wilfully and deliberately using hate/scandalous speech against this Court and entire judicial system -a tweet made by Mr. Prashant Bhushan, Advocate =We find that the tweet in question, made against the CJI, is to the following effect :- “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!” Apart from that, another tweet has been published today in the Times of India which was made by Shri Prashant Bhushan on June 27, 2020, when he tweeted, “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last CJIs.” We are, prima facie, of the view that the aforesaid statements on Twitter have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the Institution of Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of public at large. We take suo motu cognizance of the aforesaid tweet also apart from the tweet quoted above and suo motu register the proceedings.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
INHERENT JURISDICTION
SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020
IN RE:
PRASHANT BHUSHAN & ANR. …. ALLEGED CONTEMNOR(S)
JUDGMENT

  1. A petition came to be filed in this Court by one Mahek
    Maheshwari bringing to the notice of this Court, a tweet made
    by Mr. Prashant Bhushan, Advocate, alleged contemnor No.1
    praying therein to initiate contempt proceedings against the
    alleged contemnors for wilfully and deliberately using
    hate/scandalous speech against this Court and entire judicial
    system. The Registry placed the said petition on the
    Administrative side of this Court seeking direction as to
    whether it should be listed for hearing or not, as consent of the
    learned Attorney General for India had not been obtained by
    the said Shri Maheshwari to file the said petition. After
    2
    examining the matter on the Administrative side, this court on
    the administrative side directed the matter to be listed on the
    Judicial side to pass appropriate orders. Accordingly, the
    petition was placed before us on 22.7.2020. On the said date,
    we passed the following order:
    “This petition was placed before us on the
    administrative side whether it should be
    listed for hearing or not as permission of
    the Attorney General for India has not
    been obtained by the petitioner to file this
    petition. After examining the matter on
    administrative side, we have directed the
    matter to be listed before the Court to pass
    appropriate orders. We have gone through
    the petition. We find that the tweet in
    question, made against the CJI, is to the
    following effect :-
    “CJI rides a 50 Lakh motorcycle
    belonging to a BJP leader at Raj
    Bhavan Nagpur, without a
    mask or helmet, at a time when
    he keeps the SC in Lockdown
    mode denying citizens their
    fundamental right to access
    justice!”
    Apart from that, another tweet has been
    published today in the Times of India
    which was made by Shri Prashant
    Bhushan on June 27, 2020, when he
    tweeted, “When historians in future look
    back at the last 6 years to see how
    3
    democracy has been destroyed in India
    even without a formal Emergency, they
    will particularly mark the role of the
    Supreme Court in this destruction, &
    more particularly the role of the last 4
    CJIs.”
    We are, prima facie, of the view that
    the aforesaid statements on Twitter have
    brought the administration of justice in
    disrepute and are capable of undermining
    the dignity and authority of the Institution
    of Supreme Court in general and the office
    of the Chief Justice of India in particular,
    in the eyes of public at large.
    We take suo motu cognizance of the
    aforesaid tweet also apart from the tweet
    quoted above and suo motu register the
    proceedings.
    We issue notice to the Attorney
    General for India and to Mr. Prashant
    Bhushan, Advocate also.
    Shri Sajan Poovayya, learned senior
    counsel has appeared along with Mr.
    Priyadarshi Banerjee and Mr. Manu
    Kulkarni, learned counsel appearing on
    behalf of the Twitter, and submitted that
    the Twitter Inc., California , USA is the
    correct description on which the tweets
    were made by Mr. Prashant Bhushan. Let
    the reply be also filed by them.
    List on 05.08.2020.”
    4
  2. In response to the notice issued by this Court, both
    the alleged contemnors have filed their respective affidavit-inreply. Mr. Prashant Bhushan, the alleged contemnor No.1, has
    filed a detailed affidavit running into 134 pages, which along
    with the Annexures runs into 463 pages.
  3. The main contention of the alleged contemnor No.1 is,
    that insofar as the first tweet is concerned, it was made
    primarily to underline his anguish at the non-physical
    functioning of the Supreme Court for the last more than three
    months, as a result of which fundamental rights of citizens,
    such as those in detention, those destitute and poor, and
    others facing serious and urgent grievances were not being
    addressed or taken up for redressal. It is contended, that it
    was made to highlight the incongruity of the situation where
    the CJI on one hand keeps the court virtually in lockdown due
    to COVID fears, with hardly any cases being heard and those
    heard, also by an unsatisfactory process through video
    conferencing and on the other hand is seen in a public place
    with several people around him without a mask. It is his
    5
    submission, that expressing his anguish by highlighting the
    said incongruity and the attendant facts, the first tweet cannot
    be said to constitute contempt of court. It is submitted, that if
    it is regarded as a contempt, it would stifle free speech and
    would constitute an unreasonable restriction on the right of a
    citizen under Article l9(1)(a) of the Constitution.
  4. Insofar as the second tweet dated 27.6.2020 is
    concerned, it is his submission, that the said tweet has three
    distinct elements, each of which is his bona fide opinion about
    the state of affairs in the country in the past six years and the
    role of the Supreme Court and in particular the role of the last
    4 CJIs. It is submitted, that the first part of the tweet contains
    his considered opinion, that democracy has been substantially
    destroyed in India during the last six years. The second part is
    his opinion, that the Supreme Court has played a substantial
    role in allowing the destruction of the democracy and the third
    part is his opinion regarding the role of the last 4 Chief Justices
    in particular in allowing it. It is his submission, that such an
    expression of opinion, however outspoken, disagreeable or
    6
    however unpalatable to some, cannot constitute contempt of
    court. It is his contention, that it is the essence of a democracy
    that all institutions, including the judiciary, function for the
    citizens and the people of this country and they have every
    right to freely and fairly discuss the state of affairs of an
    institution and build public opinion in order to reform the
    institution.
  5. It is further contended, that the Chief Justice is not
    the Supreme Court and that raising issues of concern
    regarding the manner in which a CJI conducts himself during
    court vacations, or raising issues of grave concern regarding
    the manner in which four CJIs have used, or failed to use, their
    powers as “Master of the Roster” to allow the spread of
    authoritarianism, majoritarianism, stifling of dissent,
    widespread political incarceration and so on, cannot and does
    not amount to “scandalising or lowering the authority of the
    court”. It is submitted, that the Court cannot be equated with
    a Chief Justice, or even a succession of four CJIs. It is
    submitted, that to bona fide critique the actions of a CJI, or a
    7
    succession of CJIs, cannot and does not scandalise the court,
    nor does it lower the authority of the Court. It is his
    submission, that to assume or suggest that the CJI is the
    Supreme Court and the Supreme Court is the CJI is to
    undermine the institution of the Supreme Court of India.
  6. Insofar as alleged contemnor No.2, Twitter Inc. is
    concerned, in the affidavit-in-reply filed on its behalf it is
    stated, that it is a global website providing micro-blogging
    platform for self-expression of its users and to communicate.
    It is further stated, that the alleged contemnor No.2 has not
    authored or published the tweets in question and the same
    have been authored and published by alleged contemnor No.1.
    It is also submitted, that it is merely an ‘intermediary’ within
    the meaning as provided under the Information Technology
    Act, 2000 and thus is not the author or originator of the tweets
    posted on its platform. In this background it has been
    submitted, that the alleged contemnor No.2 has no editorial
    control on the tweets and merely acts as a display board. It is
    also submitted, that under section 79 of the Information
    8
    Technology Act, 2000 the alleged contemnor no.2 has been
    provided safe harbour as an intermediary for any objectional
    posts on its platform posted by its users. It is lastly submitted,
    that to show its bonafides, the alleged contemnor No.2 after
    the order dated 22.07.2020 of this court, taking cognizance of
    the impugned tweets, blocked the access to the said tweets and
    disabled the same. In this premise it has been submitted, that
    alleged contemnor No.2 be discharged from the present
    proceedings.
  7. We have extensively heard Shri Dushyant Dave,
    learned Senior Counsel appearing on behalf of the alleged
    Contemnor No.1 and Shri Sajan Poovayya, learned Senior
    Counsel appearing on behalf of the alleged contemnor No.2.
  8. Shri Dave, learned Senior Counsel appearing on behalf
    of the alleged contemnor No.1 raised a preliminary objection.
    He submitted, that since the present proceedings are initiated
    on the basis of the petition filed by Mr. Maheshwari, the same
    cannot be treated as a suo motu contempt petition. He
    submitted, that unless there was a consent of the learned
    9
    Attorney General for India, the proceedings could not have
    been initiated on the basis of complaint of Mr. Maheshwari.
  9. Relying on the definition of ‘criminal contempt’ as is
    found in the Contempt of Courts Act, 1971, Shri Dushyant
    Dave, learned Senior Counsel, submits, that the order issuing
    notice does not state that any act of the alleged contemnor No.1
    scandalizes or tends to scandalize or lowers or tends to lower
    the authority of any Court. Neither does it mention, that any
    of his act prejudices or interferes or tends to interfere with, due
    course of any judicial proceeding or interferes or tends to
    interfere with, or obstructs or tends to obstruct, the
    administration of justice in any manner. He therefore submits,
    that, as such, the proceedings initiated by this Court cannot
    continue.
  10. Relying on the judgment of the Constitution Bench of
    this Court in Brahma Prakash Sharma and Others vs. The
    State of Uttar Pradesh1, Shri Dave submits, that what
    should weigh with the Court is that, whether the reflection on
    1 1953 SCR 1169
    10
    the conduct or character of a judge is within the limits of fair
    and reasonable criticism and whether it is mere libel or
    defamation of the Judge. It is submitted, that if it is a mere
    defamatory attack on the judge and is not calculated to
    interfere with the due course of justice or the proper
    administration of the law by such court, it is not proper to
    proceed by way of contempt. He would submit, that in the
    present case, at the most, it can be said that the allegations in
    the tweets are only against the present CJI and the past three
    CJIs and that too, in their individual capacity and as such, in
    no way they can be said to be calculated to interfere with the
    due course of justice or the proper administration of the law
    by Court and therefore, it is not proper to continue with the
    present contempt proceedings.
  11. He submits, that in such a situation, the question is
    not to be determined solely with reference to the language or
    contents of the statement made. All the surrounding facts and
    circumstances under which the statement was made and the
    degree of publicity which was given to it would be relevant
    11
    circumstances. He submits, that insofar as the first tweet is
    concerned, the said was an expression of anguish by the
    alleged contemnor No.1 on account of non-functioning of the
    physical courts for the last more than three months and
    thereby, denying the right to justice to the litigants. Insofar as
    the second tweet is concerned, in the submission of Shri Dave,
    that the said was an expression of his opinion that on account
    of the action or inaction of the Four CJIs that contributed to
    the destruction of democracy in the country, without a formal
    emergency.
  12. Relying on the Constitution Bench judgment of this
    Court in the case of Baradakanta Mishra vs The Registrar
    Of Orissa High Court & another2, learned Senior Counsel
    submits, that when proceedings in contempt are taken for
    vilification of the judge, the question which the court has to
    ask is whether the vilification is of the judge as a judge or it is
    the vilification of the judge as an individual. He submits, that
    if the vilification of the judge is as an individual, then he is left
    2
    (1974) 1 SCC 374
    12
    to his private remedies and the Court has no power to punish
    for contempt. It is submitted, that however, in the former case,
    the Court will proceed to exercise the jurisdiction with
    scrupulous care and in cases which are clear and beyond
    reasonable doubt. It is submitted, in the present case, the
    vilification, if any, is against the CJI as an individual and not
    as a CJI of the Supreme Court and as such, the proceedings of
    the Court would not be tenable.
  13. Relying on the observations made by Justice Krishna
    Iyer in Re: S. Mulgaokar3, learned Senior Counsel submits,
    that the court should be willing to ignore, by a majestic
    liberalism, trifling and venial offences. It is submitted, that the
    Court will not be prompted to act as a result of an easy
    irritability. Rather, it shall take a noetic look at the
    conspectus of features and be guided by a constellation of
    constitutional and other considerations when it chooses to
    use, or desist from using, its power of contempt. He submits,
    that this Court had held, that to criticize the judge fairly, albeit
    3
    (1978) 3 SCC 339
    13
    fiercely, is no crime but a necessary right, twice blessed in a
    democracy. He submits, that where freedom of expression,
    fairly exercised, subserves public interest in reasonable
    measure, public justice cannot gag it or manacle it.
  14. Shri Dave, learned Senior Counsel, submits, that in
    the case of P.N. Duda vs. P. Shiv Shanker & Others4, the
    then Minister of Law, Justice and Company Affairs P. Shiv
    Shankar had made a speech making fierce allegations to the
    effect, that the Supreme Court was composed of elements from
    the elite class, that because they had their ‘unconcealed
    sympathy for the haves’ they interpreted the expression
    ‘compensation’ in the manner they did. He submits, that the
    Supreme Court held, that the said was an expression of
    opinion about an institutional pattern. It is submitted, that
    even in spite of such serious allegations made, the Court found
    that the case of proceeding for contempt was not made out.
  15. Lastly, Shri Dave submits, that taking into
    consideration the fact, that the alleged contemnor No.1 in his
    4
    (1988) 3 SCC 167
    14
    practice at the Supreme Court and the Delhi High Court had
    consistently taken up many issues of public interest
    concerning the health of democracy and its institutions and in
    particular the functioning of the judiciary and especially its
    accountability, this Court should not proceed against him.
  16. The legal position is no more res integra.
  17. Insofar as the contention of the learned Senior
    Counsel appearing for the alleged contemnor No.1, that in the
    present case, the Court could not have initiated suo motu
    proceedings and could have proceeded on the petition filed by
    Mr. Mahek Maheshwari only after the consent was obtained
    from the learned Attorney General for India is concerned, very
    recently, a Bench of this Court has considered identical
    submissions in the case of Re: Vijay Kurle & Ors.5. The
    Bench has considered various judgments of this Court on the
    issue, in detail. Therefore, it will be apposite to refer to the
    following paragraphs of the judgment wherein the earlier law
    has been discussed in extenso:
    5 2020 SCC Online SC 407 (Suo Motu Contempt Petition (Criminal) No.2 of 2019
    15
    “Powers of the Supreme Court
  18. Before we deal with the objections
    individually, we need to understand what are
    the powers of the Supreme Court of India in
    relation to dealing with contempt of the
    Supreme Court in the light of Articles 129
    and 142 of the Constitution of India when
    read in conjunction with the Contempt of
    Courts Act, 1971. According to the alleged
    contemnors, the Contempt of Courts Act is
    the final word in the matter and if the
    procedure prescribed under the Contempt of
    Courts Act has not been followed then the
    proceedings have to be dropped. On the other
    hand, Shri Sidharth Luthra, learned amicus
    curiae while making reference to a large
    number of decisions contends that the
    Supreme Court being a Court of Record is not
    bound by the provisions of the Contempt of
    Courts Act. The only requirement is that the
    procedure followed is just and fair and in
    accordance with the principles of natural
    justice.
