Case BriefsHigh Courts

Bombay High Court: The Division Bench of Dipankar Datta, CJ and M.S. Sonak, J., observed that,

“Court has the duty of protecting the interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt.”

Petitioner pointed out that respondent 1 by making false and scurrilous allegations against some judicial officers of the District Judiciary and uploading the said content on YouTube and WhatsApp committed criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971.

Further, he added that he obtained consent under Section 15 of the said Act from the Advocate General.

In view of the above background, the petitioner urged action against respondent 1.

Analysis, Law and Decision

Petitioner pointed that respondent 1 who was possibly based in the UK was in the habit of uploading videos on YouTube and WhatsApp Groups alleging that some of the members of the District Judiciary in Goa are corrupt.

Prima Facie, the content allegedly uploaded by respondent 1 was quite contumacious and might, if established, constitute criminal contempt.

Whether we ought to proceed any further in this matter or it is better to proceed with confidence in our institutions and our judicial officers who function to the best of their abilities without fear or favour?

Bench stated that the shoulders of this institution are broad enough to shrug off the scurrilous allegations.

“Dignity and authority of our judicial institutions are neither dependent on the opinions allegedly expressed by respondent 1 nor can the dignity our institution and its officers be tarnished by such stray slights or irresponsible content.”

High Court observed that inquiries made on the administrative side revealed the irresponsibility of the comments and the possible use of the uploader as a front by some disgruntled litigants.

Therefore, Court opined that to take this matter further might only serve to feed the publicity craze of those who uploaded the content to provoke rather than out of some concern to bring to fore some genuine grievance concerning the administration of justice in Goa.

Lord Denning summed up the above-stated approach in R V. Metropolitan Police Commr., (1968) 2 QB 150, Judge refused to be provoked by the scathing article by a Lawyer:

“Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

In the decision of Haridas v. Usha Rani Banik, (2007) 14 SCC 1, Court held that the majesty of law continues to hold its head high notwithstanding any scrullious attacks made by persons who feel that the law Courts will absorb anything and everything, including attacks on their honesty, integrity and impartiality. The Courts generally ignore irresponsible statements which are anything but legitimate criticism. This magnanimity is not its weakness but its strength.”

Another reference was made stating that the Chief Justice of the UK, deposing before the Phillimore Committee gave evidence to the following effect:

“Judges” backs have got to be a good deal broader than they were thought to be years ago.”

Lord Atkin also once said, “Courts are satisfied to leave to public opinion, attacks or comments derogatory or scandalous to them.”

Elaborating the above, Court stated that it is the people that have a vital stake in the free and effective administration of the Justice.

Concluding the matter, relying on the decision of Supreme Court in Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406, it was held that the power to punish for contempt is to be only sparingly exercised, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the people so that the administration of justice is not perverted, prejudiced, obstructed, or interfered with. [Kashinath Jairam Shetye v. David Clever, 2021 SCC OnLine Bom 2235, decided on 18-08-2021]

Case BriefsHigh Courts

Madras High Court: M. Dhandapani, J., expressed that:

“…advocates are not above law and, in fact, it is the advocates who have to give more respect to the law, as it is their bread and butter.”

“Court should not be a mute spectator to the legal gimmicks…”

Factual Matrix

Respondent Police had registered a case wherein 2nd petitioner was stopped by police officials on duty while she was proceeding in her car. Her car was stopped as the lockdown was imposed and on query she responded that she had come out for the purpose of purchasing medicines, however, respondent 2 informed that she had stated that she came out for purchasing fish.

It was also stated that she had no valid pass for going out during the lockdown period.

In light of the above incident, a challan of Rs 500 was issued

Crux of the matter

The whole melee started on the issuance of challan, after which 2nd petitioner started quarrelling with police officials.

Overall scene that has led to the present matter was that, petitioner 1 claimed and proclaimed that she was an advocate, used filthy, abusive and unparliamentary language, used derogatory words and castigated the police officials on duty and in fact threatened them that they will be stripped off their uniforms, if they tried to intervene and cause any hindrance to the movement of the petitioners.

Police officials were smeared all over with mud by 1st petitioner. Hence, for total violation of lockdown guidelines and non-adherence to the provisions of the Disaster Management Act and violation of the provisions of the Penal Code, petitioners were slapped with by filing of the above complaint and further leading to registration of case.

In Court’s earlier order, Bar Council of Tamil Nadu was directed to file a status report as to the mechanism that was in place for taking action against those unruly advocates, who cast a slur by their act, demeaning the whole legal profession without bothering about the impact of their acts on the disciplined and law-abiding members of the legal fraternity.

As per the status report, a mechanism was envisaged under Section 35 of the Advocates Act for proceeding against a member of the Bar for unprofessional conduct or other misconduct. However, the said provision spoke only about the complaint received on which action is initiated by the Bar Council.

Though, from the status report it was not clear as to the suo motu powers of the Bar Council in dealing with such instances, where the unprofessional act comes to the knowledge of the Bar Council, though not on the basis of a complaint, in which case, the matters such as the present one goes unnoticed, though it was in the public domain and reached the ears and eyes of the public through the visual media.

Sine the status report was silent, it led to the inference that generally no action was taken against such persons, if there was no complaint before the Bar Council.

It is also not clear whether the Bar Council has deliberated on this aspect of initiation of suo motu action against such unruly members of the Bar, who damage and stature and sanctity of the institution and also the members associated with the said institution.

Police personnel | Frontline Workers

It is to be pointed out that the police personnel has been one of the frontline workers in trying to curb the spread of the deadly virus by maintaining the lockdown guidelines imposed by the Government from time to time since March, 2020 and it is further to be pointed out that the pandemic is not yet over and caution has been given about the on-coming of the 3rd and 4th wave, which are predicted to have a still more detrimental impact on the human race.

Police personnels have not only been working overtime but also working with least concern for their family and themselves and have been dedicating their lives to the cause of humanity. In such a scenario, the least expected of the general public and also the intellectual group of legal professionals that they should be given the minimum basic respect and courtesy while handing them.

Advocates Stature

Advocate because of his avocation and his social-minded acts, rise up the pedestal and in fact that was the reason law gave them the stature to question even the police. But that stature should be used in a legal and lawful manner without maligning the reputation and position of any individual person or any official of the Government.

Further, it was elaborated that,

Usage of the position of advocate for other than just causes is nothing but an act of corrupt nature, which requires to be cut down by the sword held in the hands of the statue of Justice.

The doyens of the Bar, more especially the Madras Bar, have held aloft the rule of law for centuries together and Madras Bar is always looked upon with awe and admiration.

 A very significant observation made by the Court was that, nowadays, a few members, just to enrich themselves and for their selfish cause, throw to the winds the larger interest of the legal fraternity and cause irreparable damage to the other members of the legal profession by their acts, as has been done in the present case. 

Bench noted that 1st petitioner indulged in the above-stated act in Infront of her daughter 2nd petitioner who was said to be a 4th-year student. In such a backdrop, it is more expected of the 1st petitioner to teach the 2nd petitioner the ethics for following the rule of law, as otherwise, her act as in the present case, would engrave upon the mind of the 2nd petitioner, which would not be a welcome sign to the legal profession.

