior-most E 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 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:-

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“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.

26. 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. E 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 decision- making 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.”

72. 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 Advocate-on-Record 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 H

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A 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 B pp. 88-92, paras 20-28, 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.’

21. 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 & Broadcasting, In re [Ministry F 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 G 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.’

22. 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 H

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towards the court have been specified. We extract the 4th A 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 B 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.’ C

23. 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. D 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 E inadequately, for valuable 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.’ F

24. 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 G Maharashtra v. M.V. Dabholkar, (1976) 2 SCC 291] (SCC p. 301, para 23).

25. 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 H

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A 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”.’

B 26. 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. 263-77.] published in the Virginia Law Review, lucidly set down what is expected from the lawyer which is best set out in its own words: C ‘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 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. G 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 H also well be remembered:

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‘But the lawyer is not alone a gentleman; he is a 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 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. F ‘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 pre-eminence 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 G 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.’ H

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A 27. 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 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.’

E 28. 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 F unable to persuade ourselves to let the contemnor go scot-free, 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. G ***

30. We are of the view that the privilege of being an Advocate- on-Record under the rules has clearly been abused by the contemnor. The conduct was not becoming of an advocate much less an Advocate-on-Record in the Supreme Court. H ***

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32. 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 Advocate-on-Record, the court may make an order removing his name from the register of Advocate-on-Record permanently, or for a specified period. We are not referring to the right to practice as an advocate, and the name entered on the rolls of any State Bar Council, which is a necessary requirement, before a person takes the examination of Advocate-on-Record. The present case is clearly one where this Court is of the opinion that the conduct of the contemnor is unbecoming of an Advocate-on- Record. 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.” D

45Copy pinpoint45. 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.

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A 83. 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 even-handed 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.”

46Copy pinpoint46. 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 G to promote a personal, business or political agenda. It was further 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 H

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agency of the Court is being utilized to settle extra judicial scores. This A 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 B 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 instrument and jurisdictional tool to promote structural due process.

97. 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 H

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A 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 non-monetary directions by the courts.”

D 98. 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 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 extra- H

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judicial scores. Business rivalries have to be resolved in a 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.”

47Copy pinpoint47. 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 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 intra-court 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 F 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 well- settled parameters which hold the field, there is no reason for any G 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 H

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A 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 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.”

48Copy pinpoint48. 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. E 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.” H

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49Copy pinpoint49. It was also observed in Kamini Jaiswal (supra) thus:- A “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 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].” E

50Copy pinpoint50. 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 F Court in the last six years has played a vital role in the destruction of democracy.

51Copy pinpoint51. 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 G 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 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 H or overlooked.

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52Copy pinpoint52. 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.

53Copy pinpoint53. 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 D lawyer of long standing are on higher side. An advocate cannot forget his ethical 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 E 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

54Copy pinpoint54. 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. G 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 on the

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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.

55Copy pinpoint55. C.J. Miller in Contempt of Court, Third Edition, dealt with the similar issue referring to the decision in Attorney-General 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. Attorney-General: 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: D 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 Delbert-Evans case was cited with evident approval in Attorney-General 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 black-hearted 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’.”

56Copy pinpoint56. 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.

57Copy pinpoint57. 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 H

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A 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.

58Copy pinpoint58. 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 Attorney-General 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 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.”

59Copy pinpoint59. 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 News-Papers Bombay Pvt. Ltd., and others, (1988) 4 SCC 592.

60Copy pinpoint60. 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

289. We are also unable to agree with the submission made by G 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

IN RE: PRASHANT BHUSHAN AND ANR. 569

court. On little consideration the idea appears to be quite repugnant both from the points of view of the court and the media.

