- (1.) Heard Shri K.K. Venugopal, learned Attorney General for India, Dr. Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior counsel, and the contemnor-Shri Prashant Bhushan.
(2.) After having adjudged Shri Prashant Bhushan, Advocate, guilty of contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and Shri Dushyant Dave, learned senior counsel appearing for the contemnor-Shri Prashant Bhushan raised the following arguments: - (i) That the copy of the petition on the basis of which the suo motu cognizance was taken by this Court with respect to first tweet, filed by Shri Mahek Maheshwari, was not furnished, in spite of the application having been filed by the contemnor. Thus, it could not be ascertained whether the complaint was mala fide or even personally or politically motivated. (ii) The factors relevant for sentencing are the offender, the offence, the convicting judgment, statutory or other defences relating to a substantial interference with justice, truth, bona fides, and public interest in disclosure. (iii) The contemnor is a lawyer of 35 years of standing, who has pursued public interest litigation successfully at some personal and professional cost. He got appreciation from the Court. He is a founding member of Campaign for Judicial Accountability, which includes several senior counsel of repute. He has brought certain corruption cases and causes to the Court such as V. Ramaswamy case, Coal Mining case, Goa Mining case, Orissa Mining case, an issue relating to the appointment of CVC, CBI Director's case, Lok Pal case etc. In the public interest, he has filed several petitions like Narmada case, Bofors case, Police Reform case, Passive Euthanasia case, HPCL Privatization case, Street Vendors case, Rickshaw Pullers case, Singur Land Acquisition case, Draught Management, Gram Nyayalaya, and Electoral Bond cases. (iv) The nature of offences is another ingredient to be taken into consideration while imposing sentence; (i) Offence must be clear without ambiguity. (ii) The potential offender must know/understand whether he/she is guilty of the offence. The offence of scandalizing the Court is notoriously vague. It has not been defined by the Statute. It is called "vague and wandering" jurisdiction. Reliance has been placed on Shreya Singhal vs. Union of India, 2015 (5) SCC 1. Such an offence has to be handled with care and used sparingly, as observed in Baradakanta Mishra vs. Registrar of Orissa High Court and another, (1974) 1 SCC 374. There is inconsistency in various decisions relating to the conviction and sentence due to vagueness. (v) The very jurisdiction of contempt is scandalizing and is vague and colonial. Several decisions have been relied upon where the Court has not even initiated contempt in such matters. In some of the countries, the contempt law being an archaic law has already been done away with. There cannot be any compromise with the Right to Free Speech and Opinions. (vi) In the convicting judgment, reliance was placed on the decisions in P.N. Duda vs. P. Shiv Shanker and Others, (1988) 3 SCC 167, Brahma Prakash Sharma and Others vs. The State of Uttar Pradesh, 1953 SCR 1169, and In Re: Hira Lal Dixit and two others, (1955) 1 SCR 677. The decision in E.M. Sankaran Namboodripad vs. T. Narayanan Nambiar, (1970) 2 SCC 325, has been superseded by P.N. Duda (supra). In so far as the decision in E.M. Sankaran Namboodripad (supra) is concerned, the same would not be relevant inasmuch as the same stands overruled by P.N. Duda (supra). Similarly, reliance on the judgment in C. K. Daphtary and Ors. vs. O. P. Gupta and Ors., (1971) 1 SCC 626, is also not relevant inasmuch as the said judgment is delivered prior to amendment of Contempt of Courts Act, 1971 (for short 'the Act'), vide which Section 13(b) was brought on statute book, so as to allow truth as a defence. The Court has to exercise jurisdiction with great care and caution and only in cases that are clear beyond reasonable doubt. In Re: S. Mulgaokar, (1978) 3 SCC 339, various guidelines have been laid down by this Court. They are, free market of ideas, fair criticism in good faith when it is in the public interest, the surrounding circumstances, the person who is making the comments, his knowledge in the field regarding which the comments are made and the intended purpose. After considering all these guidelines, an advocate should be punished by exercising extreme caution only in the case where the tendency is to create disaffection and disrepute to erode the judicial system. Though the convicting judgment, on the one hand cites various decision on balance, on the contrary holds the contemnor guilty for the fair criticism made by him. (vii) There is no conflict between the constitutional jurisdiction under Articles 129, 215 of the Constitution of India, and the Contempt of Courts