High Court expressed that if it allowed such mindset to go unnoticed, it would be a great injustice that this Court would be doing to the legal profession and also to the genuine, dignified and respectful legal professionals, who respect this profession and the robes they wear and would also be sending a wrong signal to send 2nd petitioner who is slowly climbing up the ladder to enter the legal profession.

In view of the above discussion, Court did not grant anticipatory bail to the 1st petitioner.

With regard to 2nd petitioner, Court stated that mere quarrelling with the police officials cannot be said to be a wrongful act, which would attract the penal provisions pressed into service by the respondents against 2nd petitioner and any view taken to the contra would be negating the rights guaranteed to the citizens under the Constitution.

Law Enforcement Agency and their role

The law enforcing agency is manned by persons, who have experience in dealing with criminals and not each and every individual, who commits a mistake should be branded as a criminal by bringing the individual within the four corners of the penal code.

Unnecessary infliction of charges of this nature on every individual would only make the individual look into the loopholes of the system and try to wriggle out of the same after committing mistakes, which should be avoided at all costs.

Hence, Bench stated that respondents shall ponder dropping of all the charges made against 2nd petitioner as there was no substance in the said charges.

Bar Councils’ Mechanism to deal with erring Advocates

Law has given the legal professional privilege and status, but the said privilege is to be used sparingly and only for upholding the majesty of law and following the rule of law. It is not given for the purpose of maligning the rule of law and demeaning the other members of the Bar to the benefit of the individual.

Any infraction by this Court in not safeguarding the interest of the legal profession would be a doom for the entire judiciary and the legal fraternity as a whole.

 Bar Council in its report submitted that it takes action only when it receives any complaint against any erring advocate.  However, what this Court was more bothered about was the fact that not all unprofessional conduct or other misconducts lead to a complaint being written by the Bar Council.

Any unprofessional conduct of a member of the legal profession, coming to the knowledge of the Bar Council through the visual media for which no complaint emanates from any quarter, can the Bar Council allow that instance to go unnoticed for the mere reason that the Advocates Act does not envisage suo motu action?

Court feels that it is high time the Bar Council enforces Section 35 of the Advocates Act, which gives it power and authority to initiate action suo motu on the incidents, which comes to its knowledge through the digital/print media, for which there is no complaint given by any individual.

In view of the above discussions, 2nd petitioner deserves anticipatory bail while dismissing the petitioner insofar as 1st petitioner.

Another issue that the Court dealt was a WhatsApp audio which was circulated by one R. Krishnamurthi, a member of the Bar who circulated the audio on social networking platforms attributing mala fides to the Bench.

advocate has further stated that I should recuse from hearing the case any further and has also attributed dishonesty and also stated that I am taking a lopsided view in favour of the law enforcing agency. Though I have called only for certain particulars, the advocate has gone on to make allegations that I have taken a biased view and I am leaning towards the law enforcing agency and has even casted aspersions against me openly in the social networking domain

Adding to the above, Bench also noted that the advocate imputed allegations against the Judiciary in falling to take any action against the law enforcing agency for very many irregularities committed by them during the pandemic situation, which are not in consonance with law.

The act of the advocate is very much contumacious and attracts initiation of criminal contempt proceedings. The whole audio paints a very gloomy picture and without any material aspersions are attributed against the Bench.

It was noted that the said Krishnamoorthy was a total stranger to the proceedings, yet he had made derogatory statements in the social media against the judicial functions of the Bench, including seeking Judge’s recusal, which was nothing but interference with the administration of justice.

Hence, High Court held that the act of aforesaid advocate attracted Section 2(c) of the Contempt of Courts Act.

This Court would not fall prey to such acts perpetrated by gossip mongers and unscrupulous elements, with a view to scuttle the judicial process and make the judiciary dance to their tunes.

Bench directed Registry to issue notice regarding initiation of Suo Motu Criminal Contempt proceedings against the said R. Krishnamoorthy as provided for under Section 14 of the Contempt of Courts Act and, thereafter, place the matter before the Hon’ble Chief Justice for being listed before the appropriate Bench for hearing. [Tanuja Rajan v. State, 2021 SCC OnLine Mad 2242, decided on 18-06-2021]


Advocates before the Court:

For Petitioners: Ms. A.Louisal Ramesh

For Respondent : Mr. A.Gopinath, GA (Crl. Side) for R-1 Mr. Haja Mohideen Gisthi for R-2


Madras HC | Is there any mechanism to take action against members of legal fraternity for their misbehaviour with officials on duty? Bar council of Tamil Nadu to respond

 

Case BriefsHigh Courts

Madhya Pradesh High Court: Atul Sreedharan, J., addressed the instant contempt petition. The Court while expressing concern over State inaction, stated, “The inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms.”

The present contempt petition was filed for non-compliance of order passed in W.P. No. 806 of 2013 on 18-01-2013. The facts of the case were that the petitioner who was a daily wage cook, employed in the Government Post-Matric Scheduled Caste Boys Hostel filed a petition seeking direction to the respondents, that regular pay-scale be granted to him in the light of circular dated 17-03-1978. It was submitted that the aforesaid circular gave daily wage employees engaged in the Tribal Welfare Department, benefit which had been given by the order passed in Dhanu Bai v. State of M.P., (W.A. No. 85/2011). The Court had ordered the State to consider if the order of Dhanu Bai case would squarely apply on the petitioner; and the State was given liberty to take into consideration any subsequent circular issued by the State Government in respect of grant of wages to daily wage.

The Court observed that, undue liberty that had been granted from time to time and again by this Court for the compliance of its orders, was being taken for granted. The abject disdain of the State and its functionaries to the orders passed by this Court was only on account of the leniency shown by this Court. Time and again, looking at the work load of the State and its functionaries, this Court has been loath to proceed against the guilty in contempt. This has emboldened them repeatedly and they put the orders passed by this Court in the back-burn. It had taken seven years to the State to come out with a pathetic response. The Court said,

The power that is given to the State and its functionaries are not without concomitant responsibility. Rudyard Kipling, a famous author whose association with the State is legendary on account of his work ” The Jungle Book”, has observed “power without responsibility – the prerogative of the ****** throughout the ages. Time and again, the State has, by its violation or its non-compliance to the orders passed by this Court; shown that it is an institution that prefers to have powers without responsibility.

 Considering that the respondents were aware with the order passed by this Court at least from 03-04-2013, if not before that, the Court remarked that, the inaction on the part of the State for a good seven years shows the sheer insensitivity of the State and its bureaucracy and is worthy of dereliction in the strongest terms. It was further stated by the Court, “The State through its inactivity is partly responsible for the flood of writ petition before this Court and after the orders passed by this Court, it leads to filing of the contempt petition because the State and its instrumentalities do not comply with the order passed by this Court within the time period given in the order.”

In the light of above, the instant petition was disposed of with the direction to the respondent to take a decision within a period of two weeks from passing of this order. [Sona Bai v. Principal Secretary Tribal Welfare Department, Mantralaya, CONC-1455-2014, decided on 13-01-2021]

Op EdsOP. ED.

