Making allegations of corruption against Supreme Court Judges without proof and only on the basis of the conduct of the Judge in passing orders is permissible and not a contempt.

Brief Background:-

1. Adv. Prashant Bhushan in 2009 gave interview to the media that Eight Chief Justices of India were corrupt.

Link:-  https://www.outlookindia.com/website/story/eight-of-the-last-sixteen-chief-justices-of-india-were-definitely-corrupt/267128

On the basis of said interview the court took cognizance of Contempt & issued notice to him. [Amicus Curiae Vs. Prashant Bhushan & Anr. (2010) 7 SCC 592] [Contempt Petition (Crl.) No. 10 of 2009 In Writ Petition (C) No. 202 of 1995].

Adv. Prashant Bhushan on 15^th September, 2010 filed his affidavit giving explanation that why he called the 8 CJI as corrupt.

Link:-  https://drive.google.com/file/d/1CaefycpTn5Ob2pv5U-xHysuro3BXS7Zz/view?usp=sharing

2. Para 6 of his affidavit reads thus;

“6. At the very outset however, I would like to again clarify my statement regarding Justice Kapadia’s handling of the Vedanta case I reiterate that I had not imputed nor meant to impute lack of financial integrity to Justice Kapadia. My statement as regards his actions in the Vedanta case was in response to a question about “other ways in which corruption manifests itself in the judiciary”; I was referring to other ways in which the judicial process can get derailed or corrupted, by which I meant, affected by extraneous considerations. I had understood the use of the word “corruption/corrupt” here in the wide sense in which the Supreme Court had interpreted in Dr. S. Dutt Vs. State of U.P (1966 1 SCR 493 at page 500), where the court had said, “The word ‘corrupt’ does not necessarily include the element of bribe taking. It is used in a much larger sense as denoting conduct which is morally unsound or debased. The word ‘corrupt has been judicially construed in several casex, but we refer here to two cases only. In Emperor Vs Rana Nana, Chief Justice Macleod considered the word to be of wider import than the word fraudulently or dishonestly and did not confine it to the taking of bribes or cases of bribery. In Bibkhranjan Gupta Vs. The King. Mr. Justice Sen dealt at length with this word. He was contrasting S. 196 with S. 471 and observed that the word corruptly was not synonymous with dishonestly or fraudulently but was much wider. According to him, it included conduct which was neither fraudulent nor dishonest if it was otherwise blameworthy or improper.“

3. He gave similar explanation for other Chief Justices of India.

4. Thereafter the matter was kept in cold storage for around 10 years.

5. In 2020 the matter was again taken on record for disposal.

6. On 17^th August 2020, the court framed three questions in Amicus Curiae Vs. Prashant Bhusan and Anr. (2020) 16 SCC 333 as under;

“2. The question that has been framed by this Court has certain far-reaching ramifications on which we would like to hear the learned counsel for the parties.

3. We would also like the learned counsel to address this Court on the following additional issues:

(i) 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?

(ii) What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting Judge?

(iii) 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?”

7. On 24.08.2020, Adv. Prashant Bhushan gave additional revised questions as under;

“1. Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of Court?

2. If the answer to Question 1 is in the affirmative, whether

the person who expresses such an opinion about the extent of corruption in a section of judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he bona fide held that opinion?

3. Since fetters on Article 19(1)(a) rights can only be imposed under Article 19(2) by a law made by the State which imposes reasonable restrictions inter alia in relation to contempt of court, and such law insofar as the Hon’ble Supreme Court is concerned can be framed by Parliament

under Article 246 read with Entry 77 in List I of the Seventh Schedule, and such law has in fact been framed by Parliament in 1971, whether the Supreme Court in

exercise of its powers under Article 129 can curtail free speech and expression only to the strict and limited extent permissible under the Contempt of Courts Act,1971?

5. (a) Whether the Contempt of Courts Act, 1971 ought to bear on the manner in which the vast discretion in relation to contempt proceedings under Articles 129

and 215 of the Constitution is exercised?

(b) Whether, in answer to the foregoing question, the conflicting pronouncements of this Hon’ble Court in Pallav Sheth v. Custodian (2001) 7 SCC 549 and in re Prashant Bhushan, SMC (Crim.) No. 1 of 2020 (decided 14th August 2020) deserve re-examination?

7. Whether, after the interconnected reading of Articles 14,19 & 21 in RC Cooper v. Union of India (1970) 1 SCC248 (11 Judges) and in Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Judges), the law of contempt should be subject to the concepts enumerated in these decisions, both in relation of the Contempt of Courts Act,1971 as well as Articles 129 & 215 of the Constitution of India?

8. Whether cases relating to Section 2(c)(i) of the Contempt of Courts Act 1971 decided before its enactment need to be re-examined in the light of the Contempt of Courts Act, 1971 and judgments interpreting it?

9. Whether the in-house procedure for dealing with complaints against judges laid down in C. Ravichandran Iyer v. Justice A.M. Bhattacharjee and

Ors. (1995) 5 SCC 457 prevents complainants, participants in the procedure and others from discussing the matter in the public domain?

10. Whether the decision in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 is compatible with constitutional limitations including those contained in Articles 19(2) and 14?”

8. The Court on 25^th August, 2020 in Amicus Curiae Vs. Prashant Bhusan and Anr. 2020 SCC OnLine SC 695 passed following order;

“1. There is paucity of time otherwise we would have heard the learned senior counsel with respect to the questions which have been proposed. However, since the matter is pending for the last 10 years, as prayed for, we fix the date for hearing in the month of September, 2020.”

9. Then on 13^th October, 2020 in Amicus Curiae Vs. Prashant Bhusan and Anr. 2020 SCC OnLine SC 1049 the Court passed following order;

“1. Pursuant to our order dated 10.09.2020, learned Attorney General has appeared in the matter. He has suggested to take up this matter on some other day so that in the meantime, he would consider of reformulating the points required to be addressed in these proceedings.”

10. Thereafter when matter listed on 30^th August, 2022 in Amicus Curiae Vs. Prashant Bhusan and Anr. 2022 SCC OnLine SC 1188, the Supreme Court closed the case by taking the note of explanation given by Adv. Prashant Bhusan and apology given by ‘Tahalka’ magazine editor. The order reads thus;

“1. The alleged acts of contempt, that gave rise to this Contempt Petition are stated to have been committed on or about 5^th September, 2009. The proceedings have been pending for 13 years.

2. In view of the explanation/apology tendered by the respondents, we do not deem it necessary to proceed with the contempt. Magnanimity and restraint are also facets of the majesty of this Court.

3. The contempt proceedings are accordingly dropped.”

11. In R. R. Parekh Vs. High Court of Gujrat (2016) 14 SCC 1, it is ruled as under;

“A Judge passing an order against provisions of law in order  to help a party is said to have been actuated by an oblique motive or corrupt practice – breach of the governing principles of law or procedure by a Judge is indicative of judicial officer has been actuated by an oblique motive or corrupt practice – No direct evidence is necessary – A charge of misconduct against a Judge has to be established on a preponderance of probabilities – The Appellant had absolutely no convincing explanation for this course of conduct – Punishment of compulsory retirement  directed.”

12. In The Registrar vs. Mr. S. Shankar 2022 SCC OnLine Mad ___ it is ruled as under;

“A] Making specific allegations of corruption against a Judge, based on prima facie evidence would definitely fall within the ambit of the right to freedom of speech and expression. It is the right of the contemnor.”