JUDGMENT :

1. Heard Shri K.K. Venugopal, learned Attorney General for India, Dr. Rajeev Dhavan, Shri Dushyant Dave, Shri C.U. Singh, learned senior counsel and the contemnor-Shri Prashant Bhushan.

2. After having adjudged Shri Prashant Bhushan, Advocate, guilty of contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and Shri Dushyant Dave, learned senior counsel appearing for the contemnor-Shri Prashant Bhushan raised the following arguments:

(i) That the copy of the petition on the basis of which the suo motu cognizance was taken by this Court with respect to first tweet, filed by Shri Mahek Maheshwari, was not furnished, in spite of the application having been filed by the contemnor. Thus, it could not be ascertained whether the complaint was mala-fide or even personally or politically motivated.

(ii) The factors relevant for sentencing are the offender, the offence, the convicting judgment, statutory or other defences relating to a substantial interference with justice, truth, bona-fides, and public interest in disclosure.

(iii) The contemnor is a lawyer of 35 years of standing, who has pursued public interest litigation successfully at some personal and professional cost. He got appreciation from the Court. He is a founding member of Campaign for Judicial Accountability, which includes several senior counsel of repute. He has brought certain corruption cases and causes to the Court such as V. Ramaswamy case, Coal Mining case, Goa Mining case, Orissa Mining case, an issue relating to the appointment of CVC, CBI Director’s case, Lok Pal case etc. In the public interest, he has filed several petitions like Narmada case, Bofors case, Police Reform case, Passive Euthanasia case, HPCL Privatization case, Street Vendors case, Rickshaw Pullers case, Singur Land Acquisition case, Draught Management, Gram Nyayalaya and Electoral Bond cases.

(iv) The nature of offences is another ingredient to be taken into consideration while imposing sentence:

(1) Offence must be clear without ambiguity.

(2) The potential offender must know/understand whether he/she is guilty of the offence. The offence of scandalizing the Court is notoriously vague. It has not been defined by the Statute. It is called “vague and wandering” jurisdiction. Reliance has been placed on Shreya Singhal vs. Union of India, 2015 (5) SCC 1. Such an offence has to be handled with care and used sparingly, as observed in Baradakanta Mishra vs. Registrar of Orissa High Court and Another, (1974) 1 SCC 374. There is inconsistency in various decisions relating to the conviction and sentence due to vagueness.

(v) The very jurisdiction of contempt is scandalizing and is vague and colonial. Several decisions have been relied upon where the Court has not even initiated contempt in such matters. In some of the countries, the contempt law being an archaic law has already been done away with. There cannot be any compromise with the Right to Free Speech and Opinions.

(vi) In the convicting judgment, reliance was placed on the decisions in P.N. Duda vs. P. Shiv Shanker and Others, (1988) 3 SCC 167, Brahma Prakash Sharma and Others vs. State of Uttar Pradesh, 1953 SCR 1169 and In Re: Hira Lal Dixit and Others, (1955) 1 SCR 677. The decision in E.M. Sankaran Namboodripad vs. T. Narayanan Nambiar, (1970) 2 SCC 325, has been