Prashant Bhushan Contempt Case: Simple Warning Won’t Suffice, Says Supreme Court

Bhushan had earlier informed the top court that he’ll be seeking review of its Aug. 14 judgment that found him guilty of contempt.
Protests outside the Supreme Court expressing solidarity with Prashant Bhushan, on Aug. 20, 2020. (Photo: PTI)
Protests outside the Supreme Court expressing solidarity with Prashant Bhushan, on Aug. 20, 2020. (Photo: PTI)

The Supreme Court ordered Advocate Prashant Bhushan to pay a fine of Re 1 after finding him guilty of criminal contempt for his tweets earlier this month.

If Bhushan fails to deposit the fine by Sept. 15, it will result in three-month imprisonment and a three-year temporary debarment from practice, said the top court bench comprising Justice Arun Mishra, Justice BR Gavai and Justice Krishna Murari.

The court noted that it cannot ignore the fact that Bhushan did not express any regret or submitted an apology despite the suggestion of the Attorney General for India, as well as multiple opportunities by the court itself.

It’s for the historians to decide whether the view taken by the court was magnanimity itself or induced magnanimity, Senior Advocate Sanjay Hegde said.

This case is a reminder to lawyers and others that no matter how senior or popular they may be, they have to be responsible in making comments, Senior Advocate Rakesh Dwivedi said.

The apex court emphasised in its order that Bhushan has been a lawyer for 35 years, and while expectations from an ordinary citizen may be different, the duties and expectations that are expected from a lawyer of long standing are on higher side.

When senior­-most functionary in the legal profession of the stature of the learned Attorney General was giving an advice to express regret and withdraw the wild allegations, a lawyer of such a long standing was expected to give due respect to it. Even our request made to him has gone in vain. Thus, we feel that the simple issuance of warning is not going to suffice in the instant case.
Supreme Court judgment

Therefore, the court held, it cannot ignore Bhushan’s conduct as it would give a wrong message to lawyers and litigants across the country.

“However, by showing magnanimity, instead of imposing any severe punishment, we’re sentencing the contemnor with a nominal fine of Re 1,” said the top court. After the verdict, Bhushan said he will pay the fine.

While I reserve the right to seek a review of the conviction and sentencing, by way of an appropriate legal remedy, I propose to submit myself to this order and will respectfully pay the fine, just as I would have submitted to any other lawful punishment
Bhushan’s statement released after the verdict.

Hegde said that with this judgment, the institution has lost.

“I’m not going to say that Bhushan won or the judges lost. I think it’s the institution which lost today,” the senior advocate said. “The gravitas that’s associated with the institution is best maintained with letting the judgment speak for itself and not for judges to take thin-skinned offence at outspoken criticism from the bar.”

The bench could have shown magnanimity in the first instance itself when they decided to summon Bhushan, he said.

Senior Advocate Indira Jaising agreed. The entire process around this case sets the right to freedom of speech and expression back by almost by a century. The two judgments on conviction and sentencing in this case are a setback for the right to freedom of speech and expression, she said.

We are all put to notice that if we are critical of the court and make an evaluation of its role in protecting democracy, we are guilty of contempt. I have no doubt that the two judgments will have a chilling effect on us all. I don’t know how and when these judgments will be reversed but they must be if the right to free speech is to have any meaning.
Senior Advocate Indira Jaising

Releasing Statement An Act Of Impropriety, Says Court

The court also expressed unhappiness that Bhushan had released, in advance, statements to the media which he made during the hearings in the court and noted that his own lawyer agreed that the statements should not have been released to the press before they came up in the hearing.

Such conduct in an act of impropriety, has an effect of interfering with the judicial process and is clearly and attempt to coerce the court’s decision by the influence of media, the apex court noted.

If such kind of action is resorted to in a sub judice matter, that too by an advocate who is facing a criminal contempt, it virtually tantamounts to using a forum or platform which is not supposed to be used ethically and legally.
Supreme Court Judgment

Dwivedi said lawyers must know where fair criticism ends. “Criticism can be sharp but it should not be slanderous and if you want to slander then the consequences will follow,” he said. “I was the first one to come out and criticise the manner in which the hearing on the personal issue surrounding Justice Gogoi took place.”

“We have been speaking and we don’t feel that there will be any chilling effect. But yes we should know where to stop and what to say and how to say,” Dwivedi said.

The Supreme Court on Aug. 25 had reserved its judgment on punishment in the contempt case against Bhushan after he declined to apologise for his tweets—tagging an image of Chief Justice Bobde sitting astride a Harley-Davidson bike, and the Supreme Court’s role in destruction of democracy.

The bench had found Bhushan guilty of contempt on Aug. 14, after initiating suo motu contempt proceedings over his two tweets. The top court then granted Bhushan time till Aug. 24 to apologise for his tweets and reconsider the statement made during the hearing. Bhushan had declined to do either.

Attorney General KK Venugopal had requested the bench to not punish Bhushan and take a compassionate view. Bhushan on his part submitted a fresh statement but it did not include an apology. Bhushan maintained that his comments were meant in good faith and didn’t intend to malign the court.

The bench during this hearing observed that it was not against fair criticism but was pained by his statements and tweets. Justice Mishra had noted that judges do not have the option to go the press to defend allegations made against them.

To be sure, this is not the only contempt case that Bhushan is facing before the top court. The Supreme Court is also hearing a 2009 contempt case that was initiated against Bhushan over his comments made to the Tehelka magazine. The court is now likely to take up that case for hearing on Sept. 10.

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