In Vishal Tiwari vs. Union of India (2025), Supreme Court's Division Bench of Chief Justice of India and Justice Sanjay Kumar dismissed the writ petition seeking initiation of suo motu criminal contempt proceedings against Nishikant Dubey, the respondent No. 4 for having made deliberate and scandalizing remarks against the Supreme Court of India and the Chief Justice of India; for a direction to the Union of India, Ministry of Home Affairs, to lodge a First Information Report under the Bharatiya Nyaya Sanhita, 2023; and for a direction to the Union of India, Ministry of Home Affairs, to issue an advisory to all Chief Secretaries to curb hate and provocative speeches by political parties and their leaders relating to the Waqf (Amendment) Act, 2025, and its hearing before the Court. This petition was filed under Article 32 read with Article 129 of the Constitution of India.
The Court observed: "Normally, this Bench would not have heard this matter but as we are not inclined to issue notice and the Waqf matter [W.P. (C) Nos. 276/2025, 314/2025, 284/2025, 331/2025 & 269/2025] was heard by the two of us, we would dispose of the writ petition with some observations and, accordingly, we have proceeded to consider the issue."
The order dated May 5, 2025 reads: "Judicial pronouncements result in an order or a decision which may aggrieve a party or sometimes a section of the public. Critical analysis and objective criticism of an order’s reasoning or even its outcome is protected under the fundamental right to free speech and expression under clause (a) of Article 19(1) of the Constitution of India. The power of criminal contempt, however, is exercised by courts when publication by words, spoken or written, by signs, or by visible representation or otherwise, in terms of clause (c) of Section 2 of the Contempt of Courts Act, 1971, is with the intent to scandalize or lower the authority of the courts; or tends to scandalize or lower such authority; prejudices or interferes or tends to interfere with the due course of judicial proceedings; or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any manner. Exercise of the power of contempt, nevertheless, is discretionary."
It further reads: "We have examined the contents of the assertions made by respondent no. 4, which no doubt tend to scandalize and lower the authority of the Supreme Court of India, if not interfere or tend to interfere with the judicial proceedings pending before this Court, and have the tendency to interfere and obstruct the administration of justice. The statements made reflect the clear intent to impute motives to the Bench itself by naming the Chief Justice of India as “responsible for all the civil wars happening in India” and “in order to incite religious wars in this country, it is only and only the Supreme Court that is responsible”. Sections 3 and 4 of the Act carve out exceptions which, prima facie, are not attracted. There is no ‘civil war’ in India."
The Court observed: "In our opinion, the comments were highly irresponsible and reflect a penchant to attract attention by casting aspersions on the Supreme Court of India and the Judges of the Supreme Court. This apart, the statements show ignorance about the role of the constitutional courts and the duties and obligations bestowed on them under the Constitution. At the same time, we are of the firm opinion that courts are not as fragile as flowers to wither and wilt under such ludicrous statements. We do not believe that the confidence in and credibility of the courts in the eyes of the public can be shaken by such absurd statements, though it can be said without the shadow of doubt that there is a desire and deliberate attempt to do so. We, therefore, refrain from taking any action."
The order recalled that this Court in, In Re S. Mulgaokar, [(1978) 3 SCC 339] had observed that the judiciary is not immune from criticism, but when criticism is an obvious distortion or a gross misstatement, which is made in a manner designed to lower the respect of the judiciary and destroy public confidence, it should not be ignored. However, the power to initiate contempt is discretionary in its unsheathed exercise. Every commission of contempt need not erupt in an indignant committal or levy of punishment, however deserving it may actually be. It is so because judges are judicious, their valour non-violent and their wisdom springs into action when played upon by a volley of values, the least of which is personal protection. Courts believe in values like free press, fair trial, judicial fearlessness and community confidence. Thus, courts need not protect their verdicts and decisions by taking recourse to the power of contempt. Surely, courts and judges have shoulders broad enough and an implicit trust that the people would perceive and recognize when criticism or critique is biased, scandalous and ill-intentioned. Each branch of the State in a democracy, be it the legislature, executive or the judiciary, especially in a constitutional democracy, acts within the framework of the Constitution. It is the Constitution that is higher than all of us. It is the Constitution which imposes limits and restrictions on the powers vested in the three organs. The power of judicial review is conferred by the Constitution on the judiciary. Statutes are subject to judicial review to test their constitutionality as well as for judicial interpretation. Therefore, when the constitutional courts exercise their power of judicial review, they act within the framework of the Constitution.
