British Judge Lord Denning had observed in the matter of Metropolitan Police Commissioner ; that even though the Court has the jurisdiction for contempt, they shall never use it. The reason being that the judges, in contempt cases, do have a certain amount of personal interest. This is against the legal principle that one cannot be a judge in their own case. Lord Denning said “We do not fear criticism, nor do we resent it.”

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.

This is just a tip in the ice berg ; further to note that Justice K Joseph. opined just a day before that -Under Article 145(3) of the Constitution of India, there shall be a quorum of minimum five Judges for deciding any case involving substantial questions of law as to the interpretation of the Constitution. In both the suo motu contempt cases, in view of the substantial questions of law on the interpretation of the Constitution of India and having serious repercussions on the fundamental rights, the matters require to be heard by a Constitution Bench,” he said in a statement.

The important elements which should not be overlooked are —

Senior advocates on Thursday ( 20 th Aug , 2020 ) expressed concern over Attorney General (AG) KK Venugopal not being heard in detail during the Prashant Bhushan contempt-of-court hearings in the Supreme Court.

And further to note KK Vengupoalji too opined that Supreme Court shouldn’t impose any punishment on Prashant Bhushan.

Further to note ; the International Covenant on Civil and Political Rights (ICCPR), to which India is a party, permits restrictions on the right to freedom of expression to maintain “public order,” but only by law and when necessary for a legitimate purpose. The United Nations Human Rights Committee, which monitors state compliance with the ICCPR, has said that contempt of court proceedings and any penalty imposed “must be shown to be warranted in the exercise of a court’s power to maintain orderly proceedings.”

The guidelines to implement the 2002 Bangalore Principles of Judicial Conduct, which supplement the UN Basic Principles on the Independence of the Judiciary, state that “since judicial independence does not render a judge free from public accountability, and legitimate public criticism of judicial performance is a means of ensuring accountability subject to law, a judge should generally avoid the use of the criminal law and contempt proceedings to restrict such criticism of the courts.

Blackstone had this to say about this type of contempt proceeding:

… contempts may arise.. .by speaking or writing contemptuously of the court, or judges, acting in their judicial capacity… and by anything in short that demonstrates a gross want of that regard and respect, which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.”

The pertinent question of law that has arisen is “ Has the Tweets in anyway caused a contempt of the court when the court was in motion or has it been made against a judge who was acting in his or judicial capacity ?

The court said in Boorde v. Commonwealth,” “Considerable latitude is permissible in the criticism of judicial decisions already rendered, but when such criticism necessarily involves the future actions of the courts in pending causes a stricter rule, for obvious reasons, must be applied.”’ This view tends toward consistency with the majority of the jurisdictions, i.e., whether or not a state- ment will tend to influence a judge’s decision is a very material factor in contempt cases. However, the court saw no reason to distinguish between past,and pending cases, except that in the former there should be more leniency; it felt that it was as unjust to al- low a remark concerning a past case which might influence a judge in a future case as it would be to permit such remarks concerning a pending case. The position which the court took is understandable in view of the situation which existed at the time the decision was made.

The modem view, indeed, as expressed by Lord Atldn in 1936 is
that “Justice is no cloistered virtue, she must be allowed to suffer the scrutiny
and respectful even though outspoken comments of ordinary men.(Ainbard v. A.G. of Trinidad & Tobago [1936] 1 All E.R. 704 at p. 709.)The sting,
however, lies in the qualifying word “respectful”, for who is to determine
what is “respectful” and what is “hostile” criticism? These are elusive and
subjective criteria in the application of which honest men will differ widely.

However, when Mr. Justice Black of the United State Supreme Court pointed out that, “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt, much more than it would enhance respect. ( Times-Mirror Co. v,. Superior Court (1942), 86 L.Ed. 192, at p. 207. 9 5)

I also need to add the fact that -Mr Bhushan said he regretted asking why Justice Bobde was not wearing a helmet, since the bike was on a stand.In his affidavit he said before the Hon'ble Court —

“At the outset I admit that I did not notice that the bike was on a stand and therefore wearing a helmet was not required. I therefore regret that part of my tweet. However, I stand by the remaining part of what I have stated in my tweet. I tweeted the above because I was increasingly anguished by the lack of regular physical functioning of the court that was leading to the hearing of very few matters and that too by the unsatisfactory mode of video conferencing,”

But the affidavit continued and said What I have tweeted is thus my bonafide impression about the manner and functioning of the Supreme court in the past years and especially about the role of the last four Chief Justices have played vis a vis their role in being a check and balance on the powers of the executive, their role in ensuring that the supreme court functions in a transparent and accountable manner and was constrained to say that they, contributed to undermining democracy,” the affidavit said.Freedom of expression and the concomitant right to criticise includes a fair and robust criticism of the judiciary. This cannot amount to contempt of court or lowering the dignity of the court in any manner,” it added.

In any case no one has forgotten , four judges of the Supreme Court held a press conference back in January 2018, in which they warned of how the judiciary was facing threats to its independence and criticised the CJI at the time.

In conclusion , I quote , Lord Atkin . saying that “ Justice is not a cloistered virtue,” . “It must suffer the scrutiny and outspoken comments of ordinary men”. and as i understand in any case the ramifications of such a decision for free speech is immense. and that for a democracy to thrive ,if Ld Advocate Prashant Bhusan does not tender unconditional apology Supreme can call Ld Advocate Prashant Bhusan .& Ld Advocate General along with Senior members of the Bar for a consensus