The consent of the Attorney General to initiate criminal contempt proceedings against Kunal Kamra underlines a significant point – that the freedom of speech is subject to the law of contempt. Ubiquitous as it may seem, this fundamental norm appears to have been put into desuetude by the critics of the judiciary in recent times. This basic norm of Indian free speech jurisprudence may appear contrary to the American position where it was once believed that the law of contempt is limited by the first amendment.

Much has been said as to how the offence of scandalising the court is no longer relevant and should be done away with. Succour is sought from the unfair and not-so-lovely comments of the Privy Council in McLeod v.  St. Aubyn[1]:

…But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court.

Coloured population we may be, but our Court in Perspective Publications[2]  has clearly held that it is not correct that committals for scandalising the court has become obsolete. Further, what the advocates of unqualified free speech undermine is what is pertinently said by our Court in Rama Dayal Markarha v. State of M.P.[3]:

“14 In this country justice at grass-root level is administered by courts set up in rural backward areas largely inhabitated by illiterate persons. It is they who bring their problems to the court for resolution and they are the litigants, or consumers of justice service. Their susceptibility is of a different type than the urban elite reading newspapers and exposed to wind of change or even wind of criticism. The people in rural backward areas unfortunately illiterate have different kinds of susceptibilities. A slight suspicion that the Judges pre-disposed or approaches the case with a closed mind or has no judicial disposition would immediately affect their susceptibilities and they would lose confidence in the administration of justice. There is no greater harm than infusing or instilling in the minds of such people a lack of confidence in the character and integrity of the Judge…”

True it may be that in that case the Court was concerned with a mofussil court, but it must not be lost sight of that the higher judiciary in our country, right up to the Supreme Court, is flooded with litigation emanating from rural areas. That includes a large number of criminal cases where the accused may be seeking bail or anticipatory bail. Proliferation of social media in rural India is well known. Unabated circulation of reckless comments is bound to create an impression in those susceptible minds, who unfortunately constitute the vast majority.

The Contempt of Courts Act has been enacted keeping in mind the developments and trends in other countries, without ignoring the ground realties and prevalent socio-economic conditions in India. (Arundhati Roy, In re[4]).

Critics of our courts have been vociferous as to how the power to punish for contempt is antithetical to the freedom of speech and expression and how the law of contempt has become anachronistic. Much has been said about how the law of contempt has been diluted even in a conservative country like the United Kingdom. Lord Templeman in the Daily Mirror case and the opinion of Lord Denning in the Blackburn case have been quoted ad nauseam.

It was generally believed that the approach of the American courts was that the contempt power of all courts is limited by the guarantee of the first amendment against interference with freedom of speech or of the press. This stems from the opinion of Justice Hugo Black in Bridges v.  California[5]. However, even in a country as liberal as the United States in terms of freedom of speech and expression, the necessity to have the power to punish for contempt and drawing lines distinguishing free-speech from interference with the course of justice has been recognised. In that very case of Bridges[6], Felix Frankfurter, J. penned his dissenting opinion which has gained currency in later times. He took the view that the summary power over contemptuous publications is deeply rooted in common law and that the power to punish for contempt is not a censorship in advance but a punishment for past conduct and, as such, like prosecution for criminal libel is not offensive either to first or to the fourteenth amendments. In Gentile v. State Bar of Nevada[7],  is an instance where  Rheinquist, C.J. took the view that “the substantial likelihood of material prejudice” standard is a constitutionally permissible balance between the first amendment right of attorneys in pending cases and the State’s interest in fair trials.

Vilification of Judges is also bound to affect the psyche of Judges. Felix Frankfurter, J. in Pennekamp[8], rightly observed:

Judges, however stalwart, are human and the delicate task of administering justice ought not to be made unduly difficult by irresponsible print.”

In Attorney General v. BBC[9], Lord Dilhorne, disagreeing with the opinion of Lord Denning who wrote from the Court of Appeals, held:

It is sometimes asserted that no Judge will be influenced in his judgment by anything said by the media and consequently that the need to prevent the publication of matter prejudicial to the hearing of a case only exists where the decision rests with laymen. This claim to judicial superiority over human frailty is one that I find some difficulty in accepting……

                                                                                      (emphasis supplied)

Borrie and Lowe in their commentary[10] on contempt of court state that Lord Denning’s view is “more a statement of policy rather than literal truth”. Cardozo, in his “Nature of the Judicial Process” referring to the forces which enter into the conclusions of Judges” observed that “the great tides and currents which engulf the rest of men, do not turn aside in their course and pass the Judges by”.

The bottom line, therefore, is fair criticism – for that is what is permissible in our law. A judgement can be criticised respectfully, and instances closer home are aplenty. Seervai has severely criticised the judgement of  Bhagawati, J.  in E.P. Royappa[11]. He says the judgment suffers from the logical fallacy of undistrbuted middle, but the criticism is benign and is a pleasure to read. Constructive criticism, without attacking any particular Judge or court, has also been held to be out of the ken of contempt. A contempt petition was filed against Chief Justice E.S. Venkataramaiah for his interview lamenting the state of the judiciary as such. The Court declined to proceed with contempt.[12]

Consent for criminal contempt has been granted. The speaker claims to be a comedian. But it is the Attorney General who is standing up for a free and fearless judiciary by exercising his discretion wisely.

Kunal Kamra claims to be a comedian, but it is the Attorney General who is standing up for a robust judiciary. Freedom of speech does not licence vilification of Judges and the judiciary. Irresponsible onslaught on Judges is bound to affect their psyche. ‘There can be no claim of judicial superiority over human frailty’ said Lord Dilhorne, disagreeing with Lord Denning. Benign humour/satire a la Daphtary is welcome; not calculated vituperation clothed as humour. The power of contempt is warranted to ensure the free and fair administration of justice-free speech jurisprudence under our Constitution.


* Advocate-on-Record, Supreme Court. Author can be contacted at raghavendra@srivatsa.com

[1] McLeod  v. St. Aubyn, (1899) AC 549

[2] Perspective Publications (P) Ltd. v. State of Maharashtra, (1969) 2 SCR 779

[3] (1978) 2 SCC 630

[4] (2002) 3 SCC 343

[5] 314 US 252 (1941)

[6] Ibid.

[7] 501 US 1030 (1991)

[8] 328 US 331 (1946)

[9] 1981 AC 303 (HL)

[10] Borrie and Lowe, The Law of Contempt, (3rd Edn., 1996)

[11] E.P. Royappa v. State of T.N., (1974) 4 SCC 3

[12]Vishwanath v. E.S. Venkatramiah, 1990 SCC OnLine Bom 441

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Ashok Bhushan, R. Subhash Reddy and MR Shah, JJ has issued notice to cartoonist Rachita Taneja and comedian Kunal Kamra in two separate cases relating contemptuous social media posts.

After obtaining Attorney General for India KK Venugopal’s consent a law student had filed a petition against Taneja for initiating proceedings for contempt for publishing contemptuous posts on her social media pages, Sanitary Panels, which allegedly scandalise and undermine the authority of the Supreme Court. The petitioner has filed this contempt petition.