    Article 129 of the Constitution of India
    reads as follows:
    “129. Supreme Court to be a court of
    record.- The Supreme Court shall be a
    court of record and shall have all the
    powers of such a court including the
    power to punish for contempt of itself.”
    A bare reading of Article 129 clearly shows
    that this Court being a Court of Record shall
    have all the powers of such a Court of Record
    including the power to punish for contempt
    of itself. This is a constitutional power which
    cannot be taken away or in any manner
    abridged by statute.
    16
    Article 142 of the Constitution of India
    reads as follows:
    “142. Enforcement of decrees and
    orders of Supreme Court and orders as
    to discovery, etc.- (1) The Supreme Court
    in the exercise of its jurisdiction may pass
    such decree or make such order as is
    necessary for doing complete justice in
    any cause or matter pending before it, and
    any decree so passed or order so made
    shall be enforceable throughout the
    territory of India in such manner as may
    be prescribed by or under any law made
    by Parliament and, until provision in that
    behalf is so made, in such manner as the
    President may by order prescribe.
    (2) Subject to the provisions of any law
    made in this behalf by Parliament, the
    Supreme Court shall, as respects the
    whole of the territory of India, have all and
    every power to make any order for the
    purpose of securing the attendance of any
    person, the discovery or production of any
    documents, or the investigation or
    punishment of any contempt of itself.”
    Article 142 also provides that this Court
    can punish any person for contempt of itself
    but this power is subject to the provisions of
    any law made by parliament. A comparison
    of the provisions of Article 129 and clause (2)
    of Article 142 clearly shows that whereas the
    founding fathers felt that the powers under
    clause 92) of Article 142 could be subject to
    any law made by parliament, there is no such
    restriction as far as Article 129 is concerned.
    The power under clause (2) of Article 142 is
    not the primary source of power of Court of
    17
    Record which is Article 129 and there is no
    such restriction in Article 129. Samaraditya
    Pal in the Law of Contempt has very
    succinctly stated the legal position as follows:
    “Although the law of contempt is largely
    governed by the 1971 Act, it is now settled
    law in India that the High Courts and the
    Supreme Court derive their jurisdiction
    and power from Articles 215 and 129 of
    the Constitution. This situation results in
    giving scope for “judicial self-dealing”.
    The High Courts also enjoy similar powers
    like the Supreme Court under Article 215 of
    the Constitution. The main argument of the
    alleged contemnors is that notice should
    have been issued in terms of the provisions
    of the Contempt of Courts Act and any
    violation of the Contempt of Courts Act would
    vitiate the entire proceedings. We do not
    accept this argument. In view of the fact that
    the power to punish for contempt of itself is
    a constitutional power vested in this Court,
    such power cannot be abridged or taken
    away even by legislative enactment.
  19. To appreciate the rival contention, we
    shall have to make reference to a number of
    decisions relied upon by both the parties.
    The first judgment on the point is Sukhdev
    Singh Sodhi v. The Chief Justice and Judges
    of the Pepsu High Court. It would be
    pertinent to mention that the said judgment
    was given in the context of the Contempt of
    Courts Act, 1952. The issue before this Court
    in the said case was whether contempt
    proceedings could said to be the proceedings
    under the Criminal Procedure Code, 1973
    (Cr.PC) and the Supreme Court had the
    18
    power to transfer the proceedings from one
    court to another under the Cr.PC. Rejecting
    the prayer for transfer, this Court held as
    follows:—
    “….We hold therefore that the Code of
    Criminal Procedure does not apply in
    matters of contempt triable by the High
    Court. The High Court can deal with it
    summarily and adopt its own procedure.
    All that is necessary is that the procedure
    is fair and that the contemner is made
    aware of the charge against him and given
    a fair and reasonable opportunity to
    defend himself. This rule was laid down by
    the Privy Council in In re Pollard (L.R. 2
    P.C. 106 at 120) and was followed in India
    and in Burma in In re Vallabhdas (I.L.R.
    27 Bom. 394 at 390) and Ebrahim
    Mamoojee Parekh v. King Emperor (I.L.R. 4
    Rang. 257 at 259-261). In our view that is
    still the law.”
  20. A Constitution Bench of this Court
    in Shri C. K. Daphtary v. Shri O.P. Gupta was
    dealing with a case where the contemnor had
    published a pamphlet casting scurrilous
    aspersions on 2 Judges of this Court. During
    the course of argument, the contemnor
    raised a plea that all the evidence has not
    been furnished to him and made a request
    that the petitioner be asked to furnish the
    “pamphlet” or “book” annexed to the petition.
    The Court rejected this argument holding
    that the booklet/pamphlet had been annexed
    to the petition in original and the Court had
    directed that the matter be decided on
    affidavits.
    19
  21. In respect of the absence of a specific
    charge being framed, the Court held that a
    specific charge was not required to be framed
    and the only requirement was that a fair
    procedure should be followed. Dealing with
    the Contempt of Courts Act, 1952 this Court
    held as follows:—
    “58. We are here also not concerned
    with any law made by Parliament. Article
    129 shows that the Supreme Court has all
    the powers of a Court of Record, including
    the power to punish for contempt of itself;
    and Article 142(2) goes further and
    enables us to investigate any contempt of
    this Court.”
  22. Thereafter, this Court approved the
    observations in Sukhdev Singh Sodhi’s
    case (supra) and held as follows:—
    “78. In our view that is still the law. It
    is in accordance with the practice of this
    Court that a notice was issued to the
    respondents and opportunity given to
    them to file affidavits stating facts and
    their contentions. At one stage, after
    arguments had begun Respondent No. 1
    asked for postponement of the case to
    engage some lawyers who were engaged in
    fighting elections. We refused
    adjournment because we were of the view
    that the request was not reasonable and
    was made with a view to delay matters. We
    may mention that the first respondent
    fully argued his case for a number of days.
    The procedure adopted by us is the usual
    procedure followed in all cases.”
  23. According to the alleged contemnors,
    both the aforesaid judgments are per
    20
    incuriam after coming into force of the
    Contempt of Courts Act, 1971. They are
    definitely not per incuriam because they have
    been decided on the basis of the law which
    admittedly existed, but for the purposes of
    this case, we shall treat the argument of the
    alleged contemnors to be that the judgments
    are no longer good law and do not bind this
    Court. It has been contended by the alleged
    contemnors that both the aforesaid cases are
    overruled by later judgments. We shall now
    refer to some of the decisions cited by the
    parties.
  24. In P.N. Duda v. P. Shiv Shanker the
    respondent, Shri P. Shiv Shiv Shanker, who
    was a former judge of the High Court and was
    the Minister for Law, Justice and Company
    Affairs delivered a speech which was said to
    be contemptuous. A petition was filed by the
    petitioner P. N. Duda who was an advocate of
    this Court but this Court declined to initiate
    contempt proceedings. At the outset, we may
    note that while giving the reasons for not
    initiating contempt, though this Court held
    that the contempt petition was not
    maintainable, it went into the merits of the
    speech delivered by Shri P. Shiv Shanker and
    held that there was no imminent danger of
    interference with the administration of the
    justice and bringing administration into
    disrepute. It was held that Shri P. Shiv
    Shanker was not guilty of contempt of this
    Court. Having held so, the Court went on to
    decide whether the petition could have been
    entertained on behalf of Shri Duda. In the
    said petition, Shri Duda had written a letter
    to the Attorney General seeking consent for
    initiating contempt proceedings against Shri
    21
    P. Shiv Shanker. A copy of the said letter was
    also sent to the Solicitor General of India.
    While seeking consent, the petitioner had
    also stated that the Attorney General may be
    embarrassed to give consent for prosecution
    of the Law Minister and in view of the said
    allegations, the Attorney General felt that the
    credibility and authority of the office of the
    Attorney General was undermined and
    therefore did not deny or grant sanction for
    prosecution. The Court held that the
    petitioner could not move the Court for
    initiating contempt proceedings against the
    respondent without consent of the Attorney
    General and the Solicitor General. The
    relevant portion of the judgment reads as
    follows:—
    “39. The question of contempt of court
    came up for consideration in the case
    of C.K. Daphtary v. O.P. Gupta. In that
    case a petition under Article 129 of the
    Constitution was filed by Shri C.K.
    Daphtary and three other advocates
    bringing to the notice of this Court alleged
    contempt committed by the respondents.
    There this court held that under Article
    129 of the Constitution this Court had the
    power to punish for contempt of itself and
    under Article 143(2) it could investigate
    any such contempt. This Court reiterated
    that the Constitution made this Court the
    guardian of fundamental rights. This
    Court further held that under the existing
    law of contempt of court any publication
    which was calculated to interfere with the
    due course of justice or proper
    administration of law would amount to
    contempt of court. A scurrilous attack on
    22
    a Judge, in respect of a judgment or past
    conduct has in our country the inevitable
    effect of undermining the confidence of the
    public in the Judiciary ; and if confidence
    in Judiciary goes administration of justice
    definitely suffers. In that case a pamphlet
    was alleged to have contained statements
    amounting to contempt of the court. As
    the Attorney General did not move in the
    matter, the President of the Supreme
    Court bar and the other petitioners chose
    to bring the matter to the notice of the
    court. It was alleged that the said
    President and the other members of the
    bar have no locus standi. This Court held
    that the court could issue a notice suo
    motu. The President of the Supreme Court
    bar and other petitioners were perfectly
    entitled to bring to the notice of the court
    any contempt of the court. The first
    respondent referred to Lord Shawcross
    Committee’s recommendation in U.K. that
    “proceedings should be instituted only if
    the Attorney General in his discretion
    considers them necessary”. This was only
    a recommendation made in the light of
    circumstances prevailing in England. But
    that is not the law in India, this Court
    reiterated. It has to be borne that decision
    was rendered on March 19, 1971 and the
    present Act in India was passed on
    December 24, 1971. Therefore that
    decision cannot be of any assistance. We
    have noticed Sanyal Committee’s
    recommendations in India as to why the
    Attorney General should be associated
    with it, and thereafter in U.K. there was
    report of Phillimore Committee in 1974. In
    23
    India the reason for having the consent of
    the Attorney General was examined and
    explained by Sanyal Committee Report as
    noticed before.”
  25. The alleged contemnors contended
    that the last portion of the aforesaid
    paragraph shows that the judgment in C.K.
    Daphtary’s case (supra) having been
    delivered prior to the enactment of Contempt
    of Courts Act, 1971 is no longer applicable.
    We may however point out that in the very
    next paragraph in the same judgment, it was
    held as follows:—
    “40. Our attention was drawn by Shri
    Ganguly to a decision of the Allahabad
    High Court in G.N. Verma v. Hargovind
    Dayal (AIR 1975 All 52) where the Division
    Bench reiterated that Rules which provide
    for the manner in which proceedings for
    contempt of court should be taken
    continue to apply even after the enactment
    of the Contempt of Courts Act, 1971.
    Therefore cognizance could be taken suo
    motu and information contained in the
    application by a private individual could
    be utilised. As we have mentioned
    hereinbefore indubitably cognizance could
    be taken suo motu by the court but
    members of the public have also the right
    to move the court. That right of bringing to
    the notice of the court is dependent upon
    consent being given either by the Attorney
    General or the Solicitor General and if that
    consent is withheld without reasons or
    without consideration of that right granted
    to any other person under Section 15 of
    the Act that could be investigated in an
    application made to the court.”
    24
  26. The alleged contemnors rely on certain
    observations in the concurring judgment of
    Justice Ranganathan in the same judgment
    wherein he has approved the following
    passage from a judgment of the Delhi High
    Court in Anil Kumar Gupta v. K. Subba
    Rao.:—
    “The office is to take note that in future
    if any information is lodged even in the
    form of a petition inviting this Court to
    take action under the Contempt of Courts
    Act or Article 215 of the Constitution,
    where the informant is not one of the
    persons named in Section 15 of the said
    Act, it should not be styled as a petition
    and should not be placed for admission on
    the judicial side. Such a petition should be
    placed before the Chief Justice for orders
    in Chambers and the Chief Justice may
    decide either by himself or in consultation
    with the other judges of the Court whether
    to take any cognizance of the information.
    The office is directed to strike off the
    information as “Criminal Original No. 51
    of 1973” and to file it.”
    Thereafter Justice Ranganathan made the
    following observation:—
    “54….I think that the direction given by
    the Delhi High Court sets out the proper
    procedure in such cases and may be
    adopted, at least in future, as a practice
    direction or as a rule, by this Court and
    other High Courts….”
  27. Relying upon the aforesaid
    observations in the judgment delivered by
    Justice Ranganathan it is submitted that the
    petition could not have been placed for
    25
    admission on the judicial side but should
    have been placed before the Chief Justice
    and not before any other Bench. We are not
    at all in agreement with the submission.
    What Justice Ranganathan observed is an
    obiter and not the finding of the Bench and
    this is not the procedure prescribed under
    the Rules of this Court.
  28. This Court has framed rules in this
    regard known as The Rules to Regulate
    Proceedings for Contempt of the Supreme
    Court, 1975 (for short ‘the Rules’) and
    relevant portion of Rule 3 of the Rules reads
    as follows:—
    “3. In case of contempt other than the
    contempt referred to in rule 2, the Court
    may take action—
    (a) suo motu, or
    (b) on a petition made by AttorneyGeneral, or Solicitor- General, or
    (c) on a petition made by any person,
    and in the case of a criminal
    contempt with the consent in writing
    of the Attorney-General or the
    Solicitor-General.”
  29. A bare perusal of Rule 3 shows that
    there are 3 ways for initiating contempt
    proceedings. The first is suo motu, the second
    is on a petition made by the Attorney General
    or the Solicitor General, and the third is on
    the basis of a petition made by any person
    and where criminal contempt is involved
    then the consent of the Attorney General or
    the Solicitor General is necessary. Rules 4
    and 5 prescribe for the manner of filing of a
    petition under Rules 3(b) and 3(c). Rule 4 lays
    26
    down the requirements of a petition to be
    filed under Rules 3(b) and 3(c) and Rule 5
    requires that every petition under Rule 3(b)
    or Rule 3(c) shall be placed before the Court
    for preliminary hearing. Rule 6 requires
    notice to the person charged to be in terms of
    Form I. Rule 6 reads as follows:—
    “6. (1) Notice to the person charged shall
    be in Form I. The person charged
    shall, unless otherwise ordered,
    appear in person before the Court as
    directed on the date fixed for hearing
    of the proceeding, and shall continue
    to remain present during hearing till
    the proceeding is finally disposed of
    by order of the Court.