Act. In Pallav Sheth vs. Custodian and Ors., (2001) 7 SCC 549, itwas laid down that the powers of punishment for contempt under Article 129 of the Constitution of India have to be exercised in consonance with the Contempt of Courts Act, 1971. (viii) Besides that, provisions in Sections 8 and 9 and newly amended Section 13(a) of the Act requires that the Court cannot impose a sentence unless it is satisfied that contempt is of such a nature that substantially interferes or tends substantially to interfere with the due course of justice. Thus, special responsibility is cast on the Court to examine the extent of interference. The provisions of newly amended Section 13(a) amply make it clear that the Court is required to assess the situation itself. However, in the convicting judgment no such inquiry has taken place and as such an order of sentence cannot be passed. Truth should ordinarily be allowed as a defence unless the Court finds, that it is only a camouflage to escape the consequences of the deliberate attempt of scandalizing the Court. Section 13 of the Act enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it satisfied that such a defence is in the public interest and the request for invoking the defence is bona fide. Reliance is placed on Subramanian Swamy vs. Arun Shourie, (2014) 12 SCC 344. In so far as the first tweet is concerned, the tweet is an expression of opinion by Shri Prashant Bhushan that due to the Courts not functioning physically the litigants are deprived of real access to justice. It is submitted that this opinion also finds support from the observations made by this court In Re: Financial aid for members of Bar affected by a pandemic (In Suo Moto Writ Petition No.8/2020) that due to the suspension of physical functioning of the Courts, the lawyers have been deprived of sources of earning their livelihood. (ix) With respect to the second tweet, this is again an expression of opinion by Shri Prashant Bhushan. It was submitted that this opinion has been shared by many others including the retired judges of this Court. Reference was also made to the Press Conference held on 12.01.2018 by the Sitting Judges of this Court. The role of the Supreme Court and the last four Chief Justices is detailed in the reply affidavit. The reply is backed up by details and materials and how and why Shri Bhushan came to form opinion reflected in the tweet. The defence of truth was not examined at all in the convicting judgment and the same needs to be examined at the stage of sentencing in compliance with Section 13(b) of the Act. (x) Article 19(1)(a) guarantees Freedom of Speech and Expression. Provisions in Articles 129 and 142(2) of the Constitution of India, cannot override Article 19(1) (a) and 19(2) of the Constitution of India. Free Speech is a highly valued right and is essential for democracy. In a democracy, there is a right to dissent. There is the freedom to build an opinion. Publication in good faith is suggested for the Press, as defined in General Clauses Act in Section 3(22), it is a valid defence, if done honestly, whether it is done negligently or not. (xi) It was submitted that while applying the Principle of Proportionality the balance will have to tilt in favour of the rights as against restrictions, inasmuch as the rights are fundamental in nature. The opinions of the contemnor were bona fide and devoid of malice. Thus, the decision with respect to the conviction is required to be recalled, and in such an event, no sentence can be imposed. It was submitted that the judgments are open to scrutiny and this Court should welcome outspoken comments including criticism by ordinary citizen. (xii) Debarring an advocate from appearing is to be done only in rare cases, as a last resort, only after giving requisite notice for the same, as held in R.K. Anand vs. Registrar, Delhi High Court, (2009) 8 SCC 106. (xiii) There should not be an attempt to coerce the contemnor into making an apology on the basis that nothing else would be acceptable.
(3.) At the beginning of the proceedings itself, we had called upon Shri K.K. Venugopal, learned Attorney General for India, to address us. In the morning session, we have heard him at great length. Learned Attorney General stated that this Court, by showing magnanimity, should not impose any sentence on Shri Prashant Bhushan. He submitted that the tweets made by Shri Prashant Bhushan could be considered as bona fide criticism in order to seek improvement in the functioning of the institution. He further stated, that taking into consideration the causes represented by Shri Prashant Bhushan in various public interest litigation and the service rendered by him to different classes of society by bringing their issues to the notice of this Court, the Court should consider not imposing any sentence on him.;