Similarly, an advocate and 2 law students sought for initiation of criminal contempt proceedings against the Kamra for publishing contemptuous tweets on his twitter handle.

While giving consent in Kunal Kamra’s case, the Attorney General had noted,

“I find that today people believe that they can boldly and brazenly condemn the Supreme Court of India its judges by exercising what they believe is their freedom of speech. But under the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court of India unjustifiedly and brazenly will attract punishment under the Contempt of Courts Act, 1972.”

The notices are returnable within six weeks and both the contemnors have been spared from appearing in person.

[Shrirang Katneshwarkar v. Kunal Kamra, 2020 SCC OnLine SC 1041, order dated 18.12.2020 and Aditya Kashyap v. Rachita Taneja, 2020 SCC OnLine SC 1042, order dated 18.12.2020]

Case BriefsHigh Courts

Kerala High Court: P. Somarajan, J., observed that,

“…fourth estate is not expected to shy away from the matters governing public importance, but it is their solemn duty to serve the society with the news item with its pros and cons so as to bring the society more functional and vigil.”

The Managing Editor, the Chief Editor and the Printer and Publisher of a daily newspaper came up to quash the proceedings initiated on the allegation of the offence under Section 500 of Penal Code, 1860 through a private complaint on which cognizance was taken by the magistrate and process was issued under Section 204 of Criminal Procedure Code, 1973.

The news item published was based on a report submitted by the Vigilance to set the criminal law in motion against the defacto complainant.

With reference to the news item published, it was clear that what was reported was the true version of report submitted by the Vigilance against the defacto complainant and three others after conducting a preliminary enquiry and recommended registration of crime against them.

It is true that they were referred to as accused persons in the news item, even before registration of crime in connection with the allegations.

While addressing the instant matter, Court observed that,

It is the duty of the fourth estate to publish all news materials, especially having public importance and it is their further duty to comment on the news material with its pros and cons so as to enlighten the society to remain vigil on the matters of public importance.

It was further noted that,

fourth estate being one of the rostrums to address and comment on each and every matter governing public interest/ public importance in a democratic society, the news item published with necessary comments, though sometimes contemptuous, may not itself amount to defamation as defined under Section 499 IPC unless the same is lacking in good faith and not concerning with a matter of public interest or public good.

Section 499 IPC Proviso 1

Bench observed that the said provision has a wide canvass in a Democratic system and right to publish a news item with its necessary comments and views though sometimes contemptuous, cannot be defeated unless malafides writ large on its face and not concerning with a matter of public interest.

Contemptuous

Court observed that, Contemptuous nature of news item, if it is connected with the imputation of truth, which requires publication for the public goodwill not attract the offence and there shall not be any misunderstanding with respect to the requirement to attract Section 499 IPC with the first exception.

Hence, in the instant case, news item published will not attract the offence of defamation as defined under Section 499 IPC.

Further, it was that the private complaint submitted was really intended to defeat the solemn function vested with the fourth estate and it will tell upon what is behind it. The said fact is an abuse of the process of court, liable to be quashed. [Philip Mathew v. State of Kerala, 2020 SCC OnLine Ker 5105, decided on 13-11-2020]

OP. ED.SCC Journal Section Archives

Abstract

The internet is one of the most used and innovative additions in the lives of people in this modern world. With the arrival of social media, the internet took socialising to a whole new level because initially it became the medium of sharing thoughts and soon grew into a medium of official communication between people and people, government and government and government and people. With all sorts of information on the social media, humour is one of the biggest user-generated and shared content. The internet brought the expression of humour in the form of satire, sarcasm, and wit with social media posts on the fingertips and memes all over the place, bringing out the dark sense of humour hidden in people as well. Getting in trouble for humour isn’t new, but with the vast reach of the internet, people posting from one corner of the country and someone getting immediately offended from another corner of the country has become common. This opens room for debate on the questions like ‘How can someone be arrested for a joke?’, ‘How can a joke be criminal?’, ‘Should law take social media seriously?’, ‘Is arresting for a social media post a violation of free speech?’ and ‘Do we really need laws to monitor everything on social media?’

The present elaborated discussion is a study of various cases in India related to humour and social media and observes how humour is used as a tool to commit crimes, and how laws are used against them, reasonably and unreasonably. It also observes the nature of people over the internet and how it affects their real lives. It also studies the laws present in India to analyse what the country requires in order to prevent the misuse of both, the laws and the social media, and in the end, concludes with a suggestion of separate Media Law and why it is necessary.

INTRODUCTION

Humour is to speech what salt is to food”.1

The internet is “a cooperative message-forwarding system linking computer networks all over the world”.2 The rise of the internet has given a new platform to the people and has grown enough to become a part of reality. From a common citizen’s social media profile to official government notifications being released on websites, with the passage of time, the internet not only remains a source of information and education, but also of global trade & commerce, of personal and professional connection, and of charity & crime.

The swiftness with which the internet has integrated into the lives of people, it would not be wrong to state that it is now an extension of their own personality. Due to the degree of anonymity and vast reach it provides, it brings out the untamed selves of people, which can be closely associated with what Sigmund Freud referred to as the Id,3 making the internet the “Wild West”.4 “Researchers assume that analysis of comic texts provides us with important insights about what is lurking in the social mind behind the façade of platitudes, conventions, and political correctness”.5 One of the basic reasons behind this is that, over the internet, there exists a very low chance of face to face backlash. Even though countries across the world have taken steps to counter it,6 a complete success in preventing Cybercrime is nowhere in sight.

Along with all types of content, the internet has now also become a platform for sharing humour in an electronic form, which can be done in the form of texts, images, videos or other formats. “Rather than light-hearted entertainment, jokes are in fact important arenas in which sensitive and troubling issues are processed and negotiated”.7 Sigmund Freud happens to be the most important authority on jokes and he called them “a combination of [comic] technique and [humorous] thought”.8 Another popular term on the internet in terms of humour is ‘Memes’. The term meme was coined by Richard Dawkins in his book ‘The Selfish Gene’. The Oxford Dictionary defines meme as “An element of a culture that may be considered to be passed on by non-genetic means, especially, imitation”.9 The term is basically associated with pictorial or video jokes, perhaps because they (as a form of presentation of humour or idea), grew on the internet the most, where they spread, most of the times as a trend, through immediate sharing or imitation.

[Read more]


Note: This Article was first published in RMLNLU CMET Law Journal 6 CMET (2019) 77.  The extract has been reproduced with the kind permission of RMLNLU.

* Student, BA LLB (Hons), KIIT School of Law Bhubaneswar, Odisha.

1 ‘Political Satire in Modern India’ (The Hindu, 6 April 2018) <https : //thehindu.com/thehindu/lr/2003/04/06/stories/2003040600010100.htm.> accessed 14 January 2019.

2 Douglas A Downing and others, Dictionary of Computer and Internet Terms (10th edn, Barron’s Educational Series Inc US 2009) 256.

3 Sigmund Freud, The Ego and the Id (first Published 1923, Courier Dover Publication 2018) 8.

4 Megan Carpentier, ‘Online Abuse : How Different Countries Deal with It’ (The Guardian, 12 April 2016) <https : //theguardian.com/technology/2016/apr/12/online-abuse-how-harrassment-revenge-pornography-different-countries-deal-with-it.> accessed 15 January 2019.