It underlined that "In the course of dispensation of justice, courts draw inspiration from consecrated principles. The judiciary, as an institution, is accountable to the people through various mechanisms. Arguments take place in open court. Decisions and judgments are reasoned. Judicial procedure ensures transparency and accountability. Judgments are put to scrutiny and critique. Decisions are debated and if required, corrected by exercise of right of appeal, review, in curative jurisdiction and by reference to a larger bench. The judiciary’s legitimacy and credibility are rooted in public trust and are maintained through fair, impartial and transparent decision-making."
The Court observed: "To deny the power of judicial review to the courts would be to rewrite and negate the Constitution, as the power of judicial review is one of the cornerstones of democracy. This power is conferred in express terms by Articles 32 and 226 by the framers of the Constitution and hinges on the system of checks and balances. We believe that the general public does know the relationship amongst the three wings of the Government and their different roles. They are aware of the function and the role of the judiciary, which is to judicially review the actions of the other branches and to evaluate whether the other branches are acting lawfully under the Constitution. Judicial decisions are made in accordance with legal principles and not in keeping with political, religious or community considerations. When citizens approach the court praying for exercise of the power of judicial review, they do so in furtherance of their fundamental and/or legal rights. The court’s consideration of such a prayer is the fulfilment of its constitutional duty."
The judgement concluded:"While we are not entertaining the present writ petition, we make it clear that any attempt to spread communal hatred or indulge in hate speech must be dealt with an iron hand. Hate speech cannot be tolerated as it leads to loss of dignity and self-worth of the targeted group members, contributes to disharmony amongst groups and erodes tolerance and open-mindedness, which is a must for a multi-cultural society committed to the idea of equality. Any attempt to cause alienation or humiliation of the targeted group is a criminal offence and must be dealt with accordingly."
It is germane to recollect that Supreme Court Bar Association had passed a resolution dated April 21, 2025 condemning the "intemperate statement" made by Mr. Nishikant Dubey. Supreme Court Bar Advocates-On-Record Association had passed a resolution dated April 22, 2025 expressing "deep dismay and unequivocal condemnation" of the "factually baseless and deeply irresponsible" defamatory statement which amounted to "a direct and unwarranted attack on the independence, dignity and majesty of our country's highest Constitutional Court" which sought to "lower judiciary's authority in the eyes of the public."
A statement of concern dated April 22, 2025 was issued saying "Be you never so high, the law is above you".
It reads: "Taking note of the enduring faith of the people in the constitution and the judiciary in their quest for justice;
Recalling that the judiciary doesn't govern and the executive doesn't adjudicate;
Underlining
that the constitutional intent of the Articles 141, 142, Article
145(3), is to empower the Supreme Court to "declare law", "do complete
justice" and settle substantial constitutional questions;
Recognising
the propensity of the Executive to engineer unquestioned obedience of
the judiciary towards the Executive and alarmed by increasing
institutional confrontation;
Realising that if the executive can
dodge accountability—by calling judges names, ignoring orders or
complaining about interference—their legitimacy is undermined;
Speaking
through its judgments, Supreme Court's message is: where Executive
fails, we must step in. Not because we want to rule, but because it has
to uphold the Constitution because even when elections give the
Executive a strong mandate, it doesn't mean the Constitution takes a
holiday;
Recalling that when the judiciary is made to retreat, history shows us what fills the vacuum is rarely democratic.
Underlining that people expect a system that works—and stays within its constitutional limits;
Taking
note of the recent remarks by the Hon'ble Vice President and one of
the members of Parliament, Nishikant Dube and some others to make the
Hon'ble Chief Justice of India and Hon'ble Supreme Court responsible for
the tension gripping the society and the country as an attempt to
defame the entire judiciary which is highly condemnable requiring a
strong voice of legal fraternity and lovers of justice to maintain the
majesty of law;
Concerned with a public perception of lawlessness because of unreasoned and outrageous observations by demagogues, we
appeal to brother advocates and fellow citizens to defend their courts
of justice, the last resort for many against the government, the biggest
litigant and the commercial czars, the unscrupulous political donors in
order to safeguard against the possibility of emergence of unlimited
government."