    (2) When action is instituted on petition,
    a copy of the petition along with the
    annexure and affidavits shall be
    served upon the person charged.”
  30. These Rules have been framed by the
    Supreme Court in exercise of the powers
    vested in it under Section 23 of the Contempt
    of Courts Act, 1971 and they have been
    notified with the approval of Hon’ble the
    President of India.
  31. In Pritam Pal v. High Court of Madhya
    Pradesh, Jabalpur Through Registrar, a 2
    Judge Bench of this Court held as follows:—
    “15. Prior to the Contempt of Courts
    Act, 1971, it was held that the High Court
    has inherent power to deal with a
    contempt of itself summarily and to adopt
    its own procedure, provided that it gives a
    fair and reasonable opportunity to the
    contemnor to defend himself. But the
    27
    procedure has now been prescribed by
    Section 15 of the Act in exercise of the
    powers conferred by Entry 14, List III of
    the Seventh Schedule of the Constitution.
    Though the contempt jurisdiction of the
    Supreme Court and the High Court can be
    regulated by legislation by appropriate
    Legislature under Entry 77 of List I and
    Entry 14 of List III in exercise of which the
    Parliament has enacted the Act of 1971,
    the contempt jurisdiction of the Supreme
    Court and the High Court is given a
    constitutional foundation by declaring to
    be ‘Courts of Record’ under Articles 129
    and 215 of the Constitution and,
    therefore, the inherent power of the
    Supreme Court and the High Court cannot
    be taken away by any legislation short of
    constitutional amendment. In fact,
    Section 22 of the Act lays down that the
    provisions of this Act shall be in addition
    to and not in derogation of the provisions
    of any other law relating to Contempt of
    Courts. It necessarily follows that the
    constitutional jurisdiction of the Supreme
    Court and the High Court under Articles
    129 and 215 cannot be curtailed by
    anything in the Act of 1971…”
  32. In Delhi Judicial Service Association,
    Tis Hazari Court, Delhi v. State of Gujarat. a
    three-Judge Bench of this Court relied upon
    the judgment in the case of Sukhdev Singh
    Sodhi (supra) and held that the Supreme
    Court had inherent jurisdiction or power to
    punish for contempt of inferior courts under
    Article 129 of the Constitution of India.
  33. A three-Judge Bench of this Court In
    Re: Vinay Chandra Mishra discussed the law
    28
    on this point in detail. The Court while
    holding the respondent guilty for contempt
    had not only sentenced him to simple
    imprisonment for a period of 6 weeks which
    was suspended but also suspended his
    advocacy for a period of 3 years, relying upon
    the powers vested in this Court under Article
    129 and 142 of the Constitution of India.
  34. We may now refer to certain other
    provisions of Constitution, Entry 77, Union
    List (List I) of VII Schedule reads as follows:
    “77. Constitution, organisation,
    jurisdiction and powers of the Supreme
    Court (including contempt of such Court),
    and the fees taken therein; persons
    entitled to practise before the Supreme
    Court.”
    Entry 14, Concurrent List (List III of VII
    Schedule) reads as follows:
    “14. Contempt of court, but not
    including contempt of the Supreme
    Court.”
    In exercise of the aforesaid powers the
    Contempt of Courts Act, 1971 was enacted
    by Parliament. Section 15 deals with
    cognizance of criminal contempt and the
    opening portion of Section 15 clearly provides
    that the Supreme Court or the High Courts
    may take action (i) suo motu (ii) on a motion
    moved by the Advocate General in case of
    High Court or Attorney General/Solicitor
    General in the case of Supreme Court and (iii)
    on a petition by any other person with the
    consent in writing of the Advocate
    General/Attorney General/Solicitor General
    as the case may be. Section 17 lays down the
    29
    procedure to be followed when action is taken
    on a motion moved by the Advocate
    General/Attorney General/Solicitor General
    or on the basis of their consent and Section
    17(2) does not deal with suo motu contempt
    petitions. Section 17(2)(a) of the Contempt of
    Courts Act will not apply to suo
    motu petitions because that deals with the
    proceedings moved on a motion and not suo
    motu proceedings. Section 17(2)(b) deals with
    contempt initiated on a reference made by
    the subordinate court. It is only in these
    cases that the notice is required to be issued
    along with a copy of the motion. As far as suo
    motu petitions are concerned, in these cases
    the only requirement of Form-I which has
    been framed in pursuance of Rule 6 of the
    Rules of this Court is that the brief nature of
    the contempt has to be stated therein.
  35. The correctness of the judgment
    in Vinay Chandra Mishra’s case (supra) was
    considered by a Constitution Bench of this
    Court in Supreme Court Bar
    Association v. Union of India. We shall be
    referring to certain portions of that judgment
    in detail. That being a Constitution Bench
    judgment, is binding and all other judgments
    which may have taken a view to the contrary
    cannot be said to be correct. Before we deal
    with the judgment itself, it would be
    appropriate to refer to certain provisions of
    the Contempt of Courts Act, 1971. Section 2
    is the definition clause defining “contempt of
    court”, “civil contempt’, “criminal contempt’
    and “High Court’. Sections 3 to 5 deal with
    innocent publication, fair and accurate
    reporting of judicial proceedings and fair
    criticism of judicial act, which do not amount
    30
    to contempt. Sections 10 and 11 deal with
    the powers of the High Court to punish for
    contempt. Section 12(2) provides that no
    court shall impose a sentence in excess of
    that specified in sub-section (1) of Section 12.
    Section 13 provides that no court should
    impose a sentence under the Act for
    contempt unless it is satisfied that the
    contempt is of such a nature that it
    substantially interferes or tends to
    substantially interfere with the due course of
    justice. It also provides that truth can be
    permitted to be raised as a valid defence if the
    court is satisfied that the defence has been
    raised in the public interest and is a bona
    fide defence. Section 14 deals with the
    powers of the Supreme Court or the High
    Courts to deal with contempt in the face of
    the Court. We have already dealt with Section
    15 which deals with cognizance of the
    criminal contempt other than contempt in
    the face of the Court. Section 17 lays down
    the procedure after cognizance. It is in the
    background of this Act that we have to read
    and analyse the judgment of the Constitution
    Bench.
  36. The Constitution Bench referred to the
    provisions of Article 129 of the Constitution
    of India and also Entry 77 of List I of Seventh
    Schedule and Entry 14 of List III of the
    Seventh Schedule and, thereafter, held as
    follows:—
    “18. The language of Entry 77 of List I
    and Entry 14 of List III of the Seventh
    Schedule demonstrates that the legislative
    power of Parliament and of the State
    Legislature extends to legislate with
    respect to matters connected with
    31
    contempt of court by the Supreme Court
    or the High Court, subject however, to the
    qualification that such legislation cannot
    denude, abrogate or nullify, the power of
    the Supreme Court to punish for contempt
    under Article 129 or vest that power in
    some other court.”
    (emphasis supplied)
  37. This Court referring to Article 142 of
    the Constitution held as follows:—
    “21. It is, thus, seen that the power of
    this Court in respect
    of investigation or punishment of any
    contempt including contempt of itself, is
    expressly made “subject to the provisions
    of any law made in this behalf by
    Parliament” by Article 142(2). However,
    the power to punish for contempt being
    inherent in a court of record, it follows that
    no act of Parliament can take away
    that inherent jurisdiction of the court of
    record to punish for contempt and
    Parliament’s power of legislation on the
    subject cannot, therefore, be so exercised
    as to stultify the status and dignity of the
    Supreme Court and/or the High Courts,
    though such a legislation may serve as a
    guide for the determination of the nature
    of punishment which this Court may
    impose in the case of established
    contempt. Parliament has not enacted any
    law dealing with the powers of the
    Supreme Court with regard to
    investigation and punishment of contempt
    of itself, (we shall refer to Section 15 of the
    Contempt of Courts Act, 1971, later on)
    and this Court, therefore, exercises the
    32
    power to investigate and punish for
    contempt of itself by virtue of the powers
    vested in it under Articles 129 and 142(2)
    of the Constitution of India.”
  38. This Court then made reference to the
    provision of the Contempt of Courts Act,
    1926, the Contempt of Courts Act, 1952 and
    the Contempt of Courts Act, 1971 and
    thereafter held as follows:—
    “29. Section 10 of the 1971 Act like
    Section 2 of the 1926 Act and Section 4 of
    the 1952 Act recognises the power which
    a High Court already possesses as a court
    of record for punishing for contempt of
    itself, which jurisdiction has now the
    sanction of the Constitution also by virtue
    of Article 215. The Act, however, does not
    deal with the powers of the Supreme Court
    to try or punish a contemner for
    committing contempt of the Supreme
    Court or the courts subordinate to it and
    the constitutional provision contained in
    Articles 142(2) and 129 of the Constitution
    alone deal with the subject.”
  39. It would also be pertinent to refer to
    the following observations of the Constitution
    Bench:—
    “38. As already noticed, Parliament by
    virtue of Entry 77 List I is competent to
    enact a law relating to the powers of the
    Supreme Court with regard to contempt of
    itself and such a law may prescribe the
    nature of punishment which may be
    imposed on a contemner by virtue of the
    provisions of Article 129 read with Article
    142(2). Since, no such law has been
    enacted by Parliament, the nature of
    33
    punishment prescribed under the
    Contempt of Courts Act, 1971 may act as
    a guide for the Supreme Court but the
    extent of punishment as prescribed under
    that Act can apply only to the High Courts,
    because the 1971 Act ipso facto does not
    deal with the contempt jurisdiction of the
    Supreme Court, except that Section 15 of
    the Act prescribes procedural mode for
    taking cognizance of criminal contempt by
    the Supreme Court also. Section 15,
    however, is not a substantive provision
    conferring contempt jurisdiction. The
    judgment in Sukhdev Singh case (AIR
    1954 SC 186 : 1954 SCR 454) as regards
    the extent of “maximum punishment”
    which can be imposed upon a contemner
    must, therefore, be construed as dealing
    with the powers of the High Courts only
    and not of this Court in that behalf. We
    are, therefore, doubtful of the validity of
    the argument of the learned Solicitor
    General that the extent of
    punishment which the Supreme Court can
    impose in exercise of its inherent powers
    to punish for contempt of itself and/or of
    subordinate courts can also be only to the
    extent prescribed under the Contempt of
    Courts Act, 1971. We, however, do not
    express any final opinion on that question
    since that issue, strictly speaking, does
    not arise for our decision in this case. The
    question regarding the restriction or
    limitation on the extent of punishment,
    which this Court may award while
    exercising its contempt jurisdiction may
    be decided in a proper case, when so
    raised.”
    34
    xxxxxxxxx
    “40…Article 129 cannot take over the
    jurisdiction of the Disciplinary Committee
    of the Bar Council of the State or the Bar
    Council of India to punish an advocate by
    suspending his licence, which
    punishment can only be imposed after a
    finding of “professional misconduct” is
    recorded in the manner prescribed under
    the Advocates Act and the Rules framed
    thereunder.”
    xxxxxxxxx
    “43. The power of the Supreme Court to
    punish for contempt of court, though quite
    wide, is yet limited and cannot be
    expanded to include the power to
    determine whether an advocate is also
    guilty of “professional misconduct” in a
    summary manner, giving a go-by to the
    procedure prescribed under the Advocates
    Act. The power to do complete justice
    under Article 142 is in a way, corrective
    power, which gives preference to equity
    over law but it cannot be used to deprive a
    professional lawyer of the due process
    contained in the Advocates Act, 1961 by
    suspending his licence to practice in a
    summary manner while dealing with a
    case of contempt of court.”
    xxxxxxxxx
    “57. In a given case, an advocate found
    guilty of committing contempt of court
    may also be guilty of committing
    “professional misconduct”, depending
    upon the gravity or nature of his
    contumacious conduct, but the two
    35
    jurisdictions are separate and distinct and
    exercisable by different forums by
    following separate and distinct
    procedures. The power to punish an
    advocate by suspending his licence or by
    removal of his name from the roll of the
    State Bar Council for proven professional
    misconduct vests exclusively in the
    statutory authorities created under the
    Advocates Act, 1961, while the jurisdiction
    to punish him for committing contempt of
    court vests exclusively in the courts.”
  40. A careful analysis of the Constitution
    Bench decision leaves no manner of doubt
    that Section 15 of the Act is not a substantive
    provision conferring contempt jurisdiction.
    The Constitution Bench finally left the
    question as to whether the maximum
    sentence prescribed by the Act binds the
    Supreme Court open. The observations made
    in Para 38 referred to above clearly indicate
    that the Constitution Bench was of the view
    that the punishment prescribed in the Act
    could only be a guideline and nothing more.
    Certain observations made in this judgment
    that the Court exceeded its jurisdiction
    in Vinay Chandra Mishra’s case (supra) by
    taking away the right of practice for a period
    of 3 years have to be read in the context that
    the Apex Court held that Article 129 cannot
    take over the jurisdiction of the Bar Council
    of the State or the Bar Council of India to
    punish an advocate. These observations, in
    our opinion have to be read with the other
    observations quoted hereinabove which
    clearly show that the Constitution Bench
    held that “Parliament has not enacted
    any law dealing with the powers of the
    36
    Supreme Court with regard to
    investigation and punishment of
    contempt of itself ’. The Court also held
    that Section 15 is not a substantive provision
    conferring contempt jurisdiction and,
    therefore, is only a procedural section
    especially in so far as suo moto contempts
    are concerned. It is thus clear that the
    powers of the Supreme Court to punish for
    contempt committed of itself is a power not
    subject to the provisions of the Act.
    Therefore, the only requirement is to follow a
    procedure which is just, fair and in
    accordance with the rules framed by this
    Court.
  41. As far as the observations made in the
    case of Pallav Sheth v. Custodian10 are
    concerned, this Court in that case was only
    dealing with the question whether contempt
    can be initiated after the limitation
    prescribed in the Contempt of Courts Act has
    expired and the observations made therein
    have to be read in that context only. Relevant
    portion of Para 30 of the Pallav Seth’s
    case (supra) reads as follows:
    “30. There can be no doubt that both
    this Court and High Courts are Courts of
    Records 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
    be 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
    37
    can be little doubt that such law should
    not be regarded as having been validly
    enacted. It, however, appears to us that
    providing for the quantum of punishment
    ow 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.”
