A) ABSTRACT / HEADNOTE

The judgment in In Re: Prashant Bhushan and Anr. represents one of the most significant contemporary decisions on the law of criminal contempt of court, particularly in the context of social media speech by members of the legal profession. The Supreme Court was seized of suo motu contempt proceedings arising out of two tweets published by a senior advocate, which were found to scandalize the institution of judiciary and undermine public confidence in the administration of justice. The Court examined the constitutional balance between freedom of speech under Article 19(1)(a) and the inherent contempt jurisdiction of the Supreme Court under Article 129.

A central question before the Court concerned the scope and applicability of truth as a defence under Section 13 of the Contempt of Courts Act, 1971, as amended in 2006. The contemnor asserted that his statements were bona fide, truthful, and made in public interest. The Court, however, laid down that truth can be a valid defence only when it satisfies the twin requirements of public interest and bona fides. Upon close scrutiny, the Court held that the defence raised was neither bona fide nor in public interest, and that the affidavit filed in support of the defence aggravated the contempt rather than purging it.

The judgment also addresses the special responsibility of advocates as officers of the court, the limits of permissible criticism of judges, and the impropriety of making public statements or engaging with the media during the pendency of sub judice proceedings. While affirming the conviction for criminal contempt, the Court exercised restraint at the sentencing stage by imposing a symbolic fine of Re. 1, coupled with conditional consequences upon default, thereby underscoring both judicial magnanimity and institutional authority.

Keywords: Criminal Contempt, Freedom of Speech, Truth as Defence, Judicial Accountability, Social Media and Judiciary, Advocate’s Duty

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGEMENT

The present judgment arose from suo motu cognizance taken by the Supreme Court on account of two tweets posted by a senior advocate concerning the functioning of the judiciary and the role of the Supreme Court over the preceding years. The matter assumes constitutional importance because it tests the contours of judicial tolerance, democratic dissent, and the boundaries of professional conduct expected from advocates who are integral to the justice delivery system.

The Court had earlier, by judgment dated 14.08.2020, found the contemnor guilty of criminal contempt. The present decision primarily deals with the question of sentencing and the consideration of the defence of truth raised by the contemnor. The proceedings were marked by extensive arguments on freedom of speech, proportionality, colonial legacy of contempt law, and the alleged vagueness of the offence of “scandalizing the court”.

The contemnor consistently declined to tender an unconditional apology, asserting that doing so would amount to contempt of his conscience. This compelled the Court to examine whether mere assertion of bona fides or subjective belief can neutralize the objective tendency of statements that erode public confidence in the judiciary. The judgment situates itself within a long line of precedent which recognizes that while judges must be open to criticism, the institution cannot be rendered vulnerable to scurrilous attacks that it cannot publicly rebut.

The Court also confronted the increasing challenge posed by social media platforms, where instantaneous and far-reaching dissemination of opinions magnifies the potential impact on public faith in constitutional institutions. The background thus reflects a complex intersection of constitutional freedoms, professional responsibility, and institutional integrity.

D) FACTS OF THE CASE

The proceedings originated from two tweets posted by the contemnor, a practicing advocate with over 35 years of standing. The first tweet depicted the Chief Justice of India astride a motorcycle during the COVID-19 pandemic, accompanied by a remark suggesting denial of access to justice to citizens. The second tweet alleged that the Supreme Court, particularly over the preceding six years, had played a role in the destruction of democracy.

A petition was initially filed complaining of the first tweet. The Supreme Court, however, chose to initiate suo motu contempt proceedings. With respect to the second tweet, cognizance was taken independently based on its publication in a national daily. Notices were issued, and the contemnor filed a detailed reply affidavit asserting truth as a defence, supported by wide-ranging allegations against sitting and retired judges, including former Chief Justices.

During the hearing, senior counsel appearing for the contemnor initially refrained from pressing the defence on the ground that it would further malign the Court. Subsequently, however, the contemnor insisted upon the defence of truth and filed supplementary statements reiterating his position. Notably, these supplementary statements were released to the media prior to being placed before the Court.

