On Monday, 31 August, public interest lawyer Prashant Bhushan announced at a press conference that he would accept the sentence imposed by him by the Supreme Court for contempt earlier in the day – of a Re 1 fine.
However, while he said he would “submit” himself to the order and “respectfully pay the fine as I would have submitted to any other lawful punishment”, he also said he reserved his right to seek a review of the conviction and sentencing.
Bhushan also thanked those who had stood by him, saying:
"“I am extremely grateful and humbled by the solidarity and support expressed by countless persons: former judges, lawyers, activists and fellow citizens, who encouraged me to remain firm and true to my beliefs and conscience. They strengthen my hope that this trial may draw the country’s attention to the cause of freedom of speech and judicial accountability and reforms. What is very heartening is that this case has become a watershed moment for freedom of speech and seems to have encouraged many people to stand up and speak out against the injustices in our society... I am more confident now than ever before that truth shall prevail. Long live democracy, Satyamev Jayate.”"
THE SUPREME COURT ORDER ON SENTENCING
The court had ordered Bhushan to pay a Re 1 fine as punishment for contempt of court by 15 September. If he fails to do so, the court held that he would have to undergo simple imprisonment of 3 months and would also be barred from practicing before the apex court for 3 years.
A Supreme Court bench of Justices Arun Mishra, BR Gavai and Krishna Murari had held the lawyer-activist guilty of criminal contempt on 14 August over two recent tweets, but had not decided the punishment for the same.
The bench heard arguments on sentencing from Bhushan’s lawyers on 20 and 25 August, during which time he refused to apologise, and Attorney General KK Venugopal urged the court to show “statemanship” and not punish him. The judges had then reserved their decision.
Reading out the decicion on sentencing by the court, Justice Mishra said that the court could not take into account criticism from retired judges or lawyers or the public when deciding the penalty for contempt.
He also said that when deciding the sentence, the court had taken into account Bhushan’s conduct, including the release of his supplementary statement to the media before the final hearing in the case, which was meant “to influence the court and interfere in independent judicial function.”
The judges also took into account Bhushan’s refusal to apologise, despite them giving him multiple opportunities to do so.
The judges had previously assured Bhushan that any sentence imposed by them would not be activated until any review filed by him against the contempt verdict is decided. Bhushan has 30 days from the date of the original verdict to file a review petition against the court’s decision to hold him guilty of contempt. By requiring him to pay the fine by 15 September, the court appears to have gone back on this.
He continues to maintain that his tweets – one about Chief Justice of India SA Bobde and a superbike in the context of the court denying access to justice during lockdown, and the other about the apex court’s role in the destruction of democracy in the last six years – were made in good faith, and that any apology would therefore be insincere.
In a light-hearted moment after the verdict, Bhushan tweeted a photograph with his lawyer and wrote, “My lawyer & senior colleague Rajiv Dhavan contributed 1 Re immediately after the contempt judgement today which I gratefully accepted.”
My lawyer & senior colleague Rajiv Dhavan contributed 1 Re immediately after the contempt judgement today which I gratefully accepted pic.twitter.com/vVXmzPe4ss— Prashant Bhushan (@pbhushan1) August 31, 2020
WHAT HAPPENED IN THE SENTENCING HEARINGS?
The two hearings on sentencing had seen dramatic developments.
On 20 August, Bhushan made his first statement to the court refusing to apologise, in which he said his tweets were an attempt to discharge his duty as a citizen and officer of the court, and paraphrased Mahatma Gandhi to say that he would not ask for mercy, and would instead “cheerfully submit” to any punishment.
During the hearing, the judges stated that they had not referred to the entirety of Bhushan’s reply affidavit, only the parts that his lawyer Dushyant Dave had referenced. Bhushan’s other lawyer, senior advocate Rajeev Dhavan, had been arguing at the time that Bhushan should be allowed a defence of truth, and that his affidavit had explained in detail why his statements were bona fide.
Attorney General KK Venugopal came out in support of Bhushan, and urged the court not to punish Bhushan. He also stated that he had statements by retired judges of the Supreme Court making similar comments to Bhushan’s about threats to democracy.
The judges gave Bhushan till 24 August to make an unconditional apology. However, he instead reiterated his decision not to apologise. Affirming his respect for the Supreme Court as an institution, he said that he had only been fulfilling his duty as a citizen and a lawyer by pointing out what he felt was a deviation from its sterling record. As a result, he said:
"“If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.”"