    The aforesaid finding clearly indicates that
    the Court held that any law which stultifies
    or abrogates the power of the Supreme Court
    under Article 129 of the Constitution or of the
    High Courts under Article 215 of the
    Constitution, could not be said to be validly
    enacted. It however, went on to hold that
    providing the quantum of punishment or a
    period of limitation would not mean that the
    powers of the Court under Article 129 have
    been stultified or abrogated. We are not going
    into the correctness or otherwise of this
    judgment but it is clear that this judgment
    only dealt with the issue whether the
    Parliament could fix a period of limitation to
    initiate the proceedings under the Act.
    Without commenting one way or the other
    on Pallav Seth’s case (supra) it is clear that
    the same has not dealt with the powers of
    this Court to issue suo motu notice of
    contempt.
  42. In view of the above discussion we are
    clearly of the view that the powers of the
    Supreme Court to initiate contempt are not
    in any manner limited by the provisions of
    the Act. This Court is vested with the
    38
    constitutional powers to deal with the
    contempt. Section 15 is not the source of the
    power to issue notice for contempt. It only
    provides the procedure in which such
    contempt is to be initiated and this procedure
    provides that there are three ways of
    initiating a contempt – (i) suo motu (ii) on the
    motion by the Advocate General/Attorney
    General/Solicitor General and (iii) on the
    basis of a petition filed by any other person
    with the consent in writing of the Advocate
    General/Attorney General/Solicitor General.
    As far as suo motu petitions are concerned,
    there is no requirement for taking consent of
    anybody because the Court is exercising its
    inherent powers to issue notice for contempt.
    This is not only clear from the provisions of
    the Act but also clear from the Rules laid
    down by this Court.”
  43. From the perusal of various judgments of this Court,
    including those of the Constitution Benches, it could be seen,
    that the source of power of this Court for proceeding for an
    action of contempt is under Article 129. It has further been
    held, that power of this Court to initiate contempt is not in any
    manner limited by the provisions of the Contempt of Courts
    Act, 1971. It has been held, that the Court is vested with the
    constitutional powers to deal with the contempt and Section
    15 is not the source of the power to issue notice for contempt.
    39
    It only provides the procedure in which such contempt is to be
    initiated. It has been held, that insofar as suo motu petitions
    are concerned, the Court can very well initiate the proceedings
    suo motu on the basis of information received by it. The only
    requirement is that the procedure as prescribed in the
    judgment of P.N. Duda (supra) has to be followed. In the
    present case, the same has undoubtedly been followed. It is
    also equally settled, that as far as the suo motu petitions are
    concerned, there is no requirement for taking consent of
    anybody, including the learned Attorney General because the
    Court is exercising its inherent powers to issue notice for
    contempt. It is equally well settled, that once the Court takes
    cognizance, the matter is purely between the Court and the
    contemnor. The only requirement is that, the procedure
    followed is required to be just and fair and in accordance with
    the principles of natural justice. In the present case, the notice
    issued to the alleged contemnors clearly mentions the tweets
    on the basis of which the Court is proceeding suo motu. The
    alleged contemnor No.1 has also clearly understood the basis
    40
    on which the Court is proceeding against him as is evident
    from the elaborate affidavit-in-reply filed by him.
  44. Before we advert to the facts of the present case, let us
    examine the legal position as is enunciated in the various
    judgments of this Court.
  45. In the case of Brahma Prakash Sharma (supra), the
    Constitution Bench observed thus:
    “It admits of no dispute that the summary
    jurisdiction exercised by superior courts
    in punishing contempt of their authority
    exists for the purpose of preventing
    interference with the course of justice and
    for maintaining the authority of law as is
    administered in the courts. It would be
    only repeating what has been said so often
    by various Judges that the object of
    contempt proceedings is not to afford
    protection to Judges personally from
    imputations to which they may be exposed
    as individuals; it is intended to be a
    protection to the public whose interests
    would be very much affected if by the act
    or conduct of any party, the authority of
    the court is lowered and the sense of
    confidence which people have in the
    administration of justice by it is weakened.
    41
  46. It could thus be seen, that the Constitution Bench has
    held, that the summary jurisdiction exercised by superior
    courts in punishing contempt of their authority exists for the
    purpose of preventing interference with the course of justice
    and for maintaining the authority of law as is administered in
    the courts; that the object of contempt proceedings is not to
    afford protection to judges personally from imputations to
    which they may be exposed as individuals. It has been held,
    that it is intended to be a protection to the public whose
    interests would be very much affected if by the act or conduct
    of any party, the authority of the court is lowered and the sense
    of confidence which people have in the administration of
    justice by it is weakened. The Constitution Bench further
    observed:
    “There are indeed innumerable ways by
    which attempts can be made to hinder or
    obstruct the due administration of justice
    in courts. One type of such interference is
    found in cases where there is an act or
    publication which “amounts to
    scandalising the court itself” an
    expression which is familiar to English
    lawyers since the days of Lord Hardwicke
    42
    [ Vide In re Read and Huggonson, (1742) 2
    Atk. 469, 471] . This scandalising might
    manifest itself in various ways but, in
    substance, it is an attack on individual
    Judges or the court as a whole with or
    without reference to particular cases
    casting unwarranted and defamatory
    aspersions upon the character or ability of
    the Judges. Such conduct is punished as
    contempt for this reason that it tends to
    create distrust in the popular mind and
    impair confidence of people in the courts
    which are of prime importance to the
    litigants in the protection of their rights
    and liberties.”
  47. The Constitution Bench thus holds, that a publication
    which attacks on individual judges or the court as a whole with
    or without reference to particular case, casting unwarranted
    and defamatory aspersions upon the character or ability of the
    judges, would come within the term of scandalizing the Court.
    It is held, that such a conduct tends to create distrust in the
    popular mind and impair the confidence of the people in the
    courts, which are of prime importance to the litigants in the
    protection of their rights and liberties. It has been held, that
    it is not necessary to prove affirmatively, that there has been
    43
    an actual interference with the administration of justice by
    reason of such defamatory statement and it is enough if it is
    likely, or tends in any way, to interfere with the proper
    administration of justice.
  48. In the case of In re Hira Lal Dixit and two others6
    ,
    the Constitution Bench was considering a leaflet distributed in
    the court premises printed and published by the said Hira Lal
    Dixit. He was the applicant in one of the writ petitions which
    had been filed in the Supreme Court challenging the validity of
    U.P. Road Transport Act, 1951. The leaflet though contained
    a graphic account of the harassment and indignity said to
    have been meted out to the writer by the State Officers and the
    then State Minister of Transport in connection with the
    cancellation and eventual restoration of his license in respect
    of a passenger bus, also contained the following passage:
    “The public has full and firm faith in the
    Supreme Court, but sources that are in
    the know say that the Government acts
    with partiality in the matter of
    appointment of those Hon’ble Judges as
    Ambassadors, Governors, High
    6
    (1955) 1 SCR 677
    44
    Commissioners, etc., who give judgments
    against Government but this has so far not
    made any difference in the firmness and
    justice of the Hon’ble Judges”.
    It will be relevant to refer to the following
    observation of the Constitution Bench in the said case:
    “Learned counsel for the respondent, Hira
    Lal Dixit, maintained that the passage in
    question was perfectly innocuous and only
    expressed a laudatory sentiment towards
    the Court and that such flattery could not
    possibly have the slightest effect on the
    minds of the Judges of this august
    tribunal. We do not think flattery was the
    sole or even the main object with which
    this passage was written or with which it
    was published at the time when the
    hearing of the appeals was in progress. It
    no doubt begins with a declaration of
    public faith in this Court but this is
    immediately followed by other words
    connected with the earlier words by the
    significant conjunction “but”. The words
    that follow are to the effect that sources
    that are in the know say that the
    Government acts with partiality in the
    matter of appointment of those Judges as
    Ambassadors, Governors, High
    Commissioners, etc., who give judgments
    against the Government. The plain
    meaning of these words is that the Judges
    who decide against the Government do not
    get these high appointments. The
    necessary implication of these words is
    45
    that the Judges who decide in favour of the
    Government are rewarded by the
    Government with these appointments. The
    attitude of the Government is thus
    depicted surely with a purpose and that
    purpose cannot but be to raise in the
    minds of the reader a feeling that the
    Government, by holding out high hopes of
    future employment, encourages the
    Judges to give decisions in its favour. This
    insinuation is made manifest by the words
    that follow, namely, “this has so far not
    made any difference in the firmness and
    justice of the Hon’ble Judges”. The linking
    up of these words with the preceding
    words by the conjunction “but” brings into
    relief the real significance and true
    meaning of the earlier words. The passage
    read as a whole clearly amounts to this:
    “Government disfavours Judges who give
    decisions against it but favours those
    Judges with high appointments who
    decide in its favour: that although this is
    calculated to tempt Judges to give
    judgments in favour of the Government it
    has so far not made any difference in the
    firmness and justice of the Judges”. The
    words “so far” are significant. What, we
    ask, was the purpose of writing this
    passage and what was the object of the
    distribution of the leaflet in the Court
    premises at a time when the Court was in
    the midst of hearing the appeals? Surely,
    there was hidden in the offending passage
    a warning that although the Judges have
    “so far” remained firm and resisted the
    temptation of deciding cases in favour of
    Government in expectation of getting high
    46
    appointments, nevertheless, if they decide
    in favour of the Government on this
    occasion knowledgeable people will know
    that they had succumbed to the
    temptation and had given judgment in
    favour of the Government in expectation of
    future reward in the shape of high
    appointments of the kind mentioned in the
    passage. The object of writing this
    paragraph and particularly of publishing
    it at the time it was actually done was
    quite clearly to affect the minds of the
    Judges and to deflect them from the strict
    performance of their duties. The offending
    passage and the time and place of its
    publication certainly tended to hinder or
    obstruct the due administration of justice
    and is a contempt of Court.”
    A perusal of the aforesaid observation of the
    Constitution Bench would reveal, that though the said
    passage/paragraph begins with a statement, that ‘the public
    has full and firm faith in the Supreme Court…’ and ends with,
    ‘but this has so far not made any difference in the firmness
    and justice of the Hon’ble Judges’, the Court found, that if the
    statement in the said passage/paragraph was read in entirety
    and the timing and the manner in which it was published, it
    was clear, that it was done to affect the minds of the judges
    and to deflect them from the strict performance of their duties.
    47
    The Court came to the conclusion, that the offending passage
    and the time and place of its publication certainly tended to
    hinder or obstruct the due administration of justice and was a
    contempt of Court.
    While holding him guilty and rejecting his qualified
    apology, the Constitution Bench observed thus:
    “It is well established, as was said by this
    Court in Brahma Prakash Sharma and
    Others v. The State of Uttar Pradesh
    (supra), that it is not necessary that there
    should in fact be an actual interference
    with the course of administration of justice
    but that it is enough if the offending
    publication is likely or if it tends in any
    way to interfere with the proper
    administration of law. Such insinuations
    as are implicit in the passage in question
    are derogatory to the dignity of the Court
    and are calculated to undermine the
    confidence of the people in the integrity of
    the Judges. Whether the passage is read
    as fulsome flattery of the Judges of this
    Court or is read as containing the
    insinuations mentioned above or the rest
    of the leaflet which contains an attack on
    a party to the pending proceedings is
    taken separately it is equally
    contemptuous of the Court in that the
    object of writing it and the time and place
    48
    of its publication were, or were calculated,
    to deflect the Court from performing its
    strict duty, either by flattery or by a veiled
    threat or warning or by creating prejudice
    in its mind against the State. We are,
    therefore, clearly of opinion and we hold
    that the respondent Hira Lal Dixit by
    writing the leaflet and in particular the
    passage in question and by publishing it
    at the time and place he did has
    committed a gross contempt of this Court
    and the qualified apology contained in his
    affidavit and repeated by him through his
    counsel cannot be taken as sufficient
    amends for his misconduct.”
    A perusal of the aforesaid paragraph would show,
    that this Court reiterating the law as laid down in Brahma
    Prakash Sharma (supra) held, that it is not necessary that
    there should in fact be an actual interference with the course
    of administration of justice but that it is enough if the offending
    publication is likely or if it tends in any way to interfere with
    the proper administration of law. Such insinuations as are
    implicit in the passage in question are derogatory to the dignity
    of the Court and are calculated to undermine the confidence of
    the people in the integrity of the Judges. It is further held, that
    49
    whether the passage is read as fulsome flattery of the Judges
    of this Court or is read as containing the insinuations or the
    rest of the leaflet which contains an attack on a party to the
    pending proceedings is taken separately, it is equally
    contemptuous of the Court inasmuch as, the object of writing
    it and the time and place of its publication were calculated to
    deflect the Court from performing its strict duty, either by
    flattery or by a veiled threat or warning or by creating prejudice
    in its mind against the State.
  49. This Court in E.M. Sankaran Namboodripad vs. T.
    Narayanan Nambiar7 was considering the appeal by the
    appellant therein, who was a former Chief Minister, against his
    conviction and sentence by the Kerala High Court for contempt
    of court. The said appellant had said in the press conference
    that the judges are guided and dominated by class hatred,
    class interests and class prejudices and where the evidence is
    balanced between a well dressed pot-bellied rich man and a
    poor-ill-dressed and illiterate person, the judge instinctively
    7
    (1970) 2 SCC 325
    50
    favours the former. He had further stated that the election of
    judges would be a better arrangement. There were certain
    other statements made by him in the press conference. Chief
    Justice Hidayatullah observed thus:
    “6. The law of contempt stems from the
    right of the courts to punish by
    imprisonment or fines persons guilty of
    words or acts which either obstruct or
    tend to obstruct the administration of
    justice. This right is exercised in India by
    all courts when contempt is committed in
    facie curaie and by the superior courts on
    their own behalf or on behalf of courts
    subordinate to them even if committed
    outside the courts. Formerly, it was
    regarded as inherent in the powers of a
    court of record and now by the
    Constitution of India, it is a part of the
    powers of the Supreme Court and the
    High Courts. There are many kinds of
    contempts. The chief forms of contempt
    are insult to Judges, attacks upon them,
    comment on pending proceedings with a
    tendency to prejudice fair trial,
    obstruction to officers of courts, witnesses
    or the parties, abusing the process of the
    court, breach of duty by officers
    connected with the court and
    scandalising the Judges or the courts.
    The last form occurs, generally speaking,
    when the conduct of a person tends to
    bring the authority and administration of
    the law into disrespect or disregard. In
    this conduct are included all acts which
    51
    bring the court into disrepute or
    disrespect or which offend its dignity,
    affront its majesty or challenge its
    authority. Such contempt may be
    committed in respect of a Single Judge or
    a single court but may, in certain
    circumstances, be committed in respect of
    the whole of the judiciary or judicial
    system. The question is whether in the
    circumstances of this case the offence was
    committed.”
