A) ABSTRACT / HEADNOTE

The judgment in In Re: Prashant Bhushan and Anr. represents a significant constitutional exposition on the contours of criminal contempt in the context of digital speech and public criticism of the judiciary. The Supreme Court initiated suo motu criminal contempt proceedings against a senior advocate for two tweets that allegedly scandalised the institution of the judiciary and undermined public confidence in the office of the Chief Justice of India. The Court examined the delicate balance between freedom of speech under Article 19(1)(a) and the reasonable restrictions under Article 19(2), particularly in relation to contempt of court. It reaffirmed that fair criticism of judges and judicial functioning is permissible, but distortion of facts coupled with imputations that erode institutional legitimacy crosses the constitutional threshold into criminal contempt. The Court emphasised that contempt jurisdiction is exercised not to protect individual judges but to safeguard the authority and dignity of the judicial institution as a pillar of democracy. The judgment also clarified the independent constitutional source of contempt powers under Article 129, holding that such powers are not curtailed by the procedural requirements of the Contempt of Courts Act, 1971. While holding the advocate guilty of criminal contempt, the Court discharged the intermediary platform, recognising its statutory safe harbour. The ruling thus occupies a pivotal place in contemporary constitutional discourse on judicial accountability, free speech, and democratic stability.

Keywords: Criminal Contempt, Freedom of Speech, Article 129, Judiciary, Social Media, Rule of Law

B) CASE DETAILS

C) INTRODUCTION AND BACKGROUND OF JUDGMENT

The judgment arose from unprecedented circumstances where social media expression by a senior advocate attracted the Supreme Court’s suo motu contempt jurisdiction. A private individual brought a tweet to the notice of the Court, allegedly scandalising the judiciary. The tweet criticised the conduct of the Chief Justice of India during the COVID-19 pandemic and accused the Supreme Court of denying citizens access to justice. A second tweet alleged that the Supreme Court and the last four Chief Justices had played a role in the “destruction of democracy”. The Court, acting on the administrative side, directed listing of the matter before a judicial bench, where suo motu cognizance was taken under Article 129.

The case presented a constitutional dilemma involving freedom of expression, judicial accountability, and institutional integrity. The Court was required to assess whether the tweets amounted to permissible criticism or crossed into the realm of criminal contempt by undermining public confidence in the judiciary. The background also involved the evolving role of digital platforms, raising questions on intermediary liability under the Information Technology Act, 2000. The case thus stood at the intersection of constitutional freedoms, contempt jurisprudence, and democratic discourse.

D) FACTS OF THE CASE

The proceedings originated from two tweets posted by Prashant Bhushan, a senior advocate of the Supreme Court. The first tweet alleged that the Chief Justice of India rode an expensive motorcycle belonging to a political leader without protective gear, while keeping the Supreme Court in “lockdown mode” and denying citizens access to justice. The second tweet suggested that historians would record that Indian democracy was destroyed in the last six years, with the Supreme Court and the last four Chief Justices playing a substantial role. A petition highlighting the first tweet was placed before the Court administratively.

Despite the absence of consent from the Attorney General, the Court directed the matter to be listed judicially. On 22 July 2020, the Court took suo motu cognizance of both tweets and issued notice to the alleged contemnors, including Twitter Inc. The advocate filed an extensive affidavit defending the tweets as bona fide criticism and an exercise of free speech. Twitter claimed protection as an intermediary under Section 79 of the IT Act. The Court examined factual inaccuracies in the tweets, particularly regarding the functioning of the Supreme Court during the pandemic, noting extensive virtual hearings conducted. The facts thus revolved around the content, context, intent, and impact of the tweets.

E) LEGAL ISSUES RAISED

i. Whether the Supreme Court could initiate suo motu criminal contempt proceedings without the consent of the Attorney General?
ii. Whether the impugned tweets constituted fair criticism protected under Article 19(1)(a)?
iii. Whether the tweets scandalised the judiciary and undermined public confidence amounting to criminal contempt under Article 129?
iv. Whether an intermediary platform could be held liable for contemptuous content posted by users?

F) PETITIONER / APPELLANT’S ARGUMENTS

The counsels for the alleged contemnor submitted that the tweets were expressions of anguish and opinion concerning the functioning of the judiciary during the pandemic. It was argued that criticism of judges and institutions is intrinsic to democracy and protected under Article 19(1)(a). Reliance was placed on P.N. Duda v. P. Shiv Shanker to contend that institutional criticism does not amount to contempt. It was further submitted that the tweets targeted individual Chief Justices and not the Court as an institution. The absence of Attorney General’s consent was also raised as a procedural bar.

G) RESPONDENT’S ARGUMENTS

The Attorney General and amicus submissions emphasised that the tweets were based on distorted facts and had a tendency to scandalise the judiciary. It was argued that imputations suggesting denial of access to justice and destruction of democracy directly attacked the institutional credibility of the Supreme Court. The respondents contended that Article 19(2) permits reasonable restrictions to protect the authority of courts. Twitter argued it was a neutral intermediary with no editorial control.

H) JUDGMENT

The Court held that its contempt jurisdiction flows directly from Article 129 and is not dependent on statutory consent requirements. It reaffirmed that fair criticism is permissible but must be bona fide and factually accurate. The Court found the first tweet misleading, noting that the Supreme Court conducted 879 virtual sittings and heard 12,748 matters during the relevant period. The second tweet was held to be a sweeping and malicious attack on the institution itself. The Court concluded that both tweets had the tendency to shake public confidence in the judiciary, thereby constituting criminal contempt. Twitter was discharged due to its intermediary status and prompt action.

a) RATIO DECIDENDI

The ratio lies in the principle that freedom of speech does not extend to malicious and factually incorrect attacks that undermine judicial authority. The Court held that Article 129 empowers it to act independently to protect institutional dignity. The distinction between criticism of an individual judge and an attack on the institution was central.

b) OBITER DICTA

The Court observed that judges must ordinarily respond to criticism with magnanimity. However, sustained attacks threatening democratic foundations warrant firm judicial response.

c) GUIDELINES

i. Fair and constructive criticism aimed at reform is permissible.
ii. Distortion of facts coupled with imputations against the institution invites contempt.
iii. Social media reach is a relevant factor in assessing impact.
iv. Intermediaries are protected when acting promptly and bona fide.

I) CONCLUSION & COMMENTS

The judgment reinforces judicial authority while delineating the limits of free speech. It underscores that democracy depends on trust in judicial institutions. The ruling serves as a cautionary precedent for digital expression concerning courts, while also clarifying intermediary liability.

J) REFERENCES

a) Important Cases Referred

• Brahma Prakash Sharma v. State of Uttar Pradesh [1953 SCR 1169]

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

• Re: S. Mulgaokar [1978 3 SCR 162]

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

• Arundhati Roy, In Re [2002 2 SCR 213]

b) Important Statutes Referred

• Constitution of India

• Contempt of Courts Act, 1971

• Information Technology Act, 2000