5 Limor Shifman and Dafna Lemish, ‘“Mars and Venus” in Virtual Space : Post-feminist Humor and the Internet’ (2011) 28 (3) Critical Studies in Media Law 253, 254.

6 The Guardian (n 257).

Case BriefsHigh Courts

Allahabad High Court: Disgruntled with the respondent for non-compliance with the Court’s earlier orders, Vivek Kumar Birla, J. allowed the present contempt application and issued a show-cause notice to the concerned delinquent officers.

The present contempt application has been filed by the applicant pleading for an action against the respondent for wilful disobedience of the judgment and order dated 18-09-2018 passed by this Court in Special Appeal Defective No. 656 of 2018 and the order dated 17-09-2019 passed in Contempt Application (Civil) No. 5773 of 2019

Counsel for the applicant, Kushmondeya Shahi has submitted that the copy of the order had been served to the respondent and yet nothing was done in that regard. Left with no other option, the applicant filed the present application seeking relief. The respondent had been granted more time for compliance vide order dated 17-09-2019 but even after the expiry of the period, any decision is yet to be taken by the respondents.

Upon careful perusal of the facts and circumstances, the Court has found it fit to initiate contempt proceedings against the respondent.

Lamenting over the sorry state of affairs with respect to the compliance of its orders, the Court has passed strict remarks taking the concerned administrative officers to the task. The remarks have been reproduced below for reference:

“This Court is noticing every day that apparently the officers concerned, who were directed to act as per the order of the Court, are not complying with the orders at the first instance and the aggrieved party is forced to file contempt application and even after granting further time to comply with the order of the writ Court passed in contempt application, the orders not being complied with. Apparently, the Officers are becoming habitual and not complying with the orders of this Court at the first instance.

This is a sorry state of affairs and it is expected that the opposite party shall make every effort and shall also issue necessary orders in this regard to the subordinate authorities to strictly comply with the orders at the first instance itself, otherwise the Court will take a serious view of the matter.”

 In view of the above, the Court has allowed the present contempt application issuing notice to the respondent to appear in person and show cause as to why charges be not framed against him under Section 12 of the Contempt of Courts Act for wilful disobedience of the aforementioned orders. [Arun Kumar v. Renuka Kumar, Contempt Application (Civil) No. 3033 of 2020, decided on 08-09-2020]


Yashvardhan Shrivastav, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has said that it would wait for the order of the Gujarat High Court before passing any orders in the issue relating to withdrawal of senior Designation of advocate Narendra Oza.

The Gujarat High Court had, on August 26, 2020, rejected the request for restoration of the gown of the senior counsel and had rejected the apology offered by Oza. The matter has been listed for further consideration September 17, 2020. Taking note of this fact, the bench said,

“On hearing learned counsels for the parties, we are of the view it would be appropriate that both aspects are taken together after the orders are pronounced in the contempt petition. List on 29th September, 2020, at the end of the Board.”

The Court gave liberty to the Oza’s counsel to serve a copy of the appeal, in case Oza is aggrieved by the orders in the contempt petition and of sentence, if any, on the counsel for the High Court and if the same is served well in advance, response to the same can be filed by the High Court.

The bench of SK Kaul and Ajay Rastogi, JJ had earlier, on August 6, 2020, said,

“Grievances may exist but can always be conveyed in a better language. Systems can be improved but imputations should not unnecessarily be made.”

Noticing that the contempt proceedings are still pending and in view of his unconditional apology both before the Full Court, the contempt proceedings and before the Supreme Court, the bench had considered it appropriate that the contempt court itself first applies its mind to the issue.

Oza, who is also the the President of the Gujarat High Court Advocates’ Association, was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”. Read more

[Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 724, order dated 09.09.2020]


Also read:

Gujarat HC withdraws GHCAA President Yatin Oza’s Senior Advocate status

Guj HC | Mere apology may be no reason to an act, utterance or publication of contempt which scandalize the majesty of Court; Advocate Yatin Oza’s unconditional apology rejected

Guj HC | President GHCAA levelled allegations of corruption, malpractices against HC Registry & called this August Institution a ‘Gambling Den’; Contempt Proceedings initiated

Yatin Oza offers unconditional apology; SC says one can improve system without imputations

Full Court of Gujarat HC rejects Yatin Oza’s unconditional apology and denies to re-confer his Senior Advocate Designation

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has sentenced advocate Prashant Bhushan with a fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years. It had found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets.

In the 82-pages long verdict on sentence, the Court said that it not on one occasion but on several occasions, not only gave opportunity but also directly or indirectly pursuaded the contemnor to express regret. Further, the Attorney General had also suggested that it was in the fitness of things that a contemnor expresses regret and withdraws the allegation made in the affidavit in reply, however, the request was not heeded to by the contemnor and he gave wide publicity to the second statement submitted before the Court on 24.08.2020 prior to the same being tendered to the Court. He also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of the Court.

“If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of  Re.1/­ (Rupee one).”

KEY HIGHLIGHTS FROM THE VERDICT

On Judges being the silent sufferers of allegations against them

The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to press. It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media

“Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with dignity.”  

On the Press Conference dated 12.01.2018 of the then four senior-­most Judges of the Supreme Court

Concept of equality before law, what is permissible not as to what is impermissible. Truth can be the defence to the Judges also, but they are bound by their judicial norms, ethics, and code of conduct.

“We hope it was the first and the last occasion that the Judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when allegations made, if any, publicly cannot be met by sufferer Judges.”

On Prashant Bhushan being actively involved pursuing various Public Interest Litigations

“Merely because a lawyer is involved in the filing of the public interest litigation for the public good it does not arm him to harm the very system of which he is a part.”

An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer

On the Statements made by retired Judges, journalists, and others in Press/Media

The Court cannot abdicate its duty and has to be uninfluenced by the statements published in various articles published in the media and opinions expressed therein. It has to decide the case uninfluenced by such opinions.

On the argument that the Court will be criticized, in case it inflicts any punishment upon Prashant Bhushan

“While exercising our judicial functions, we cannot take into consideration whether we will be praised or criticized for the judgment which we render.  We are required to decide the cases on the basis of the law as it correctly stands, in our perception and understanding.  We are not expected to decide the matter on the basis as to whether there will be criticism of the judgment or not. We have to be always ready for its fair criticism.”

On the lawyers and litigants going to press or media in a sub judice matter

Prashant Bhushan talked to the press and media and the statement which was pursuant to the order dated 20.08.2020, was also published well in advance in extenso, word to word, in the newspaper and media. If such kind of action is resorted to in a sub judice matter, that too by an advocate who is facing a criminal contempt, it virtually tantamount to using a forum or platform which is not supposed to be used ethically and legally.

“In a sub judice matter, releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making and is clearly an attempt to coerce the decision of the Court by the influence of newspaper and media, which cannot be said to be conducive for the fair administration of justice and would further tantamount to undue interference in the independent judicial making process which is the very foundation of institution of administration of justice.”