  50. C.J. Hidayatullah observed that, when the conduct of
    a person tends to bring the authority and administration of the
    law into disrespect or disregard, the same would amount to
    scandalising the Court. This conduct includes all acts which
    bring the court into disrepute or disrespect or which offend its
    dignity, affront its majesty or challenge its authority.
    Upholding the conviction, this Court observed thus:
    “34. ……. On the other hand, we cannot
    ignore the occasion (a press conference),
    the belief of the people in his word as a
    Chief Minister and the ready ear which
    many in his party and outside would give
    to him. The mischief that his words would
    cause need not be assessed to find him
    guilty. The law punishes not only acts
    which do in fact interfere with the courts
    and administration of justice but also
    those which have that tendency, that is to
    say, are likely to produce a particular
    52
    result. Judged from the angle of courts
    and administration of justice, there is not
    a semblance of doubt in our minds that
    the appellants his guilty of contempt of
    court……”
  51. In the case of C. K. Daphtary & Ors. vs. O. P. Gupta
    & Ors.
    8 this Court was considering a motion made under
    Article 129 of the Constitution by the President of the Bar
    Association and some other Advocates. By the said motion,
    the petitioners therein had brought to the notice of this Court
    the pamphlet printed and published by the respondent No.1
    therein, wherein scurrilous aspersions were made against the
    judges of this Court. It will be relevant to refer to the following
    observations of this Court:
    “We are unable to agree with him that a
    scurrilous attack on a Judge in respect of
    a judgment or past conduct has no
    adverse effect on the due administration of
    justice. This sort of attack in a country like
    ours has the inevitable effect of
    undermining the confidence of the public
    in the Judiciary. If confidence in the
    Judiciary goes, the due administration of
    justice definitely suffers.”
    8
    (1971) 1 SCC 626
    53
  52. It could thus be seen, that it has been clearly held by
    the Constitution Bench, that a scurrilous attack on a judge in
    respect of a judgment or past conduct has an adverse effect on
    the due administration of justice. The Constitution Bench has
    unambiguously held, that this sort of attack in a country like
    ours has the inevitable effect of undermining the confidence of
    the public in the Judiciary and if the confidence in the
    Judiciary goes, the due administration of justice definitely
    suffers. In the said case, after holding the contemnor O.P.
    Gupta guilty for contempt, this Court refused to accept the
    apology tendered by him finding that the apology coupled with
    fresh abuses can hardly be taken note of. However, taking a
    lenient view, this Court sentenced him to suffer simple
    imprisonment for two months.
  53. In the case of Baradakanta Mishra (supra), a
    disgruntled judicial officer aggrieved by the adverse orders of
    the High Court on the administrative side made vilificatory
    allegations in a purported appeal to the Governor. Considering
    the contention of the appellant, that the allegations made
    54
    against the judges pertained to the acts of the judge in
    administrative capacity and not acting in judicial capacity, the
    Constitution Bench observed thus:
    “43. We have not been referred to any
    comprehensive definition of the expression
    “administration of justice”. But
    historically, and in the minds of the
    people, administration of justice is
    exclusively associated with the Courts of
    justice constitutionally established. Such
    Courts have been established throughout
    the land by several statutes. The Presiding
    Judge of a Court embodies in himself the
    Court, and when engaged in the task of
    administering justice is assisted by a
    complement of clerks and ministerial
    officers whose duty it is to protect and
    maintain the records, prepare the writs,
    serve the processes etc. The acts in which
    they are engaged are acts in aid of
    administration of justice by the Presiding
    Judge. The power of appointment of clerks
    and ministerial officers involves
    administrative control by the Presiding
    Judge over them and though such control
    is described as administrative to
    distinguish it from the duties of a judge
    sitting in the seat of justice, such control
    is exercised by the Judge as a judge in the
    course of judicial administration. Judicial
    administration is an integrated function of
    the Judge and cannot suffer any
    55
    dissection so far as maintenance of high
    standards of rectitude in judicial
    administration is concerned. The whole
    set up of a court is for the purpose of
    administration of justice, and the control
    which the Judge exercises over his
    assistants has also the object of
    maintaining the purity of administration
    of justice. These observations apply to all
    courts of justice in the land whether they
    are regarded as superior or inferior courts
    of justice.
  54. Courts of justice have, in accordance
    with their constitution, to perform
    multifarious functions for due
    administration of Justice. Any lapse from
    the strict standards of rectitude in
    performing these functions is bound to
    affect administration of justice which is a
    term of wider import than mere
    adjudication of causes from the seat of
    justice.
  55. In a country which has a hierarchy of
    Courts one above the other, it is usual to
    find that the one which is above is
    entrusted with disciplinary control over
    the one below it. Such control is devised
    with a view to ensure that the lower Court
    functions properly in its judicial
    administration. A Judge can foul judicial
    administration by misdemeanours while
    engaged in the exercise of the functions of
    a judge. It is therefore, as important for the
    56
    superior Court, to be vigilant about the
    conduct and behaviour of the Subordinate
    Judge as a judge, as it is to administer the
    law, because both functions are essential
    for administration of justice. The Judge of
    the superior Court in whom this
    disciplinary control is vested functions as
    much as a judge in such matters as when
    he hears and disposes of cases before him.
    The procedures may be different. The
    place where he sits may be different. But
    the powers are exercised in both instances
    in due course of judicial administration. If
    superior Courts neglect to discipline
    subordinate Courts, they will fail in an
    essential function of judicial
    administration and bring the whole
    administration of justice into contempt
    and disrepute. The mere function of
    adjudication between parties is not the
    whole of administration of justice for any
    court. It is important to remember that
    disciplinary control is vested in the Court
    and not in a judge as a private individual.
    Control, therefore, is a function as
    conducive to proper administration of
    justice as laying down the law or doing
    justice between the parties.
  56. What is commonly described as an
    administrative function has been, when
    vested in the High Court, consistently
    regarded by the statutes as a function in
    the administration of justice. Take for
    example the Letters Patent for the High
    57
    Court of Calcutta, Bombay and Madras.
    Clause 8 thereof authorises and empowers
    the Chief Justice from time to time as
    occasion may require “to appoint so many
    and such clerks and other ministerial
    officers it shall be found necessary for the
    administration of justice and the due
    execution of all the powers and authorities
    granted and committed to the said High
    Court by these Letters Patent”. It is
    obvious that this authority of the Chief
    Justice to appoint clerks and ministerial
    officers for the administration of justice
    implies an authority to control them in the
    interest of administration of justice. This
    controlling function which is commonly
    described as an administrative function is
    designed with the primary object of
    securing administration of justice.
    Therefore, when the Chief Justice
    appoints ministerial officers and assumes
    disciplinary control over them, that is a
    function which though described as
    administrative is really in the course of
    administration of justice. Similarly Section
    9 of the High Courts Act, 1861 while
    conferring on the High Courts several
    types of jurisdictions and powers says that
    all such jurisdictions and powers are “for
    and in relation to the administration of
    justice in the Presidency for which it is
    established”. Section 106 of the
    Government of India Act, 1915 similarly
    shows that the several jurisdictions of the
    High Court and all their powers and
    58
    authority are “in relation to the
    administration of justice including power to
    appoint clerks and other ministerial officers
    of the Court”. Section 223 of the
    Government of India Act, 1935 preserves
    the jurisdictions of the existing High
    Courts and the respective powers of the
    Judges thereof in relation to the
    administration of justice in the Court.
    Section 224 of that Act declares that the
    High Court shall have superintendence
    over all courts in India for the time being
    subject to its appellate jurisdiction and
    this superintendence, it is now settled,
    extends both to administrative and
    judicial functions of the subordinate
    Courts. When we come to our Constitution
    we find that whereas Articles 225 and 227
    preserve and to some extent extend these
    powers in relation to administration of
    justice, Article 235 vests in the High Court
    the control over District Courts and courts
    subordinate thereto. In the State of West
    Bengal v. Nripendra Nath Bagchi [AIR
    1966 SC 447 : (1966) 1 SCR 771 : (1968)
    1 Lab LJ 270] this Court has pointed out
    that control under Article 235 is control
    over the conduct and discipline of the
    Judges. That is a function which, as we
    have already seen, is undoubtedly
    connected with administration of justice.
    The disciplinary control over the
    misdemeanours of the subordinate
    judiciary in their judicial administration is
    a function which the High Court must
    59
    exercise in the interest of administration
    of justice. It is a function which is
    essential for the administration of justice
    in the wide connotation it has received
    and, therefore, when the High Court
    functions in a disciplinary capacity, it only
    does so in furtherance of administration of
    justice.
  57. We thus reach the conclusion that the
    courts of justice in a State from the
    highest to the lowest are by their
    constitution entrusted with functions
    directly connected with the administration
    of justice, and it is the expectation and
    confidence of all those who have or are
    likely to have business therein that the
    courts perform all their functions on a
    high level of rectitude without fear or
    favour, affection or ill-will.”
  58. It could thus be seen, that the Constitution Bench
    holds, that the judges apart from adjudication of causes from
    the seat of justice are also required to discharge various
    functions including the disciplinary control. It has been held,
    that the judge of the superior Court in whom the disciplinary
    control is vested functions as much as a Judge in such
    matters, as when he hears and disposes of cases before him,
    though the procedures may be different or the place where he
    60
    sits may be different. It has been held, that in both the cases,
    the powers are exercised in due course of judicial
    administration. It has been held, that if superior Courts
    neglect to discipline subordinate courts, they will fail in an
    essential function of judicial administration and bring the
    whole administration of justice into contempt and disrepute. It
    has been held, that mere function of adjudication between
    parties is not the whole of administration of justice for any
    court.
  59. Quoting the opinion of Wilmot C.J. in the case of Rex
    v. Almon9, the Constitution Bench observed thus:
    “Further explaining what he meant by the
    words “authority of the Court”, he
    observed “the word ‘authority’ is
    frequently used to express both the right
    of declaring the law, which is properly
    called jurisdiction, and of enforcing
    obedience to it, in which sense it is
    equivalent to the word power: but by the
    word ‘ authority’, I do not mean that
    coercive power of the Judges, but the
    deference and respect which is paid to
    them and their acts, from an opinion of
    their justice and integrity”.
    9 1765 Wilmot’s Notes of Opinions, 243: 97 ER 94
    61
  60. The Constitution Bench therefore approves the
    opinion of Wilmot C.J., that by the word ‘authority’, it is not
    meant as coercive power of the Judges, but the deference and
    respect which is paid to them and their acts, from an opinion
    of their justice and integrity.
  61. It may also be relevant to refer the following
    observations of the Constitution Bench in the case of
    Baradakanta Mishra (supra):
    “49. Scandalization of the Court is a
    species of contempt and may take several
    forms. A common form is the vilification of
    the Judge. When proceedings in contempt
    are taken for such vilification the question
    which the Court has to ask is whether the
    vilification is of the Judge as a judge.
    (See Queen v. Gray), [(1900) 2 QB 36, 40]
    or it is the vilification of the Judge as an
    individual. If the latter the Judge is left to
    his private remedies and the Court has no
    power to commit for contempt. If the
    former, the Court will proceed to exercise
    the jurisdiction with scrupulous care and
    in cases which are clear and beyond
    reasonable doubt. Secondly, the Court will
    have also to consider the degree of harm
    caused as affecting administration of
    justice and, if it is slight and beneath
    notice, Courts will not punish for
    62
    contempt. This salutary practice is
    adopted by Section 13 of the Contempt of
    Courts Act, 1971. The jurisdiction is not
    intended to uphold the personal dignity of
    the Judges. That must rest on surer
    foundations. Judges rely on their conduct
    itself to be its own vindication.
  62. But if the attack on the Judge
    functioning as a judge substantially
    affects administration of justice it becomes
    a public mischief punishable for
    contempt, and it matters not whether
    such an attack is based on what a judge is
    alleged to have done in the exercise of his
    administrative responsibilities. A judge’s
    functions may be divisible, but his
    integrity and authority are not divisible in
    the context of administration of justice. An
    unwarranted attack on him for corrupt
    administration is as potent in doing public
    harm as an attack on his adjudicatory
    function.”
  63. As rightly pointed out by Shri Dave, the Constitution
    Bench holds, that when proceedings in contempt are taken for
    vilification of a judge, the question that the Court will ask itself
    is, whether the vilification is of the judge as a Judge or it is the
    vilification of the judge as an individual. In the latter case, the
    judge is left to his private remedies and the Court will have no
    63
    power to commit for contempt. However, in the former case,
    the Court will proceed to exercise the jurisdiction with
    scrupulous care and in cases which are clear and beyond
    reasonable doubt. It has been held, that the jurisdiction is not
    intended to uphold the personal dignity of the Judges.
    However, if the attack on the Judge functioning as a Judge
    substantially affects administration of justice, it becomes a
    public mischief punishable for contempt and it does not matter
    whether such an attack is based on what a judge is alleged to
    have done in the exercise of his administrative responsibilities.
    It has been held, a Judge’s functions may be divisible, but his
    integrity and authority are not divisible in the context of
    administration of justice. It has been held, an unwarranted
    attack on him for corrupt administration is as potent in doing
    public harm as an attack on his adjudicatory function.
  64. The Constitution Bench came to the conclusion, that
    a vilificatory criticism of a Judge functioning as a Judge even
    in purely administrative or non- adjudicatory matters amounts
    to ‘criminal contempt’.
    64
  65. Upholding the conviction as recorded by the High
    Court, taking into consideration the peculiar facts, the
    Constitution Bench modified the sentence by directing him to
    pay a fine of Rs.1,000/- or in default to suffer simple
    imprisonment for three months.
  66. Shri Dave has strongly relied on the concurring
    opinion of Krishna Iyer, J. in Baradakanta Mishra (supra) in
    the following paragraph
    “88. Even so, if Judges have frailities — after
    all they are human — they need to be
    corrected by independent criticism. If the
    judicature has serious shortcomings which
    demand systemic correction through
    socially-oriented reform initiated through
    constructive criticism, the contempt power
    should not be an interdict. All this, far from
    undermining the confidence of the public in
    Courts, enhances it and, in the last analysis,
    cannot be repressed by indiscriminate resort
    to contempt power. Even bodies like the Law
    Commission or the Law Institute and
    researchers, legal and sociological, may run
    “contempt” risks because their professional
    work sometimes involves unpleasant
    criticism of judges, judicial processes and the
    system itself and thus hover perilously
    around the periphery of the law if widely
    construed. Creative legal journalism and
    activist statesmanship for judicial reform
    65
    cannot be jeopardised by an undefined
    apprehension of contempt action.”
