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FACTS
Prashant Bhushan is facing a contempt charge stemming from two tweets he sent on June 27 and June 29.
Even without a declared emergency, the Supreme Court and the previous four Chief Justices played a
substantial part in the collapse of Indian democracy, according to the first tweet. The second tweet chastised
India's Chief Justice, Justice Sharad Arvind Bovde, for riding a BJP leader's motorcycle without a mask or
helmet when the Supreme Court was in lockdown, denying citizens their basic right to access to justice.
Three Supreme Court justices, Arun Mishra, B.R Gavai, and Krishna Murari, issued a notice of contempt of
court and launched Suo-moto criminal contempt of court proceedings against Prashant Bhushan in response
to the aforementioned tweets.
Tweets:
1. “When historians in future look back at the last 6 years to see how 3 democracies 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.”

2. “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!”

ISSUES
1. Is Prashant Bhushan liable for contempt of court in connection with his two tweets?
2. Whether Prashant Bhushan's tweets were protected under Article 19(1) “of the Constitution as a "fair
criticism" of the system made in good faith in the greater public interest?”

RULE
1. Article 129 of Constitution of India

“Article 129 Supreme Court to be a court of record – Constitution of India. 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.”

2. Article 142 of Constitution of India

“Article 142 of Constitution of India deals with Enforcement of decrees and orders of the Supreme
Court. It states that the Apex Court in the exercise of its jurisdiction may pass such decree or make
such order as is necessary for doing complete justice in any case pending before it.”

3. Section 2 of The Contempt of Court Act, 1971

“Contempt can be of two types which are Civil and Criminal:

- Civil Contempt: Under” Section 2(b) of the Contempt of Courts Act of 1971, “civil contempt has
been defined as wilful disobedience to any judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking given to a court.

- Criminal Contempt: Under” Section 2(c) of the “Contempt of Courts Act of 1971, criminal
contempt has been defined as the publication (whether by words, spoken or written, or by signs,
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or by visible representation, 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”

ARGUMENTS ADVANCED
- The petitioner “claimed that the first tweet was primarily intended to express his displeasure with
the Supreme Court's non-physical functioning for more than three months, as a result of which
citizens' fundamental rights, such as those in detention, the destitute and poor, and others facing
serious and urgent grievances, were not being addressed or taken up for redress. The petitioner
further argued that treating it as contempt would impede free expression and would be an unfair
restriction on a citizen's freedom under” Article l9 (1) (a) of the Constitution.

- He claimed that “the second tweet” has three distinct elements, each of which is his genuine
opinion about the state of affairs in the country over the last six years and the role of the Supreme
Court, particularly the role of the last four Chief Justices of India. In India, democracy has been
mostly undermined “during the previous six years. That the Supreme Court had a significant part
in permitting democracy to be destroyed. The involvement of the previous four Chief Justices in
enabling it in particular.”

- That “it is the core of democracy for all institutions, including the judiciary, to serve the citizens
and people of this nation, and that they have the right to openly and fairly examine the status of
an institution's affairs and mobilise public opinion in order to improve it. It is argued that the
activities of a CJI, or a succession of CJIs, for a genuine critique, cannot and does not scandalise
the court, nor does it diminish the Court's authority.”

- According to this Court's Constitution “Bench decision in the matter of Baradakanta Mishra v.
Registrar of Orissa High Court & Others, if the judge is vilified as an individual, he is left to
his own private remedies, and the Court has no jurisdiction to penalise for contempt. The
vilification in this instance, if any, is directed at the CJI as an individual rather than as a Supreme
Court CJI, and hence the Court's procedures are not tenable.”

ANALYSIS
- The right to “freedom of expression is guaranteed under Article” 19(1) “of the Indian Constitution,
although it is subject to reasonable limits under” Article 19(2).