The Court found that the contemnor neither expressed remorse nor showed willingness to withdraw the allegations. Even after conviction, he continued to justify the tweets as part of his higher constitutional duty. This conduct became a material factor in assessing both the nature of contempt and the appropriate sentence.

E) LEGAL ISSUES RAISED

i. Whether the tweets published by the contemnor amounted to criminal contempt by scandalizing the court?
ii. Whether truth can be accepted as a valid defence under Section 13 of the Contempt of Courts Act, 1971 in the present case?
iii. Whether the exercise of contempt jurisdiction violates Article 19(1)(a) of the Constitution?
iv. Whether an advocate enjoys a higher degree of latitude in criticising the judiciary?
v. Whether prior publication of statements during sub judice proceedings constitutes interference with administration of justice?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for the contemnor submitted that the tweets were expressions of bona fide opinion and constituted fair criticism in public interest. It was argued that the offence of scandalizing the court is vague and colonial in nature, and that truth ought to be ordinarily permitted as a defence under Section 13. Reliance was placed on judicial precedents emphasizing free speech, proportionality, and democratic dissent.

It was further contended that the contemnor’s long record of public interest litigation, professional standing, and commitment to constitutional causes ought to weigh heavily in his favour. The defence asserted that the conviction itself required reconsideration and that no sentence should follow.

G) RESPONDENT’S ARGUMENTS

The Attorney General submitted that while fair criticism is permissible, the tweets crossed the permissible limit by attributing motives and undermining institutional credibility. It was argued that the defence affidavit aggravated the contempt and that the allegations against judges who could not defend themselves were wholly unjustified.

While urging the Court to show magnanimity at the sentencing stage, the Attorney General nonetheless conceded that the defence of truth could not be sustained under Section 13, as it lacked both bona fides and public interest.

H) RELATED LEGAL PROVISIONS

i. Article 129, Constitution of India
ii. Article 19(1)(a) and 19(2), Constitution of India
iii. Section 2(c), Contempt of Courts Act, 1971
iv. Section 13, Contempt of Courts Act, 1971
v. Section 3(22), General Clauses Act, 1897

I) JUDGEMENT

The Court reaffirmed that freedom of speech, though fundamental, is not absolute. It held that the contempt jurisdiction under Article 129 is not inconsistent with Article 19(1)(a), as reasonable restrictions under Article 19(2) permit action where speech undermines the administration of justice.

On the defence of truth, the Court emphasized the twin requirements under Section 13: public interest and bona fides. After examining the affidavit and conduct of the contemnor, the Court held that the defence was politically motivated, reckless, and derogatory, and therefore not entitled to protection.

The Court also condemned the release of statements to the media during pendency of proceedings, holding such conduct to be an attempt to influence judicial decision-making. Taking into account the contemnor’s persistent defiance and lack of remorse, the Court rejected the plea for a mere warning.

Nevertheless, exercising judicial restraint, the Court imposed a symbolic fine of Re. 1, with default consequences of simple imprisonment for three months and debarment from Supreme Court practice for three years.

a) RATIO DECIDENDI

The truth as a defence in contempt proceedings is not automatic and can be invoked only when it demonstrably serves public interest and is raised bona fide. Freedom of speech does not extend to scurrilous attacks that erode public confidence in the judiciary.

b) OBITER DICTA

Judges, by convention and ethics, cannot publicly respond to allegations, making it imperative that the Court protect institutional dignity. Advocates, as officers of the court, owe a higher duty of restraint.

c) GUIDELINES

i. Truth as defence must satisfy statutory thresholds.
ii. Advocates must avoid public commentary on sub judice matters.
iii. Fair criticism must not attribute motives to judges.
iv. Apology must be genuine to purge contempt.

J) REFERENCES

a) Important Cases Referred

• Indirect Tax Practitioners’ Association v. R.K. Jain, (2010) 8 SCC 281

• Subramanian Swamy v. Arun Shourie, (2014) 12 SCC 344

• P.N. Duda v. P. Shiv Shanker, [1988] 3 SCR 547

• E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, [1971] 1 SCR 697

b) Important Statutes Referred

• Contempt of Courts Act, 1971

• Constitution of India

• Advocates Act, 1961