Significantly, Article 13 of the Constitution of India deals with laws inconsistent with or in derogation of the fundamental rights. It reads:
Article 13 (1) states that all the laws which are made before the Constitution will be void as long as they are violating the provisions of the Fundamental Rights. It further states that only that part of the law which will be void which is against the provisions of the constitution and not the whole law itself. This guarantee is against the existing laws and future laws and not to the laws which are made before the commencement of the constitution.
Article 13(2) states that all the laws which are made after the commencement of the Constitution are void to the extent of the infringement of the Fundamental Rights given in part 3 of the Constitution.
The ‘Doctrine of Eclipse’ asserts that all the Pre-Constitutional laws which are against the fundamental rights of the Indian Constitution will become dormant and not dead. They will remain dormant as long as the state does not amend the law and its infringing nature. So this doctrine applies to only Article 13(1) of the Indian Constitution.
In Keshavan Madhvan Menon v. State of Bombay, the court said that the law which is infringing the rights of the citizens after the commencement of the constitution is ‘void ab initio’ for the citizens of the country but it will remain enforceable for the non-citizens and companies. The doctrine of Eclipse makes the law unenforceable but it doesn’t make the law void ab initio.
The ‘doctrine of Waiver’ means that a person who is receiving a right or a privilege can waive that right according to his will. Once the right is waived by the individual then they cannot claim it back. In Behram v. State of Bombay, it was decided by the court that the rights which are given in part 3 of the constitution cannot be waived by an individual.
The ‘Doctrine of Separability’ means that if a part of a law is against the provisions of the constitution then only that offending part will be declared as void and not the whole statute. This doctrine is applied in both Article 13 (1) and Article 13 (2) of the Indian Constitution. In R.M.D.C. v. Union of India, AIR 1957, Supreme Court has given some rules relating to this doctrine:
“1. It is important to understand the intention of the legislature before using this doctrine.
2. When separation of invalid part of the statute is very difficult then the whole law will be held as invalid.
3. If after deleting the invalid part, the valid part has no value left to it then the whole act will be rejected in its entirety.”
Article 13(3) (a) defines “Law”. According to this section, Law includes any ordinance, order, bye-Law, rule, regulation, notification, custom or usages. This definition of law is given a wide meaning so that it can be added to a wide variety of state instrumentalities.
In Ahmedabad Women Action Group v. Union of India, AIR 1977, Supreme Court said that personal laws (Hindu Law, Muslim Law, and Christian Law) are not part of the definition of Law under Article 13. The Bye-Laws made by the Cooperative Societies are also not part of the definition of Law.
There have also been other discussions on whether “Law” includes constitutional amendments. This question was first decided in the case of Shankari Prasad v. Union of India AIR 1951. In that case, the Supreme Court held that the word law under Article 13(2) doesn’t include a constitutional amendment. This entailed that the Parliament has power to amend the Fundamental Rights according to their will.
Later in the case of Golak Nath v. State of Punjab, AIR 1967, the Supreme Court overruled the Shankari Prasad verdict and stated that the word ‘Law’ in Article 13(2) includes the constitutional amendments. If any constitutional amendment is infringing the Fundamental rights then that amendment will be void.
To nullify the Golak Nath decision the Parliament passed the 24th Amendment Act, 1971, wherein parliament added Clause 4 in Article 13 which stated that nothing in Article 13 shall apply to any amendment of this Constitution made under Article 368.
Later in the case of the Kesavananda Bharati v. the State of Kerala, AIR 1973, the constitutionality of the 24th Amendment was held valid. So the present position of the word “Law” is that a Constitutional Amendment does not include the word. This gives the Parliament the power to amend the provisions of the Fundamental rights as long as they align with the basic structure doctrine of the Indian Constitution.
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