  67. Relying on the above paragraph, it is his submission,
    that the judges also have frailities. According to him, what the
    alleged contemnor has done is to bring to the notice of this
    Court the serious shortcomings, which demand systemic
    correction. According to him, what he has done is far from
    undermining the confidence of the public in Court but
    enhances it and therefore, cannot be repressed by
    indiscriminate resort to contempt power. We will deal with
    this submission in the later part of our judgment.
  68. Shri Dave has strongly relied on the judgment of this
    Court in Re: S. Mulgaokar (supra). It will be relevant to refer
    to the following observations in the judgment of Beg, C.J.
    “16. The judiciary cannot be immune
    from criticism. But, when that criticism is
    based on obvious distortion or gross misstatement and made in a manner which
    seems designed to lower respect for the
    judiciary and destroy public confidence in
    it, it cannot be ignored. I am not one of
    those who think that an action for
    contempt of court, which is discretionary,
    should be frequently or lightly taken. But,
    at the same time, I do not think that we
    66
    should abstain from using this weapon
    even when its use is needed to correct
    standards of behaviour in a grossly and
    repeatedly erring quarter. It may be better
    in many cases for the judiciary to adopt a
    magnanimously charitable attitude even
    when utterly uncharitable and unfair
    criticism of its operations is made out of
    bona fide concern for improvement. But,
    when there appears some scheme and
    design to bring about results which must
    damage confidence in our judicial system
    and demoralize Judges of the highest
    Court by making malicious attacks,
    anyone interested in maintaining high
    standards of fearless, impartial, and
    unbending justice will feel perturbed. I
    sincerely hope that my own undisguised
    perturbation at what has been taking
    place recently is unnecessary. One may be
    able to live in a world of yogic detachment
    when unjustified abuses are hurled at
    one’s self personally, but, when the
    question is of injury to an institution, such
    as the highest Court of justice in the land,
    one cannot overlook its effects upon
    national honour and prestige in the comity
    of nations. Indeed, it becomes a matter
    deserving consideration of all seriousminded people who are interested in
    seeing that democracy does not flounder
    or fail in our country. If fearless and
    impartial courts of justice are the bulwark
    of a healthy democracy, confidence in
    them cannot be permitted to be impaired
    by malicious attacks upon them. However,
    as we have not proceeded further in this
    case, I do not think that it would be fair to
    67
    characterize anything written or said in
    the Indian Express as really malicious or
    ill-intentioned and I do not do so. We have
    recorded no decision on that although the
    possible constructions on what was
    written there have been indicated above.”
  69. Learned Chief Justice states, that the judiciary cannot
    be immune from criticism. However, when that criticism is
    based on obvious distortion or gross mis-statement and made
    in a manner which seems designed to lower respect for the
    judiciary and destroy public confidence in it, it cannot be
    ignored. He opines, that an action for contempt of Court
    should not be frequently or lightly taken. But, at the same
    time, the Court should not abstain from using this weapon
    even when its use is needed to correct standards of behaviour
    in a grossly and repeatedly erring quarter. The learned C.J.
    further observed, that it may be better in many cases for the
    judiciary to adopt a magnanimously charitable attitude, even
    when utterly uncharitable and unfair criticism of its operations
    is made out of bona fide concern for improvement. However,
    when there appears some scheme and design to bring about
    68
    results which must damage confidence in our judicial system
    and demoralize Judges of the highest court by making
    malicious attacks, anyone interested in maintaining high
    standards of fearless, impartial and unbending justice will feel
    perturbed. He opines, that when the question is of injury to an
    institution, such as the highest Court of justice in the land,
    one cannot overlook its effects upon national honour and
    prestige in the comity of nations. He opined, that if fearless
    and impartial courts of justice are the bulwark of a healthy
    democracy, confidence in them cannot be permitted to be
    impaired by malicious attacks upon them.
  70. The aforesaid observations are important though the
    Court, for different reasons, did not decide to proceed against
    the alleged contemnor.
  71. It will be relevant to refer to the following observations
    of Krishna Iyer, J. in Re: S. Mulgaokar (supra):
    “26. What then are the complex of
    considerations dissuasive of punitive
    action? To be exhaustive is a baffling
    project; to be pontifical is to be
    impractical; to be flexible is to be realistic.
    What, then, are these broad guidelines —
    69
    not a complete inventory, but
    precedentially validated judicial norms?
  72. The first rule in this branch of
    contempt power is a wise economy of use
    by the Court of this branch of its
    jurisdiction. The Court will act with
    seriousness and severity where justice is
    jeopardised by a gross and/or unfounded
    attack on the Judges, where the attack is
    calculated to obstruct or destroy the
    judicial process. The Court is willing to
    ignore, by a majestic liberalism, trifling
    and venial offences — the dogs may bark,
    the caravan will pass. The Court will not
    be prompted to act as a result of an easy
    irritability. Much rather, it shall take a
    noetic look at the conspectus of features
    and be guided by a constellation of
    constitutional and other considerations
    when it chooses to use, or desist from
    using, its power of contempt.
  73. The second principle must be to
    harmonise the constitutional values of free
    criticism, the Fourth Estate included, and
    the need for a fearless curial process and
    its presiding functionary, the Judge. A
    happy balance has to be struck, the
    benefit of the doubt being given generously
    against the Judge, slurring over marginal
    deviations but severely proving the
    supremacy of the law over pugnacious,
    vicious, unrepentant and malignant
    contemners, be they the powerful press,
    70
    gang-up of vested interests, veteran
    columnists of Olympian
    establishmentarians. Not because the
    Judge, the human symbol of a high value,
    is personally armoured by a regal privilege
    but because “be you — the contemner —
    ever so high, the law — the People’s
    expression of justice — is above you”.
    Curial courage overpowers arrogant might
    even as judicial benignity forgives errant
    or exaggerated critics. Indeed, to criticise
    the Judge fairly, albeit fiercely, is no crime
    but a necessary right, twice blessed in a
    democracy For, it blesseth him that gives
    and him that takes. Where freedom of
    expression, fairly exercised, subserves
    public interest in reasonable measure,
    public justice cannot gag it or manacle it,
    constitutionally speaking A free people are
    the ultimate guarantors of fearless justice.
    Such is the cornerstone of our
    Constitution; such is the touchstone of
    our Contempt Power, oriented on the
    confluence of free speech and fair justice
    which is the scriptural essence of our
    Fundamental Law. Speaking of the social
    philosophy and philosophy of law in an
    integrated manner as applicable to
    contempt of court, there is no conceptual
    polarity but a delicate balance, and
    judicial “sapience” draws the line. As it
    happens, our Constitution-makers
    foresaw the need for balancing all these
    competing interests. Section 2(1)(c) of the
    Contempt of Courts Act, 1971 provides:
    71
    “ ‘Criminal contempt’ means the
    publication (whether by words, spoken
    or written, or by signs, or by visible
    representations, or otherwise) of any
    matter or the doing of any other act
    whatsoever which—
    (i) scandalises or tends to
    scandalise, or lowers or tends to
    lower the authority of any court”
    This is an extremely wide definition But, it
    cannot be read apart from the conspectus
    of the constitutional provisions within
    which the Founding Fathers of the
    Constitution intended all past and future
    statutes to have meaning. All laws relating
    to contempt of court had, according to the
    provisions of Article 19(2), to be
    “reasonable restrictions” on the exercise of
    the right of free speech. The courts were
    given the power—and, indeed, the
    responsibility— to harmonise conflicting
    aims, interests and values. This is in
    sharp contrast to the Phillimore Committee
    Report on Contempt of Court in the United
    Kingdom [ (1974) bund. S. 794. paras 143-
    5, pp. 61-2] which did not recommend the
    defence of public interest in contempt
    cases.
  74. The third principle is to avoid
    confusion between personal protection of
    a libelled Judge and prevention of
    obstruction of public justice and the
    community’s confidence in that great
    process. The former is not contempt, the
    72
    latter is, although overlapping spaces
    abound.
  75. Because the law of contempt exists to
    protect public confidence in the
    administration of justice, the offence will
    not be committed by attacks upon the
    personal reputation of individual Judges
    as such. As Professor Goodhart has put it
    [ See Newspapers on Contempt of Court,
    (1935) 48 Harv LR 885, 898]:
    “Scandalising the court means any
    hostile criticism of the Judge as Judge;
    any personal attack upon him,
    unconnected with the office he holds, is
    dealt with under the ordinary rules of
    slander and libel”
    Similarly, Griffith, C.J. has said in
    the Australian case of Nicholls [(1911) 12
    CLR 280, 285] that:
    “In one sense, no doubt, every
    defamatory publication concerning a
    Judge may be said to bring him into
    contempt as that term is used in the law
    of libel, but it does not follow that
    everything said of a Judge calculated to
    bring him into contempt in that sense
    amounts to contempt of court”.
    Thus in In the matter of a Special Reference
    from the Bahama Islands [1893 AC 138]
    the Privy Council advised that a contempt
    had not been committed through a
    publication in the Nassau Guardian
    concerning the resident Chief Justice, who
    73
    had himself previously criticised local
    sanitary conditions. Though couched in
    highly sarcastic terms the publication did
    not refer to the Chief Justice in his official,
    as opposed to personal, capacity. Thus
    while it might have been a libel it was not
    a contempt.
  76. The fourth functional canon which
    channels discretionary exercise of the
    contempt power is that the fourth estate
    which is an indispensable intermediary
    between the State and the people and
    necessary instrumentality in
    strengthening the forces of democracy,
    should be given free play within
    responsible limits even when the focus of
    its critical attention is the court, including
    the highest Court.
  77. The fifth normative guideline for the
    Judges to observe in this jurisdiction is
    not to be hypersensitive even where
    distortions and criticisms overstep the
    limits, but to deflate vulgar denunciation
    by dignified bearing, con-descending
    indifference and repudiation by judicial
    rectitude.
  78. The sixth consideration is that, after
    evaluating the totality of factors, if the
    Court considers the attack on the Judge
    or Judges scurrilous, offensive,
    intimidatory or malicious beyond
    condonable limits, the strong arm of the
    74
    law must, in the name of public interest
    and public justice, strike a blow on him
    who challenges the supremacy of the rule
    of law by fouling its source and stream.”
  79. It could thus be seen, that Justice Krishna Iyer, in his
    inimitable style, has observed, that a wise economy of use of
    the contempt power by the Court is the first rule. The Court
    should act with seriousness and severity, where justice is
    jeopardized by a gross and/or unfounded attack on the judges,
    where the attack is calculated to obstruct or destroy the
    judicial process. Otherwise, the Court should ignore, by a
    majestic liberalism, trifling and venial offences. He says the
    dogs may bark, the caravan will pass. He further opines, that
    the constitutional values of free criticism, including the fourth
    estate and the need for a fearless curial process and its
    presiding functionary, the judge must be harmonised and a
    happy balance has to be struck between the two. He opined,
    that confusion between personal protection of a libeled judge
    and prevention of obstruction of public justice and the
    community’s confidence in that great process is to be avoided.
    It must be clearly kept in mind because the former is not
    75
    contempt, the latter is. He further observed, that the Fourth
    Estate which is an indispensable intermediary between the
    State and the people and necessary instrumentality in
    strengthening the forces of democracy, should be given free
    play within responsible limits even when the focus of its critical
    attention is the court, including the highest Court. He opined,
    that the judges should not be hypersensitive even where
    distortions and criticisms overstep the limits, but they should
    deflate vulgar denunciation by dignified bearing,
    condescending indifference and repudiation by judicial
    rectitude.
  80. He opined, that if the court considers, after evaluating
    the totality of factors, the attack on the judge or judges
    scurrilous, offensive, intimidatory or malicious beyond
    condonable limits, the strong arm of the law must, in the name
    of public interest and public justice, strike a blow on him who
    challenges the supremacy of the rule of law by fouling its
    source and stream.
    76
  81. Though in the case of P.N. Duda (supra), this Court,
    in the facts of the said case, held, that if the speech of the
    Minister is read in entirety, it cannot be said that by some
    portions, which were selectively taken from different parts of
    the speech it could be held that the faith in the administration
    of justice was shaken due to the criticism made by the
    Minister; it will be relevant to refer to the following observations
    of this Court.
    “Any criticism about the judicial system or
    the judges which hampers the
    administration of justice or which erodes
    the faith in the objective approach of
    judges and brings administration of
    justice into ridicule must be prevented.
    The contempt of court proceedings arise
    out of that attempt. Judgments can be
    criticised; the motives of the judges need
    not be attributed, it brings the
    administration of justice into deep
    disrepute. Faith in the administration of
    justice is one of the pillars through which
    democratic institution functions and
    sustains. In the free market place of ideas
    criticisms about the judicial system or
    judges should be welcomed, so long as
    such criticisms do not impair or hamper
    the administration of justice. This is how
    courts should approach the powers vested
    in them as judges to punish a person for
    an alleged contempt, be it by taking notice
    77
    of the matter suo motu or at the behest of
    the litigant or a lawyer.
  82. In the case of Pritam Pal vs. High Court of Madhya
    Pradesh, Jabalpur through Registrar10
    , this Court was
    considering an appeal filed by an Advocate, who after failing to
    get a favourable judgment in his own writ petition had moved
    a contempt petition against the judges of the High Court, who
    had dismissed his petition, therein casting scurrilous
    aspersions against their conduct in the discharge of their
    judicial function which bore reflections on their integrity,
    honesty and judicial impartiality. The High Court invoking the
    jurisdiction under Article 215 of the Constitution had initiated
    suo motu proceedings against him and had convicted him for
    having committed criminal contempt. While dismissing the
    appeal, this Court observed thus:
    “60. The maxim “salus populi suprema
    lex”, that is “the welfare of the people is the
    supreme law” adequately enunciates the
    idea of law. This can be achieved only
    when justice is administered lawfully,
    judicially, without fear or favour and
    without being hampered and thwarted,
    10 1993 Supp (1) SCC 529
    78
    and this cannot be effective unless respect
    for it is fostered and maintained.
  83. To punish an advocate for contempt of
    court, no doubt, must be regarded as an
    extreme measure, but to preserve the
    proceedings of the courts from being
    deflected or interfered with, and to keep
    the streams of justice pure, serene and
    undefiled, it becomes the duty of the
    Court, though painful, to punish the
    contemnor in order to preserve its dignity.
    No one can claim immunity from the
    operation of the law of contempt, if his act
    or conduct in relation to court or court
    proceedings interferes with or is
    calculated to obstruct the due course of
    justice.”
  84. This court held, that the welfare of the people is the
    supreme law and this can be achieved only when justice is
    administered lawfully, judicially, without fear or favour and
    without being hampered and thwarted and this cannot be
    effective unless respect for it is fostered and maintained. It has
    been held, that to punish an Advocate for Contempt of court
    must be regarded as an extreme measure, but to preserve the
    proceedings of the Courts from being deflected or interfered
    with, and to keep the streams of justice pure, serene and
    79
    undefiled, it becomes the duty of the Court to punish the
    contemnor in order to preserve its dignity.