On sentencing

  • The contention that he is a lawyer having of 35 years of standing and has also pursued various public interest litigations would no doubt  be a relevant factor while balancing the decision to be taken by the Court.  However, at the same time, the uncalled statements made in the affidavit for pursuing truth as a defence can also not be ignored.
  • Lawyers’ noble profession will lose all its significance and charm and dignity if the lawyers are permitted to make any malicious, scandalous and scurrilous allegations against the institution of which they are part. The lawyers are supposed to be fearlessly independent and robust but at the same time respectful to the institution.
  • It is apparent that in both the statements made by the contemnor, he is sticking to his ground, and he is not at all realizing that any wrong was done by him to the institution. At the same time, he has expressed the faith in the institution and he has submitted that an apology cannot be a mere incantation and an apology has to be as the Court itself put be sincerely made.  He has further stated that he made the statement bona fide and with truthful details which had not been dealt with by the Court.  He is insistent and has no remorse about what he has stated in the defence.
  • Bhushan not gone by the advice of the learned Attorney General to withdraw the same and to take if off the record. Being a person well versed with law, he ought to have given due weightage to the advice rendered by the learned Attorney General who has pleaded not to sentence him, at the same time maintained that the statements made in the affidavit in reply could not be taken into consideration for considering the case of Mr. Prashant Bhushan of truth as a defence.

“When senior most functionary in the legal profession of the stature of the learned Attorney General was giving an advice to express regret and withdraw the wild allegations a lawyer of such a long standing was expected to give due respect to it.  Even our request made to him has gone in vain.”

  • Simple issuance of warning is not going to suffice in the instant case.

“We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance and ego, which has no place to exist in the system of administration of justice and in noble profession, and no remorse is shown for the harm done to the institution to which he belongs.  At the same time, we cannot retaliate merely because the contemnor has made a statement that he is neither invoking the magnanimity or the mercy of this Court and he is ready to submit to the penalty that can be lawfully be inflicted upon him for what the Court has determined to be an offence.”

Sentence 

A fine or Re.1/­ (Rupee one) to be deposited with the Registry by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“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.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up 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. Bhushan 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.

[In re: Prashant Bhushan, 2020 SCC OnLine SC 698, decided on 31.08.2020]


Read more on the judgment here

Read Advocate Prashant Bhushan’s supplementary reply here

Hot Off The PressNews

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari has reserved its verdict on sentence after it found advocate Prashant guilty of criminal contempt on 14.08.2020 in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets.

Asking advocate Prashant Bhushan to tender an apology for his remarks, the Court said that there is “no harm in apologising if a mistake has been made”.

During the hearing, Senior Advocate Dr Rajeev Dhavan, appearing for Bhushan, argued

“This institution must have criticism and not just criticism but extreme criticism.” 

He further said that his client, Bhushan, had in his submissions stated that he has the highest regard for the institution but he has his opinion about last four Chief Justices of India (CJIs) about the way in which this court has gone wrong.

“We criticise this court when we feel sincere about this institution. We know our responsibility and our respect for the institution. Don’t make him a martyr,” 

To this, Justice Mishra said,

“If we are going to destroy each other, who will have faith in this institution? You have to be tolerant, see what the court is doing and why. Don’t just attack. Judges can’t go to press to defend themselves or explain. Whatever we have to say, we have to write in our judgments,” 

Expressing his displeasure over the way the tweets were written, Justice Arun Mishra, said, that judges are condemned, their families are humiliated and they can’t even speak.

“You are a leader of the bar. We expect you to be impartial. You may have love and affection for anyone but we want you to be fair. Don’t take sides,”

Yesterday Bhushan, in a supplementary reply in the suo motu contempt proceedings, submitted that if he retracts his statement before the court that he otherwise believes to be true would amount to the contempt of his conscience in his eyes.

“If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem,”

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“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.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up 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. Bhushan 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.

(With inputs from ANI)


Read more on the judgment here

Read Advocate Prashant Bhushan’s supplementary reply here

Hot Off The PressNews

Advocate Prashant Bhushan, who has been held guilty of contempt of court for his contemptuous tweets has refused to retract his statements or tender an apology in the matter. Last week, the 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, jj has asked advocate Prashant Bhushan to take 2-3 days to reconsider his ‘defiant statement’.

Bhushan, in a supplementary reply in the suo motu contempt proceedings, submitted that if he retracts his statement before the court that he otherwise believes to be true would amount to the contempt of his conscience in his eyes.

“If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem,”

He said that he has nothing but the highest regard for the institution of the Supreme Court.

“I believe that the Supreme Court is the last bastion of hope for the protection of fundamental rights, the watchdog institutions and indeed for constitutional democracy itself. It has rightly been called the most powerful court in the democratic world, and often an exemplar for courts across the globe. … Today in these troubling times, the hopes of the people of India vest in this Court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive,”

Bhushan said that this casts a duty, especially for an officer of this court like himself, to speak up, when he believes there is a deviation from its sterling record.

“Therefore I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples’ rights,”

He further said that his tweets represented this bonafide belief that he continues to hold and added that the public expression of these beliefs was in line with his higher obligations as a citizen and a loyal officer of the court.

“… an apology for expression of these beliefs, conditional or unconditional, would be insincere. An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be sincerely made. … This is especially so when I have made the statements bonafide and pleaded truths with full details, which have not been dealt with by the Court,”

Reserving the order on sentence on August 20, 2020, the Court had said,

“In case, apology is submitted, the case to be posted for consideration on the same, on 25.08.2020.”

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“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.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up 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. Bhushan 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.

(With inputs from ANI)

Read more on the judgment here

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, jj has asked advocate Prashant Bhushan to take 2-3 days to reconsider his ‘defiant statement’, refusing to apologise for his contemptuous tweets. Bhushan said that he will consult his lawyers and think over the Court’s suggestion in 2-3 days.

“We have given time to the contemnor to submit unconditional apology, if he so desires.”

When the Attorney General KK Venugopal urged the Court not to award any punishment to Prashant Bhushan in the contempt case, the Court said that it cannot consider the said request Bhushan reconsiders his earlier stand of not apologising for his tweets.

“The tone, tenor and content of Prashant Bhushan’s statement makes it worse; is it defence or aggravation.”

The bench said that it can be very lenient if there is realization of mistake.

At the outset of the hearing, Bhushan had submitted before the Court that the arguments on quantum of sentence in the contempt proceedings, in which he has been held guilty, be heard by another bench. The bench rejected the submission but gave assurance to Bhushan that no punishment will be acted upon till his review against the order convicting him in the case will be decided.

Reserving the order, the Court said,

“In case, apology is submitted, the case to be posted for consideration on the same, on 25.08.2020.”

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdictsaid that:

“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.”

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up 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. Bhushan 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

[In re Prashant Bhushan, 2020 SCC OnLine SC 663, order dated 20.08.2020]

(With inputs from PTI)

Read more on the judgment here

Hot Off The PressNews

“Trenchant criticisim, commentary, satire and homour help build institutions in a free society.”

