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CA - 1116
The Tribune
Courts should learn to shrug off tweets
Rakesh Dwivedi | Sep 11, 2020
The tweets of Bhushan are not as serious, nor
were as widely covered, nor had an equivalent,
nor even had half as much impact. It too should
have been ignored. However, the court in its
wisdom, chose to pick it up for suo moto
contempt proceedings. In the process, it
unwittingly, made the dead tweets alive and
popularised them. It provided an opportunity to
the contemner to interlace them with free
speech question.
Rakesh Dwivedi
Senior Advocate, Supreme Court
In life, we ignore many provocations, especially
the foolish and the trivial ones. We let the
outswinging ball go into the gloves of the
keeper. This has become more important with
the emergence of the social media and the
internet. This media is flooded with abuses and
trifling few lines, which are casually and
irresponsibly shared, often without thought and
for fun or even habit.
This is the non-creative side of free speech.
Such speech is generally unchewed and not very
popular. Readers do not attach much weight to
them. Often, the counters blunt them and they
lie buried in the web dust. But if the institutions
engage with them, they become notoriously
popular and attract greater attention and
discussion, often warped in high sounding
legalese. The judiciary will have to develop this
art of ignoring in the new context, two tweets
of Prashant Bhushan — one pertaining to the
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CJI checking out a Harley Davidson and the
second alleging corruption against the last four
CJI s and asserting failure on the part of the
apex court to check executive assault against
democracy.
The Ayodhya verdict too was castigated. Tweets
had made hardly any impact on society or even
the netizens. In fact, the first tweet had been
countered by me as ‘stupid’ and ‘absurd’. These
tweets of a politico-lawyer fade into
insignificance when compared with the garden
media conference of four sitting judges of the
Supreme Court where serious allegations had
been levelled against the then CJI Deepak
Misra. The four judges rose from courtroom
abruptly, under prior understanding, and
addressed the media. A letter given to the CJI
was released. They launched a serious charge
alleging bias in the listing of important cases
before a bench of preference in exercise of the
powers of the Master of Roster. They said
democracy was in danger and they had to speak
out as part of duty to the nation. This became
international news. It was covered by the entire
print and electronic media. The meet was
unprecedented. It led to an impeachment
motion against the CJI. The motion was
discussed in the media over days and rejected
by the Chairman of the Rajya Sabha.
The garden meet shook the judiciary as a whole.
What the judges said appertained to the
administration of justice in the Supreme Court.
Their statement, if untrue, was clearly
obstruction in the course of administration of
justice. It was gross contempt. And it is settled
that a judge can commit contempt of court.
Justice Karnan, judge, Calcutta High Court, had
been convicted not long ago. But the Supreme
Court ignored it and rested content with

reiterating the powers of the Master of Roster
and it being unquestionable.
Perhaps it was more urgent to stabilise the
rocking boat. The tweets of Bhushan are not as
serious, nor were as widely covered, nor had an
eqivalent, nor even had half as much impact. It
too should have been ignored. However, the
court in its wisdom, chose to pick it up for suo
moto contempt proceedings. In the process, the
Supreme Court, unwittingly, made the dead
tweets alive and popularised them. It provided
an opportunity to the contemner to interlace
them with free speech question.
The conviction and Re 1 sentence made
Bhushan a hero. Many compared him with
Gandhi and Mandela — another stupidity. In
the process, his tweets were read and reread
and widely commented upon, largely in his
favour, and in the context of bona fide belief
and free speech. Tweets of zero value, which no
one bothered about, were turned valuable by
the judicial error of noticing them for suo moto
action.
The free speech question! Many writers and the
contemner pitted free speech against the
power of contempt and asserted that contempt
law was obsolete and must give way to the
fundamental right. Bhushan flagged his long
service to jurisprudence and his loyalty in
always being in the forefront to protect the
sterling record of the court in guarding
fundamental rights and democracy. The
contention seems to be that even qua
contempt law, the width of free speech is very
wide and bona fide opinions as regards judges’
rectitude and conduct cannot amount to
contempt.
No doubt, free speech is the brightest of the
seven lamps in Article 19 of the Constitution,
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and has a wide scope for criticism of the
judiciary. But wide though it is, it is not
absolute. No fundamental right enshrined in the
Constitution is absolute (9JJ Aadhaar judgment
in Puttaswamy case). And here, we have the
important power of contempt existing in the
panoply of court’s power. The court’s power of
contempt inheres by virtue of Article 129. It
should not be confused with the power of
Parliament to make a law with reference to
Article 19 (2) as a reasonable restriction. Law
only regulates the power. The power is plenary.
It is essential, so was put in the Constitution as
a plenary power. This power is intrinsic and the
core element of the independence of judiciary,
which is a basic feature. Both free speech and
the independence of judiciary are basic features
and sometimes may appear to be in conflict.
The pantheon of basic features is not always in
harmony. The pantheon has mutually warring
godheads (Justice SN Dwivedi in Kesavanand
case). Balancing and harmonising the two is
important. Neither can claim absolute
superiority over the other. Without a strong
judiciary, the fundamental rights would be
reduced to paper safeguards, and without
criticism, the judiciary will lose popular
correctives.
Judges are human and are therefore fallible.
Jurists and commentators play an important
role. The judiciary has to welcome the popular
gaze and scrutiny in order to be strong and
enjoy the faith of the people. The faith is earned
and not demanded or commanded. Strong
criticisms do not weaken the judiciary, they
strengthen it. A baseless criticism can always be
shrugged off. There should be no attempt on
the part of the judiciary to snuff out fair and
strong criticism made bona fide by using the
contempt power as a bludgeon.
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At the same time, critics must always be

conscious of the limits of fair criticism. Strong
criticism does not confer a right to slander
judges or court when verdicts are not to the
liking or do not fit into their worldview or
constitutional conceptions. When we move
from criticising the judgments to criticising the
judges and levelling charges of corruption, and
we bypass the internal machinery, then only
can truth be our defence. Bona fide opinion is
no answer. Bona fide may be relevant for
sentence or non-punishment; bona fide is not
the same thing as truth.

The fallacy in Bhushan’s defence was in pitching

his case on bona fide opinion. Truth demands
material and evidence of corruption. This is
important as the judges are not there to defend
themselves. The judgment in Prashant
Bhushan’s case correctly highlights this aspect.
Bona fide tweet opinion as regards corruption
in a few lines is hardly the way to level a charge
of corruption. It is an irresponsible act. Criticism
of a judge is an exercise to be undertaken with
responsibility. It is not a tweet hit and hides
behind bona fide opinion exercise. This is not an
exercise of freedom of speech. It is slander, but
something which the Supreme Court should
have been well advised to let it pass.

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