During the second hearing on 25 August, the Attorney General reiterated his position, and asked the court to show “statesmanship”.
Justice Arun Mishra and the other judges, however, pointed to Bhushan’s affidavit, which they said could be considered an “aggravation”, given the allegations it contained against the court. Venugopal suggested that Bhushan could withdraw those allegations in the affidavit, and issue a statement of regret similar to the one he had given in the 2009 contempt case against him, also currently ongoing.
Justice Mishra further questioned Bhushan’s refusal to apologise. He had previously indicated that the court could not be lenient on sentencing unless Bhushan made an apology.
Dhavan, arguing for Bhushan, contended once again that an insincere apology would not be worth anything, and that instead the court should read Bhushan’s supplementary statement as a whole, to see how he stood by his beliefs but also expressed his respect for the court.
WHAT IS THE CASE ABOUT?
The contempt case in question was initiated suo motu by the Supreme Court against Bhushan on 21 July. It relates to the following tweets by Bhushan on his Twitter handle:
- On 27 June, he wrote: “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”
- On 29 June, he shared an image of CJI Bobde sitting on a Harley Davidson superbike, commenting that the CJI was sitting on a bike belonging to a BJP leader without a mask or helmet, at a time when the Supreme Court was “denying citizens their fundamental right to access Justice” because it was in lockdown mode.
Bhushan filed a detailed affidavit in the apex court defending his tweets. In it, he explained the context behind his tweets, and why the comments made by him were his bona fide opinion. On that basis, he argued, he was entitled and in fact obligated to put forward his criticism, as it is the duty of every citizen to criticise public institutions and functionaries if they genuinely believe there is something wrong with them.
"“It is the essence of a democracy that all institutions, including the judiciary, function for the citizens and the people of this country, and they have every right to freely and fairly discuss the state of affairs of an institution and build public opinion in order to reform the institution.”" - Prashant Bhushan’s affidavit to the Supreme Court
While Article 19(2) of the Constitution recognises contempt as a ground for restriction of freedom of speech, he noted that this has to be a ‘reasonable restriction’. Preventing citizens from forming and expressing a bonafide opinion about a constitutional institution and discussing this in the public domain to build public opinion for reform, is not a reasonable restriction, he argued.
He also cited case law from the Supreme Court itself which said the power of contempt was to be used sparingly, not to stifle criticism. He then showed how the aspect of contempt of court in this case against him – scandalising the court or lowering its authority – had been abolished in many countries including the United Kingdom, whose contempt law formed the basis of the same in India.
The affidavit concluded with a detailed list of controversies at the apex court during the tenures of the last four CJIs – JS Khehar, Dipak Misra, Ranjan Gogoi and SA Bobde.
WHY DID THE COURT HOLD BHUSHAN GUILTY?
"“The scurrilous allegations, which are malicious in nature and have the tendency to scandalize the Court are not expected from a person, who is a lawyer of 30 years standing. In our considered view, it cannot be said that the above tweets can be said to be a fair criticism of the functioning of the judiciary, made bona fide in the public interest.”" - The Supreme Court’s judgment on 14 August
As regards Bhushan’s tweet about CJI Bobde and the photograph of him on the bike, the court has held that this is “undoubtedly false, malicious and scandalous”, as the court was on vacation at the time, and in any case, despite the coronavirus lockdown, the court had been holding video conferencing hearings for cases, including cases in which Bhushan was a lawyer, as well as a litigant.
The tweet therefore “has the tendency to shake the confidence of the public at large in the institution of judiciary and the institution of the CJI and undermining the dignity and authority of the administration of justice,” according to the judgment.
As regards the other tweet, the court has held that it “has the effect of destabilising the very foundation of this important pillar of Indian democracy.” By claiming that the court has played a role in the destruction of democracy, the judges held that this tweet “undermines the dignity and authority of the institution of the Supreme Court of India and the CJI and directly affronts the majesty of law.”
Warning of the consequences of people losing confidence in the Supreme Court – the epitome of the Indian judiciary – and of judges getting an impression that they will not be protected from malicious attacks, the court held that such attempts to attack the highest judiciary of the country “should be dealt with firmly.”
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