290. 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 B a sting operation concerning a trial may be done only subject to the prior consent and permission of the court would tantamount to pre-censorship of reporting of court proceedings. And this would be plainly an infraction of the media’s right of freedom of speech and expression guaranteed under Article 19(1) of the Constitution. C

291. 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 D 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.” E

61Copy pinpoint61. 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. …”

62Copy pinpoint62. 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 extraneous to conviction as also sentencing. Relevant paragraphs are as under:-

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A “2(F) Public opinion in capital sentencing

80. 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

88. 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 G significant but much neglected distinction between people’s sweeping impressions of sentencing and their views in relation to particular cases of which they know the facts. When it is proclaimed that the public think the courts are too lenient, both these difficulties are usually suppressed. H

IN RE: PRASHANT BHUSHAN AND ANR. 571

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.”” G

63Copy pinpoint63. 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 pre-empted or circumvented by public agitation or publications. H

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64Copy pinpoint64. The Judges have to be impartial towards the crime of voice, as observed in Dharmkosh-43 (Narad 36-4-5) thus:-

65Copy pinpoint65. Meaning thereby, Judges have to be well versed in the laws and impartial towards friends and foes. It emphasizes that the Judges C should be impartial towards friends and foes. In our opinion, the judicial decision cannot be influenced by the opinions expressed in the media.

66Copy pinpoint66. The lawyers and litigants going to press or media in a sub judice matter is another question that is at the forein this matter. While hearing the matter, Shri Prashant Bhushan talked to the press and media. D The statement which was made by Shri Prashant Bhushan, pursuant to the order dated 20.08.2020, was also published well in advance in extenso, word to word, in the newspaper and media. In a sub judice matter, releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making and is clearly an attempt to coerce the decision of the E 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 F 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. G

67Copy pinpoint67. 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

IN RE: PRASHANT BHUSHAN AND ANR. 573

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

68Copy pinpoint68. 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).

69Copy pinpoint69. 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 The Attorney General of India v. Prashant Bhushan), which is pending before this Court. E

70Copy pinpoint70. 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).

71Copy pinpoint71. 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 H

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A 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 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.

72Copy pinpoint72. 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. D 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. E

73Copy pinpoint73. He has also referred R. v. Blackburn, (1968) 1 ALL ER 763, wherein Lord Denning refused to convict or sentence for contempt. He 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 F 2019, in the Parliament suspension case, the English Supreme Court Judges were called ‘enemies of democracy,’ but no action was taken.

74Copy pinpoint74. 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 G 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. H

IN RE: PRASHANT BHUSHAN AND ANR. 575

75Copy pinpoint75. We find no force in the submission raised to recall the judgment, A 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. B

76Copy pinpoint76. 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:- C “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.”

77Copy pinpoint77. The case of Maheshwari Peri & others v. High Court of F 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 G law that the prosecution procedure should be in consonance with the Act, as held by this Court in Pallav Seth.”

78Copy pinpoint78. 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 InRe: Vijay Kurle and Ors., 2020 H

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A SCC Online SC 407. We will not repeat them again as they are referred to in the convicting judgment.

79Copy pinpoint79. 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 B 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.

80Copy pinpoint80. 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 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 E 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 F 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.

81Copy pinpoint81. 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

IN RE: PRASHANT BHUSHAN AND ANR. 577

82Copy pinpoint82. 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 H

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A 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 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.

83Copy pinpoint83. 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 D 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 E & Ors., (2008) 3 SCC 1 and Chairman, All India Railway Rec. Board & Ors. v. K. Shyam 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 F 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:- G “… 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 H

IN RE: PRASHANT BHUSHAN AND ANR. 579

justice, and are genuinely exercising a right of criticism and not A 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) B

84Copy pinpoint84. 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 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 2-3 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. 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.

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85Copy pinpoint85. 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, B 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.

86Copy pinpoint86. We have applied the aforesaid guidelines and standards.

87Copy pinpoint87. 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 there is an expression of regret and if the affidavit is withdrawn, perhaps D 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 E 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 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

IN RE: PRASHANT BHUSHAN AND ANR. 581

not be taken into consideration for considering the case of Mr. Prashant A Bhushan of truth as a defence. When senior-most 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.

88Copy pinpoint88. 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.

89Copy pinpoint89. 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 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 E 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. F

90Copy pinpoint90. 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 G in spite of our persuasion or the advice of the learned Attorney General. Thus, we have to consider imposing an appropriate sentence upon him.

91Copy pinpoint91. 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 H

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A committed by the contemnor is a very serious one. He has attempted to denigrate the 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. B

92Copy pinpoint92. 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 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).

93Copy pinpoint93. 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, G 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.

94Copy pinpoint94. Accordingly, the present proceedings including all pending applications, if any, shall stand disposed of. H Kalpana K. Tripathy Contempt proceedings disposed of.