- Any effort to scandalise, “lower, prejudice, meddle, or hinder the administration of justice is
considered a 'criminal contempt' under the Indian Contempt of Courts Act, 1971. The High Courts
and Supreme Court have the inherent capacity to engage in 'judicial self-dealing' as a constitutional
privilege under Article 215 and 129 of the Indian Constitution, allowing them to launch contempt
proceedings suo moto. Courts have this power to protect the government's authority and prevent the
public's trust in the administration of justice from being eroded.”
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- The “Court stated that while vilifying a judge as a judge is punishable by contempt, ” vilifying a judge
as an individual is not; in such circumstances, judges must rely on private remedies. “It relied on six
considerations propounded by Justice V.R. Krishna Iyer in Re: S. Mulgaokar,” to adjudicate
“contempt cases:

 wise economy of the use of contempt power by the Court,

 harmonising constitutional values of free criticism and the need for fearless curial process,
 separating personal protection of libelled judge and community confidence in the prevention
of the obstruction of justice,
 discretionary exercise of authority,
 not being hypersensitive even when criticisms overstep limits and
 declaring contempt in cases of malicious, scurrilous, intimidatory or offensive remarks
beyond condonable limits.”

- Dissection of the tweets:

 First tweet

i. “Prashant Bhushan's remark that the Supreme Court had played a significant part in
facilitating the destruction of democracy, as well as the role of the previous four CJIs
in maintaining it, was a direct attack on the Supreme Court and the CJI.”
ii. The Court determined that Prashant Bhushan acted recklessly and that the tweets were
“

not qualified for good faith protection because of the vast reach of the tweet and the
character of the contemnor” (who is a lawyer).
iii. It “was also not a fair critique of the judiciary's functioning made in the public interest,
making it unsuitable for protection under Article ” 19(1) of freedom of expression
provision.

The tweets had the impact of dissuading an average litigant and risked losing faith in the
Supreme Court and the CJI when taken together. The Court also concluded that if it failed to
defend itself against vicious insinuations like the one in this instance, it would open the
floodgates to other judges facing similar attacks. Preventing malicious assaults was, in fact, a
matter of national honour and reputation in the community of countries, and it had to be
handled with determination.

 Second Tweet

i. The initial “half of the first tweet” (“CJI rides a 50-lakh motorcycle belonging to a BJP
leader without a mask or helmet at Raj Bhavan, Nagpur”) was a personal attack on the
CJI.
ii. “The second section of the initial tweet (“at a time when he keeps the Supreme Court

in lockdown mode, denying citizens their fundamental rights to access justice”) was
an undisputed attack on CJI in his function as the judiciary's administrative leader.”
iii. “The Court dismissed Prashant Bhushan's allegation of genuine criticism based on his

distress over the courts' physical dysfunction. Despite the fact that they were
physically unable to work, the Court was able to carry out its responsibilities via video
conferencing capabilities.”
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The Supreme Court found “that Prashant Bhushan's second tweet conveyed the appearance
that the CJI, as head of the Indian judiciary, had placed the Supreme Court on lockdown,
depriving citizens their basic right to seek justice.”

CONCLUSION
The Supreme Court convicted lawyer Prashant Bhushan guilty of contempt of court for two tweets that
“

shook the” "very fabric of constitutional democracy," according to the court.

The “free market of ideas, fair criticism in good faith when it is in the public interest, the surrounding
circumstances, the person making the comments, his knowledge in the field in which the comments are
made, and the intended purpose are all factors that the Indian jurisprudence on contempt lays out for the
Court to consider. As a result, the Court must use its authority with extreme care and prudence, exercising
contempt power only in circumstances where it is apparent beyond a reasonable question.”
As shown “in the case, criticising the judge fairly, however vehemently, is not a crime but an essential
privilege, bestowed twice in a democracy. When freedom of expression is legitimately practised and serves
the public interest in a reasonable way, public justice cannot stifle or restrain it. The greatest guarantors of
bold justice are free people.”
As a result, the Supreme Court's decision severely restricts “freedom of expression. It comes at a time when
Indian authorities are increasingly using criminal laws to prosecute dissenters, protestors, activists, and
students on terrorism, sedition, and defamation charges.”
The decision also establishes a dangerous precedent that will continue to jeopardise future freedom of
“

speech. In the coming years, the notion that the judiciary's integrity is derived from and sustained by public
opinion of it will operate as a severe deterrent to dissent.”