After a group of lawyers, released a Statement appealing the Supreme Court to not give effect to the judgment dated 14.08.2020 that found advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets, the Bar Association of India has also expressed dismay on the manner in which Suo Moto contempt jurisdiction was exercised by the Supreme Court against a member of legal profession.

“Judgments that curb the exercise of freedom of speech and expression by a member of the Bar by resort to suo motu powers is conspicuously old fashioned. The reputation of the Supreme Court of India cannot be dislodged by a couple of tweets.”

Stating that the stature of the Supreme Court would stand enhanced by allowing criticism rather than taking umbrage at such remarks, BAI writes that the exercise of contempt jurisdiction in this manner has potential for more self harm than the avowed purpose of safeguarding the prestige of the institution.

Yesterday, a battery of lawyers, appealed to the Supreme Court that,

“… the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt.”

The Statement went on to state that the judgment does not restore the authority of the court in the eyes of the public. Rather, it will discourage lawyers from being outspoken. From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary.

“A bar silenced under the threat of contempt, will undermine the independence and ultimately the strength of the Court. A silenced bar, cannot lead to a strong court.”

The Bar Association of India is Federation of the Supreme Court, High Court, District Court and other local Bar Associations, Law Societies in India and the Society of Indian Law Firms (SILF), cumulatively representing as a voluntary body almost the entire legal profession, apart from having a distinguished individual membership.

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdict, said that:

“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.”


Read more on the judgment here

Read the Public Statement by Advocates on Prashant Bhushan’s contempt case here

Case BriefsSupreme Court

Supreme Court: After it refused to accept the explanation of advocate Prashant Bhushan in the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the 3-judge bench of Arun Mishra, BR Gavai and MR Shah, JJ has framed larger questions in the matter that will have far-reaching ramifications.

On August 10, 2020, in Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 635, the Court had noticed that that further hearing was required in the matter.

“Before reaching to any finding whether the statement made as to “Corruption” would per se amount to Contempt of Court, the matter is required to be heard. “

Issues framed

  • In case a public statement as to corruption by a particular Judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard ?
  • What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting Judge ?
  • Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

The Court will now hear the matter on August 25, 2020.

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 651, order dated 17.08.2020]


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Hot Off The PressNews

“An independent judiciary consisting of independent judges and lawyers, is the basis of the rule of law in a Constitutional democracy. Mutual respect and the absence of coercion, are the hallmarks of a harmonious relationship between the bar and bench. Any tilting of the balance, one way or the other, is deleterious both to the institution and the nation.”

A battery of lawyers, including Senior Advocates have released a Statement appealing the Supreme Court to not give effect to the judgment dated 14.08.2020 that found advocate Prashant Bhushan guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. 

“… the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt.”

The Statement reads that an independent judiciary does not mean that judges are immune from scrutiny and comment. It is the duty of lawyers to freely bring any shortcomings to the notice of bar, bench and the public at large.

“While some of us may have divergent views on the advisability and content of Mr. Prashant Bhushan’s two tweets, we are unanimously of the view that no contempt of court was intended or committed especially when contrasted with the normal standard that “Justice is not a cloistered virtue… She must be allowed to suffer the scrutiny and respectful, even though outspoken comments of ordinary men”.”

While Mr. Prashant Bhushan as a lawyer of good standing of the Supreme Court, may not be an ordinary man, his tweets do not say anything out of the ordinary, other than what is routinely expressed about the court’s working in recent years by many on public fora and on social media. Even some retired judges of the Supreme Court have expressed somewhat similar views.

The Statement goes on तो state that the judgment does not restore the authority of the court in the eyes of the public. Rather, it will discourage lawyers from being outspoken. From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary.

“A bar silenced under the threat of contempt, will undermine the independence and ultimately the strength of the Court. A silenced bar, cannot lead to a strong court.”

The lawyers also express a deep sense of disappointment about the Supreme Court’s disregard of the presence of the Attorney General KK Venugopal during the hearing and its refusal to seek his valuable opinion in the matter, which is mandated even as per contempt law.

The Statement concludes by saying that:

“We do believe that the Supreme Court will hear the Voice of the People expressed all around in last 72 hours on the subject and take corrective steps to prevent miscarriage of Justice and restore the confidence and respect that Citizens have generally reposed in it.”

Here’s the list of the Lawyers who have signed the Statement:

Background of the issue:

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ, in a 108-pages long verdict, said that:

“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.”


Read more on the judgment here

Read the Public Statement on Prashant Bhushan’s contempt case here

Case BriefsSupreme 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.”

Supreme Court: The 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ has, in a 108-pages long verdict, held advocate Prashant guilty of criminal contempt in the suo motu contempt petition initiated against him after he criticised the Supreme Court and the sitting and former CJIs in a couple of tweets. It held,

The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’.

Stating that in order to protect the larger public interest, such attempts of attack on the highest judiciary of the country should be dealt with firmly, the Court noticed that Advocate Bhushan has been practicing for last 30 years in the Supreme Court and the Delhi High Court and has consistently taken up 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. Bhushan 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. He is expected to act as a responsible officer of this Court.

Stressing upon the importance of Judiciary and the need to protect the institution of the Supreme Court from malicious attacks, the Court said that 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.

“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 attack on the very foundation of the institution of the judiciary and thereby damaging the very foundation of the democracy.”

What prompted the Court to initiate the contempt proceedings

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

On Tweet 1

Advocate Bhushan told the Court that the said tweet is divided the tweet into 3 parts:

  • First part: democracy has been substantially destroyed in India during the last six years.
  • Second part: the Supreme Court has played a substantial role in allowing the destruction of the democracy
  • Third part: the role of the last 4 Chief Justice’s in particular in allowing it.

While the Court did not go into the truthfulness or otherwise of the first part of the tweet, inasmuch as it did not want to convert the proceeding into a platform for political debate, it said that the said the remaining parts of the tweet undermine the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.

Stating that an attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand, the Court said that 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.”

It further noticed that 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 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.”

Even on Bhushan’s 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 part is regarding the role of last four Chief Justices in particular, in allowing it.

ों Tweet 2

This tweet was also considered in two parts:

  • First part: “CJI rides a 50 lakh motorcycle belonging to a BJP leader at Raj Bhavan, Nagpur without a mask or helmet…”
  • Second part: “…at a time when he keeps the SC in lockdown mode denying citizens their fundamental rights to access justice.”

While the Court noticed that the first part of the tweet could be said to be a criticism made against the CJI as an individual and not against the CJI as CJI. However, the second part of the tweet attempts to give and impression to a layman 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.

On this the Court said 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. In any case, even during the said period, the vacation Benches of the Court were regularly functioning.

The statement, that the Supreme Court is in lockdown is factually incorrect even to the knowledge of the contemnor. 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 said period, this Court has dealt with 686 writ petitions filed under Article 32 of the Constitution of India.”

The Court refused to accept the contention 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 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.”

[In Re Prashant Bhushan, 2020 SCC OnLine SC 646, decided on 14.08.2020]


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Case BriefsSupreme Court

Supreme Court: In the 2009 contempt petition against Advocate Prashant Bhushan and former Tehelka Tarun Tejpal, the bench headed by Arun Mishra, J refused to accept the explanation of advocate Bhushan and said that further hearing is required in the matter.