  85. In the case of In re: Vinay Chandra Mishra11, this
    Court had taken suo motu cognizance on the basis of the letter
    addressed by one of the judges of the Allahabad High Court to
    the Acting Chief Justice of the said Court, which was in turn
    forwarded to the Chief Justice of India. It was noticed, that the
    contemnor had gone to the extent of abusing the learned judge
    beyond all limits. This Court observed thus:
    “39. The rule of law is the foundation of a
    democratic society. The Judiciary is the
    guardian of the rule of law. Hence
    judiciary is not only the third pillar, but
    the central pillar of the democratic State.
    In a democracy like ours, where there is a
    written Constitution which is above all
    individuals and institutions and where the
    power of judicial review is vested in the
    superior courts, the judiciary has a special
    and additional duty to perform, viz., to
    oversee that all individuals and
    institutions including the executive and
    the legislature act within the framework of
    not only the law but also the fundamental
    law of the land. This duty is apart from the
    function of adjudicating the disputes
    between the parties which is essential to
    peaceful and orderly development of the
    11 (1995) 2 SCC 584
    80
    society. If the judiciary is to perform its
    duties and functions effectively and
    remain true to the spirit with which they
    are sacredly entrusted to it, the dignity
    and authority of the courts have to be
    respected and protected at all costs.
    Otherwise, the very cornerstone of our
    constitutional scheme will give way and
    with it will disappear the rule of law and
    the civilized life in the society. It is for this
    purpose that the courts are entrusted with
    the extraordinary power of punishing
    those who indulge in acts whether inside
    or outside the courts, which tend to
    undermine their authority and bring them
    in disrepute and disrespect by
    scandalising them and obstructing them
    from discharging their duties without fear
    or favour. When the court exercises this
    power, it does not do so to vindicate the
    dignity and honour of the individual judge
    who is personally attacked or scandalised,
    but to uphold the majesty of the law and
    of the administration of justice. The
    foundation of the judiciary is the trust and
    the confidence of the people in its ability to
    deliver fearless and impartial justice.
    When the foundation itself is shaken by
    acts which tend to create disaffection and
    disrespect for the authority of the court by
    creating distrust in its working, the edifice
    of the judicial system gets eroded.”
  86. This Court holds, that the judiciary is the guardian of
    the rule of law and is the central pillar of the democratic State.
    It holds, that in our country, the written Constitution is above
    81
    all individuals and institutions and the judiciary has a special
    and additional duty to perform i.e. to oversee that all
    individuals and institutions including the executive and the
    legislature, act within the framework of not only the law but
    also the fundamental law of the land. It further holds, that
    this duty is apart from the function of adjudicating the
    disputes between the parties, which is essential to peaceful
    and orderly development of the society. It holds, that if the
    judiciary is to perform its duties and functions effectively and
    remain true to the spirit with which they are sacredly entrusted
    to it, the dignity and authority of the courts have to be
    respected and protected at all costs. It has been held, that
    otherwise, the very cornerstone of our constitutional scheme
    will give way and with it will disappear the rule of law and the
    civilized life in the society. It has been held, for this purpose
    that the courts are entrusted with the extra-ordinary power of
    punishing those who indulge in acts whether inside or outside
    the courts, which tend to undermine their authority and bring
    them in disrepute and disrespect by scandalising them and
    82
    obstructing them from discharging their duties without fear or
    favour. It has been held, that when the court exercises this
    power, it does not do so to vindicate the dignity and honour of
    the individual judge who is personally attacked or scandalised,
    but to uphold the majesty of the law and of the administration
    of justice. It has been held, the foundation of the judiciary is
    the trust and the confidence of the people in its ability to
    deliver fearless and impartial justice. When the foundation
    itself is shaken by acts which tend to create disaffection and
    disrespect for the authority of the court by creating distrust in
    its working, the edifice of the judicial system gets eroded.
  87. In the case of Dr. D.C. Saxena vs. Hon’ble the Chief
    Justice of India12, a writ petition was filed under Article 32
    by way of a PIL making scurrilous imputations against the CJI.
    This Court observed thus:
    “33. A citizen is entitled to bring to the
    notice of the public at large the infirmities
    from which any institution including the
    judiciary suffers from. Indeed, the right to
    offer healthy and constructive criticism
    which is fair in spirit must be left
    unimpaired in the interest of the
    12 (1996) 5 SCC 216
    83
    institution itself. Critics are instruments
    of reform but not those actuated by malice
    but those who are inspired by public weal.
    Bona fide criticism of any system or
    institution including the judiciary is aimed
    at inducing the administration of the
    system or institution to look inward and
    improve its public image. Courts, the
    instrumentalities of the State are subject
    to the Constitution and the laws and are
    not above criticism. Healthy and
    constructive criticism are tools to augment
    its forensic tools for improving its
    functions. A harmonious blend and
    balanced existence of free speech and
    fearless justice counsel that law ought to
    be astute to criticism. Constructive public
    criticism even if it slightly oversteps its
    limits thus has fruitful play in preserving
    democratic health of public institutions.
    Section 5 of the Act accords protection to
    such fair criticism and saves from
    contempt of court. The best way to sustain
    the dignity and respect for the office of
    judge is to deserve respect from the public
    at large by fearlessness and objectivity of
    the approach to the issues arising for
    decision, quality of the judgment,
    restraint, dignity and decorum a judge
    observes in judicial conduct off and on the
    bench and rectitude.”
  88. It has been held, that a citizen is entitled to bring to
    the notice of the public at large the infirmities from which any
    institution including judiciary suffers from. It has been
    84
    further held, that the right to offer healthy and constructive
    criticism, which is fair in spirit must be left unimpaired in the
    interest of the institution itself. It has been held, that critics
    are instruments of reform but not those actuated by malice but
    those who are inspired by public weal. It has also been held,
    that constructive public criticism even if it slightly oversteps
    its limits thus has fruitful play in preserving democratic health
    of public institutions.
  89. This Court further observed thus:
    “40. Scandalising the court, therefore,
    would mean hostile criticism of judges as
    judges or judiciary. Any personal attack
    upon a judge in connection with the office
    he holds is dealt with under law of libel or
    slander. Yet defamatory publication
    concerning the judge as a judge brings the
    court or judges into contempt, a serious
    impediment to justice and an inroad on
    the majesty of justice. Any caricature of a
    judge calculated to lower the dignity of the
    court would destroy, undermine or tend to
    undermine public confidence in the
    administration of justice or the majesty of
    justice. It would, therefore, be
    scandalising the judge as a judge, in other
    words, imputing partiality, corruption,
    bias, improper motives to a judge is
    scandalisation of the court and would be
    contempt of the court. Even imputation of
    85
    lack of impartiality or fairness to a judge
    in the discharge of his official duties
    amounts to contempt. The gravamen of
    the offence is that of lowering his dignity
    or authority or an affront to the majesty of
    justice. When the contemnor challenges
    the authority of the court, he interferes
    with the performance of duties of judge’s
    office or judicial process or administration
    of justice or generation or production of
    tendency bringing the judge or judiciary
    into contempt. Section 2(c) of the Act,
    therefore, defines criminal contempt in
    wider articulation that any publication,
    whether by words, spoken or written, or by
    signs, or by visible representations, or
    otherwise of any matter or the doing of any
    other act whatsoever which scandalises or
    tends to scandalise, or lowers or tends to
    lower the authority of any court; or
    prejudices, or interferes or tends to
    interfere with, the due course of any
    judicial proceeding; or interferes or tends
    to interfere with, or obstructs or tends to
    obstruct, the administration of justice in
    any other manner, is a criminal contempt.
    Therefore, a tendency to scandalise the
    court or tendency to lower the authority of
    the court or tendency to interfere with or
    tendency to obstruct the administration of
    justice in any manner or tendency to
    challenge the authority or majesty of
    justice, would be a criminal contempt. The
    offending act apart, any tendency if it may
    lead to or tends to lower the authority of
    the court is a criminal contempt. Any
    conduct of the contemnor which has the
    tendency or produces a tendency to bring
    86
    the judge or court into contempt or tends
    to lower the authority of the court would
    also be contempt of the court.”
  90. It could thus be seen, that it has been held by this
    Court, that hostile criticism of judges as judges or judiciary
    would amount to scandalizing the Court. It has been held,
    that any personal attack upon a judge in connection with the
    office he holds is dealt with under law of libel or slander. Yet
    defamatory publication concerning the judge as a judge brings
    the court or judges into contempt, a serious impediment to
    justice and an inroad on the majesty of justice. This Court
    further observed, that any caricature of a judge calculated to
    lower the dignity of the court would destroy, undermine or tend
    to undermine public confidence in the administration of justice
    or the majesty of justice. It has been held, that imputing
    partiality, corruption, bias, improper motives to a judge is
    scandalisation of the court and would be contempt of the court.
    It has been held, that the gravamen of the offence is that of
    lowering his dignity or authority or an affront to the majesty of
    justice. This Court held, that Section 2(c) of the Act defines
    87
    ‘criminal contempt’ in wider articulation. It has been held, that
    a tendency to scandalise the Court or tendency to lower the
    authority of the court or tendency to interfere with or tendency
    to obstruct the administration of justice in any manner or
    tendency to challenge the authority or majesty of justice, would
    be a criminal contempt.
  91. The Constitution Bench of this Court in the case of
    Supreme Court Bar Association vs. Union of India and
    another13
    , held thus:
    “42. The contempt of court is a special
    jurisdiction to be exercised sparingly and
    with caution whenever an act adversely
    affects the administration of justice or
    which tends to impede its course or tends
    to shake public confidence in the judicial
    institutions. This jurisdiction may also be
    exercised when the act complained of
    adversely affects the majesty of law or
    dignity of the courts. The purpose of
    contempt jurisdiction is to uphold the
    majesty and dignity of the courts of law. It
    is an unusual type of jurisdiction
    combining “the jury, the judge and the
    hangman” and it is so because the court is
    not adjudicating upon any claim between
    litigating parties. This jurisdiction is not
    exercised to protect the dignity of an
    13 (1998) 4 SCC 409
    88
    individual judge but to protect the
    administration of justice from being
    maligned. In the general interest of the
    community it is imperative that the
    authority of courts should not be
    imperilled and there should be no
    unjustifiable interference in the
    administration of justice. It is a matter
    between the court and the contemner and
    third parties cannot intervene. It is
    exercised in a summary manner in aid of
    the administration of justice, the majesty
    of law and the dignity of the courts. No
    such act can be permitted which may have
    the tendency to shake the public
    confidence in the fairness and impartiality
    of the administration of justice.”
  92. The observations of the Constitution Bench reiterate
    the legal position that the contempt jurisdiction, which is a
    special jurisdiction has to be exercised sparingly and with
    caution, whenever an act adversely affects the administration
    of justice or which tends to impede its course or tends to shake
    public confidence in the judicial institutions. This jurisdiction
    may also be exercised, when the act complained of adversely
    affects the majesty of law or dignity of the courts. The purpose
    of contempt jurisdiction is to uphold the majesty and dignity
    of the courts of law. This jurisdiction is not to be exercised to
    89
    protect the dignity of an individual judge, but to protect the
    administration of justice from being maligned. It is reiterated,
    that in the general interest of the community, it is imperative
    that the authority of courts should not be imperilled and there
    should be no unjustifiable interference in the administration
    of justice. It has been reiterated, that no such act can be
    permitted, which may have the tendency to shake the public
    confidence in the fairness and impartiality of the
    administration of justice.
  93. In the case of Arundhati Roy, in Re14, this Court
    observed thus:
    “28. As already held, fair criticism of the
    conduct of a Judge, the institution of the
    judiciary and its functioning may not
    amount to contempt if it is made in good
    faith and in public interest. To ascertain
    the good faith and the public interest, the
    courts have to see all the surrounding
    circumstances including the person
    responsible for comments, his knowledge
    in the field regarding which the comments
    are made and the intended purpose
    sought to be achieved. All citizens cannot
    be permitted to comment upon the
    conduct of the courts in the name of fair
    14 (2002) 3 SCC 343
    90
    criticism which, if not checked, would
    destroy the institution itself…..”
  94. This Court reiterated the position, that fair criticism of
    the conduct of a judge, the institution of the judiciary and its
    functioning may not amount to contempt, if it is made in good
    faith and in public interest. For ascertaining the good faith
    and the public interest, the courts have to see all the
    surrounding circumstances including the person responsible
    for comments, his knowledge in the field regarding which the
    comments are made and the intended purpose sought to be
    achieved.
  95. It could thus be seen, that it is well settled that a
    citizen while exercising right under Article 19(1) is entitled to
    make a fair criticism of a judge, judiciary and its functioning.
    However, the right under Article 19(1) is subject to restriction
    under clause (2) of Article 19. An attempt has to be made to
    properly balance the right under Article 19(1) and the
    reasonable restriction under clause (2) of Article 19. If a
    citizen while exercising his right under Article 19(1) exceeds
    the limits and makes a statement, which tends to scandalize
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    the judges and institution of administration of justice, such an
    action would come in the ambit of contempt of court. If a
    citizen makes a statement which tends to undermine the
    dignity and authority of this Court, the same would come in
    the ambit of ‘criminal contempt’. When such a statement
    tends to shake the public confidence in the judicial
    institutions, the same would also come within the ambit of
    ‘criminal contempt’.
  96. No doubt, that when a statement is made against a
    judge as an individual, the contempt jurisdiction would not be
    available. However, when the statement is made against a
    judge as a judge and which has an adverse effect in the
    administration of justice, the Court would certainly be entitled
    to invoke the contempt jurisdiction. No doubt, that while
    exercising the right of fair criticism under Article 19(1), if a
    citizen bonafidely exceeds the right in the public interest, this
    Court would be slow in exercising the contempt jurisdiction
    and show magnanimity. However, when such a statement is
    calculated in order to malign the image of judiciary, the Court
    92
    would not remain a silent spectator. When the authority of
    this Court is itself under attack, the Court would not be a
    onlooker. The word ‘authority’ as explained by Wilmot, C.J. and
    approved by the Constitution Bench of this Court in
    Baradakanta Mishra (supra) does not mean the coercive
    power of the judges, but a deference and respect which is paid
    to them and their acts, from an opinion of their justice and
    integrity
  97. As submitted by Shri Dave, relying on the observation
    made by Krishna Iyer, J, in the case of Baradakanta Mishra
    (supra), if a constructive criticism is made in order to enable
    systemic correction in the system, the Court would not invoke
    the contempt jurisdiction. However, as observed by the same
    learned judge in Re: S. Mulgaokar, the Court will act with
    seriousness and severity where justice is jeopardized by a gross
    and/or unfounded attack on the judges and where the attack
    is calculated to obstruct or destroy the judicial
    process. Justice Krishna Iyer further observed, that after
    evaluating the totality of factors, if the Court considers the
    93
    attack on the Judge or Judges to be scurrilous, offensive,
    intimidatory or malicious beyond condonable limits, the strong
    arm of the law must, in the name of public interest and public
    justice, strike a blow on him, who challenges the supremacy of
    the rule of law by fouling its source and stream.