“Before reaching to any finding whether the statement made as to “Corruption” would per se amount to Contempt of Court, the matter is required to be heard. “

The will now hear the matter on August 17, 2020.

Earlier, on August 4, the Court had said that there is a thin line between freedom of speech and the need to protect the dignity of the judiciary as an institution and it sought to balance both. The hearing in the 11-year-old case which pertains to an interview given by Bhushan to Tehelka where he said that half of past 16 Chief Justices of India (CJIs) were corrupt.

On July 22, 2020, in another matter, a 3-judge bench of Arun Mishra, B R Gavai and Krishna Murari, JJ had issued notice in the suo motu contempt petition initiated by the Supreme Court against Advocate Prashant Bhushan and Twitter.

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

In his reply to the suo motu petition, Bhushan said that

“The expression of opinion, however outspoken, disagreeable or unpalatable to some, cannot constitute contempt of court…”

According to PTI, in a 142-page reply affidavit filed through lawyer Kamini Jaiswal, the activist lawyer has referred to several Supreme Court judgments, speeches of former and
serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases. He has also stood by his two tweets.’

“To prevent a citizen from forming, holding, and expressing a bonafide opinion’ in public interest on any institution that is a creature of the Constitution is not a reasonable restriction and violates the basic principles on which our democracy is founded.”

The affidavit said the power of contempt under Article 129 of the Constitution should be utilized to aid in administration of justice and not to shut out voices that seek accountability from the court for the errors of omissions and commissions.

Senior advocate Dushyant Dave, appearing for advocate Prashant Bhushan, in the suo motu contempt petition initiated by the Supreme Court against Advocate Bhushan, asked the Court,

“This is criticism… Why don’t you take it objectively?”

He also submitted that if a judge is defamed, he should seek relief in the ordinary laws of defamation.

He further submitted that a sitting judge, who went on to become a CJI, had ‘criticised’ the functioning of the Supreme Court in a presser in January 2018. Justice Ranjan Gogoi, one of the four judges who had met the media, went on to become the 46th Chief Justice and Justice Bobde’s immediate predecessor. Dave, in his submission said,

“The holding of January 2018 press conference was fully justified. If the then CJI was not listening to their points, what could they do? If citizens stand up and criticise the system, say everything is not hunky-dory, how can it be contempt?”

The Court has reserved the judgment in the said matter. Read more

[Amicus Curiae v. Prashant Bhushan, 2020 SCC OnLine SC 635, order dated 10.08.2020]


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Case BriefsSupreme Court

“Grievances may exist but can always be conveyed in a better language. Systems can be improved but imputations should not unnecessarily be made.”

Supreme Court: In the case, where Gujarat High Court had withdrawn the Senior Advocate status of advocate Yatin Oza after he had levelled charges of corruption against the registry of the Gujarat High Court, the bench of SK Kaul and Ajay Rastogi, JJ deferred the matter for 2 weeks and said that

“as a leader of the Bar and as a senior member, a far greater responsibility is expected of him to not only be more restrained but also to guide the younger lawyers in these difficult times.”

The Court was apprised of the fact that Oza has been a leader of the Bar and has made considerable contribution but at times has exceeded his brief in expressing his sentiments in a language which is best avoided. This appears to be another incident of the same nature as in the past.

Oza, however, told the Court there was an unqualified apology even before the Full Court and before the Court seized of the contempt matter. He submitted that his statements were uncalled for which he deeply regrets and assured not to ever in future repeat such conduct.

On this the Court noted,

“the petitioner himself has been quite apologetic before us and states that he should not have used the words he used and those words were used in the heat of the situation where everybody is troubled by the prevailing problem of Covid and the grievances of the younger members of Bar.”

Noticing that the contempt proceedings are still pending and in view of his unconditional apology both before the Full Court, the contempt proceedings and before the Supreme Court, the bench considered it appropriate that the contempt court itself first applies its mind to the issue.

Oza said that he has no hesitation in saying that he has apologized unconditionally and will apologise unconditionally in the contempt proceedings and pray for bringing to closure those proceedings. He said that he will also make a representation to the Full Court stating that the deprivation of his gown for the existing period already is sufficient punishment for him and he stood chastened and that the Full Court may reconsider the aspect of the restoration of the senior’s gown rather than depriving him for all times to come.

The Court, hence, deferred the matter by two weeks in the hope that, in the meantime, a finality would be given to the matter by the contempt court. The matter will now be heard on August 26, 2020.

Advocate Yatin Oza, who is the president of the Gujarat High Court Advocates’ Association (GHCAA) was stripped off his Senior Advocate designation. This has been done after Advocate Oza had levelled charges of corruption against the registry of the Gujarat High Court. The Court cited Rule 26 of the High Court of Gujarat (Designation of Senior Advocates) Rules 2018, which states “In the event a Senior Advocate is found guilty of conduct which according to the Full Court disentitles the Senior Advocate concerned to be worthy of the designation, the Full Court may review its decision to designate the person concerned and recall the same”. Read more

[Yatin Narendra Oza v. High Court of Gujarat, 2020 SCC OnLine SC 628, order dated 06.08.2020]


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Case BriefsSupreme Court

Supreme Court: “This is criticism… Why don’t you take it objectively?” asked senior advocate Dushyant Dave, appearing for advocate Prashant Bhushan, in the suo motu contempt petition initiated by the Supreme Court against Advocate Bhushan.

The matter deals with certain tweets made by Bhushan. He had recently criticised the Supreme Court and the sitting and former CJIs in a couple of tweets which prompted the Supreme Court to initiate suo motu contempt petition against him. Here are the tweets:

Stating that the right to dissent and free speech cannot be controlled by contempt proceedings, Dave told a 3-judge bench of Arun Mishra, BR Gavai and Krishna Murari, JJ that

“Contempt is to be used sparingly and only for administration of justice. If a judge is defamed, he should seek relief in the ordinary laws of defamation,”

He further submitted that a sitting judge, who went on to become a CJI, had ‘criticised’ the functioning of the Supreme Court in a presser in January 2018. Justice Ranjan Gogoi, one of the four judges who had met the media, went on to become the 46th Chief Justice and Justice Bobde’s immediate predecessor. Dave, in his submission said,

“The holding of January 2018 press conference was fully justified. If the then CJI was not listening to their points, what could they do? If citizens stand up and criticise the system, say everything is not hunky-dory, how can it be contempt?”

The Court has reserved the judgment.

In January, 2018, the senior most judge of the Supreme Court of India, Justice J. Chelameswar, along with Justice Ranjan Gogoi, Justice Madan B. Lokur and Justice Kurian Jospeh, held a press conference at his residence to put an end to the speculations making rounds over the differences between the judges and the then Chief Justice of India, Justice Dipak Misra, over the assignment of cases.

A letter addressed to the then CJI Justice Dipak Misra by the aforementioned judges stated:

“There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justices of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs. We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution to some extent.” 

[In Re Prashant Bhushan, SMC (Crl.) No. 1/2020, order dated 05.08.2020]

(With inputs from The Hindu)


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