  98. In the light of these guiding principles, let us analyze
    the tweets, admittedly, made by the alleged contemnor No.1
    which have given rise to this proceeding.
  99. After analysing the tweets, the questions that we will
    have to pose is, as to whether the said tweets are entitled to
    protection under Article 19(1) of the Constitution as a fair
    criticism of the system, made in good faith in the larger public
    interest or not.
  100. We have reproduced both the tweets in the order dated
    22.7.2020, which is reproduced in the beginning. The first
    part of the first tweet states, that ‘CJI rides a 50 lakh
    motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur
    without a mask or helmet’. This part of the tweet could be said
    to be a criticism made against the CJI as an individual and not
    94
    against the CJI as CJI. However, the second part of the tweet
    states, ‘at a time when he keeps the SC in lockdown mode
    denying citizens their fundamental rights to access justice’.
    Undisputedly, the said part of the statement criticizes the CJI
    in his capacity as the Chief Justice of India i.e. the
    Administrative Head of the judiciary of the country. The
    impression that the said part of the tweet attempts to give to a
    layman is, that the CJI is riding a 50 lakh motorcycle belonging
    to a BJP leader at Raj Bhavan, Nagpur without a mask or
    helmet, at a time when he has kept the SC in lockdown mode
    denying citizens their fundamental right to access justice. The
    said tweet is capable of giving an impression to a layman, that
    the CJI is enjoying his ride on a motorbike worth Rs.50 lakh
    belonging to a BJP leader, at a time when he has kept the
    Supreme Court in lockdown mode denying citizens their
    fundamental right to access justice.
  101. Firstly, it would be noted, that the date on which the
    CJI is alleged to have taken a ride on a motorbike is during the
    period when the Supreme Court was on a summer vacation.
    95
    In any case, even during the said period, the vacation Benches
    of the Court were regularly functioning. The impression that
    the said tweet intends to give is that the CJI as the head of the
    Indian judiciary has kept the Supreme Court in lockdown
    mode, thereby denying citizens their fundamental right to
    access justice. In any case, the statement, that the Supreme
    Court is in lockdown is factually incorrect even to the
    knowledge of the alleged contemnor No.1. It is a common
    knowledge, that on account of COVID-19 pandemic the
    physical functioning of the Court was required to be
    suspended. This was in order to avoid mass gathering in the
    Supreme Court and to prevent outbreak of pandemic.
    However, immediately after suspension of physical hearing,
    the Court started functioning through video conferencing.
    From 23.3.2020 till 4.8.2020, various benches of the Court
    have been sitting regularly and discharging their duties
    through video conferencing. The total number of sittings that
    the various benches had from 23.3.2020 till 4.8.2020 is 879.
    During this period, the Court has heard 12748 matters. In the
    96
    said period, this Court has dealt with 686 writ petitions filed
    under Article 32 of the Constitution of India.
  102. It can thus be clearly seen, that the statement, that
    the CJI has kept the SC in lockdown mode denying citizens
    their fundamental rights to access justice is patently false. It
    may not be out of place to mention, that the alleged contemnor
    No.1 has himself appeared on various occasions in number of
    matters through video conferencing. Not only that, but even
    in his personal capacity the alleged contemnor No.1 has taken
    recourse to the access of justice by approaching this Court in
    a petition under Article 32 of the Constitution being Writ
    Petition (Criminal) No.131 of 2020, challenging the First
    Information Report lodged against him at Bhaktinagar Police
    Station, Rajkot, Gujarat, wherein this Court had passed the
    following order on 1.5.2020:
    “The Court is convened through video
    conferencing.
    Issue notice.
    In the meantime, no coercive action be
    taken against the petitioner in First
    Information Report No.11209052200180
    97
    lodged on 12th April, 2020 under Sections
    295A/505(1)(b), 34 and 120B of the IPC
    registered at the Police Station
    Bhaktinagar, Rajkot, Gujarat.”
    In this premise, making such wild allegation thereby
    giving an impression, that the CJI is enjoying riding an
    expensive bike, while he keeps the SC in lockdown mode and
    thereby denying citizens their fundamental right to access
    justice, is undoubtedly false, malicious and scandalous. It has
    the tendency to shake the confidence of the public at large in
    the institution of judiciary and the institution of the CJI and
    undermining the dignity and authority of the administration of
    justice. We are unable to accept the contention of the alleged
    contemnor No.1, that the said statement was a bona fide
    criticism made by him on account of his anguish of non
    functioning of the courts physically. His contention, that on
    account of non-physical functioning of the Supreme Court for
    the last more than three months, the fundamental rights of
    citizens, such as those in detention, those destitute and poor,
    and others facing serious and urgent grievances were not being
    addressed or taken up for redressal, as stated herein above, is
    98
    false to his own knowledge. He has made such a scandalous
    and malicious statement having himself availed the right of an
    access to justice during the said period, not only as a lawyer
    but also as a litigant.
  103. Insofar as the second tweet is concerned, even
    according to the alleged contemnor No.1, the tweet is in three
    distinct parts. According to him, the first part of the tweet
    contains his considered opinion, that democracy has been
    substantially destroyed in India during the last six years. The
    second part is his opinion, that the Supreme Court has played
    a substantial role in allowing the destruction of the democracy
    and the third part is his opinion regarding the role of the last
    4 Chief Justice’s in particular in allowing it.
  104. We are not concerned with the first part of the tweet
    since it is not concerned with this Court. However, even on his
    own admission, he has expressed his opinion, that the
    Supreme Court has played a substantial role in allowing the
    destruction of democracy and further admitted, that the third
    99
    part is regarding the role of last four Chief Justices in
    particular, in allowing it.
  105. It is common knowledge, that the emergency era has
    been considered as the blackest era in the history of Indian
    democracy. The impression which the said tweet tends to give
    to an ordinary citizen is, that when the historians in future
    look back, the impression they will get is, that in the last six
    years the democracy has been destroyed in India without even
    a formal emergency and that the Supreme Court had a
    particular role in the said destruction and the last four Chief
    Justices of India had more particular role in the said
    destruction.
  106. There cannot be any manner of doubt, that the said
    tweet is directed against the Supreme Court, tending to give an
    impression, that the Supreme Court has a particular role in
    the destruction of democracy in the last six years and the last
    four CJIs had a more particular role in the same. It is clear,
    that the criticism is against the entire Supreme Court and the
    last four CJIs. The criticism is not against a particular judge
    100
    but the institution of the Supreme Court and the institution of
    the Chief Justice of India. The impression that the said tweet
    tends to convey is that the judges who have presided in the
    Supreme Court in the period of last six years have particular
    role in the destruction of Indian democracy and the last four
    CJIs had a more particular role in it.
  107. As discussed herein above, while considering as to
    whether the said criticism was made in a good faith or not the
    attending circumstances are also required to be taken into
    consideration. One of the attending circumstances is the
    extent of publication. The publication by tweet reaches
    millions of people and as such, such a huge extent of
    publication would also be one of the factors that requires to be
    taken into consideration while considering the question of good
    faith.
  108. Another circumstance is, the person who makes such
    a statement. In the own admission, the alleged contemnor
    No.1 has been practicing for last 30 years in the Supreme
    Court and the Delhi High Court and has consistently taken up
    101
    many issues of public interest concerning the health of our
    democracy and its institutions and in particular the
    functioning of our judiciary and especially its accountability.
    The alleged contemnor being part of the institution of
    administration of justice, instead of protecting the majesty of
    law has indulged into an act, which tends to bring disrepute to
    the institution of administration of justice. The alleged
    contemnor No.1 is expected to act as a responsible officer of
    this Court. The scurrilous allegations, which are malicious in
    nature and have the tendency to scandalize the Court are not
    expected from a person, who is a lawyer of 30 years standing.
    In our considered view, it cannot be said that the above tweets
    can be said to be a fair criticism of the functioning of the
    judiciary, made bona fide in the public interest.
  109. As held by this Court in earlier judgments, to which
    we have referred herein above, the Indian judiciary is not only
    one of pillars on which the Indian democracy stands but is the
    central pillar. The Indian Constitutional democracy stands on
    the bedrock of rule of law. The trust, faith and confidence of
    102
    the citizens of the country in the judicial system is sine qua
    non for existence of rule of law. An attempt to shake the very
    foundation of constitutional democracy has to be dealt with an
    iron hand. The tweet has the effect of destabilising the very
    foundation of this important pillar of the Indian democracy.
    The tweet clearly tends to give an impression, that the
    Supreme Court, which is a highest constitutional court in the
    country, has in the last six years played a vital role in
    destruction of the Indian democracy. There is no manner of
    doubt, that the tweet tends to shake the public confidence in
    the institution of judiciary. We do not want to go into the
    truthfulness or otherwise of the first part of the tweet,
    inasmuch as we do not want to convert this proceeding into a
    platform for political debate. We are only concerned with the
    damage that is sought to be done to the institution of
    administration of justice. In our considered view, the said
    tweet undermines the dignity and authority of the institution
    of the Supreme Court of India and the CJI and directly affronts
    the majesty of law.
    103
  110. Indian judiciary is considered by the citizens in the
    country with the highest esteem. The judiciary is considered
    as a last hope when a citizen fails to get justice anywhere. The
    Supreme Court is the epitome of the Indian judiciary. An
    attack on the Supreme Court does not only have the effect of
    tending an ordinary litigant of losing the confidence in the
    Supreme Court but also may tend to lose the confidence in the
    mind of other judges in the country in its highest court. A
    possibility of the other judges getting an impression that they
    may not stand protected from malicious attacks, when the
    Supreme Court has failed to protect itself from malicious
    insinuations, cannot be ruled out. As such, in order to protect
    the larger public interest, such attempts of attack on the
    highest judiciary of the country should be dealt with firmly. No
    doubt, that the Court is required to be magnanimous, when
    criticism is made of the judges or of the institution of
    administration of justice. However, such magnanimity cannot
    be stretched to such an extent, which may amount to
    weakness in dealing with a malicious, scurrilous, calculated
    104
    attack on the very foundation of the institution of the judiciary
    and thereby damaging the very foundation of the democracy.
  111. The Indian Constitution has given a special role to the
    constitutional courts of this country. The Supreme Court is a
    protector of the fundamental rights of the citizens, as also is
    endowed with a duty to keep the other pillars of democracy i.e.
    the Executive and the Legislature, within the constitutional
    bounds. If an attack is made to shake the confidence that the
    public at large has in the institution of judiciary, such an
    attack has to be dealt with firmly. No doubt, that it may be
    better in many cases for the judiciary to adopt a
    magnanimously charitable attitude even when utterly
    uncharitable and unfair criticism of its operations is made out
    of bona fide concern for improvement. However, when there
    appears some scheme and design to bring about results which
    have the tendency of damaging the confidence in our judicial
    system and demoralize the Judges of the highest court by
    making malicious attacks, those interested in maintaining
    high standards of fearless, impartial and unbending justice
    105
    will have to stand firmly. If such an attack is not dealt with,
    with requisite degree of firmness, it may affect the national
    honour and prestige in the comity of nations. Fearless and
    impartial courts of justice are the bulwark of a healthy
    democracy and the confidence in them cannot be permitted to
    be impaired by malicious attacks upon them. As observed by
    Justice Krishna Iyer in the case of Re: S. Mulgaokar (supra),
    on which judgment, Shri Dave has strongly relied on, if the
    Court considers the attack on the judge or judges scurrilous,
    offensive, intimidatory or malicious beyond condonable limits,
    the strong arm of the law must, in the name of public interest
    and public justice, strike a blow on him who challenges the
    supremacy of the rule of law by fouling its source and stream.
  112. The summary jurisdiction of this Court is required to
    be exercised not to vindicate the dignity and honour of the
    individual judge, who is personally attacked or scandalised,
    but to uphold the majesty of the law and of the administration
    of justice. The foundation of the judiciary is the trust and the
    confidence of the people in its ability to deliver fearless and
    106
    impartial justice. When the foundation itself is sought to be
    shaken by acts which tend to create disaffection and disrespect
    for the authority of the court by creating distrust in its
    working, the edifice of the judicial system gets eroded. The
    scurrilous/malicious attacks by the alleged contemnor No.1
    are not only against one or two judges but the entire Supreme
    Court in its functioning of the last six years. Such an attack
    which tends to create disaffection and disrespect for the
    authority of this Court cannot be ignored. Recently, the
    Supreme Court in the cases of National Lawyers Campaign
    for Judical Transparency and Reforms and others vs.
    Union of India and others15 and Re: Vijay Kurle & Ors
    (supra) has suo motu taken action against Advocates who had
    made scandalous allegations against the individual
    judge/judges. Here the alleged contemnor has attempted to
    scandalise the entire institution of the Supreme Court. We
    may gainfully refer to the observations of Justice Wilmot in R.
    v. Almon16 made as early as in 1765:
    15 2019 SCC Online SC 411
    16 1765 Wilmot’s Notes 243 : 97 ER 94
    107
    “…. And whenever men’s allegiance to the
    law is so fundamentally shaken, it is the
    most fatal and most dangerous
    obstruction of justice, and, in my opinion,
    calls out for a more rapid and immediate
    redress than any other obstruction
    whatsoever; not for the sake of the Judges,
    as private individuals, but because they
    are the channels by which the King’s
    justice is conveyed to the people.”
  113. The tweets which are based on the distorted facts, in
    our considered view, amount to committing of ‘criminal
    contempt’.
  114. Insofar as the alleged contemnor No.2 is concerned,
    we accept the explanation given by it, that it is only an
    intermediary and that it does not have any control on what the
    users post on the platform. It has also showed bona fides
    immediately after the cognizance was taken by this Court as it
    has suspended both the tweets. We, therefore, discharge the
    notice issued to the alleged contemnor No.2.
    108
  115. In the result, we hold alleged contemnor No.1 – Mr.
    Prashant Bhushan guilty of having committed criminal
    contempt of this Court.
    ………………….J.
    [ARUN MISHRA]
    ………………….J.
    [B.R. GAVAI]
    ……………………….J.
    [KRISHNA MURARI]
    NEW DELHI;
    AUGUST 14, 2020