Prashant Bhushan Judgment: "His conduct reflects adamance and ego", Supreme Court observes, but shows "magnanimity" with Rs 1 fine
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Prashant Bhushan Judgment: "His conduct reflects adamance and ego", Supreme Court observes, but shows "magnanimity" with Rs 1 fine

"... we cannot retaliate merely because the contemnor has made a statement that he is neither invoking the magnanimity or the mercy of this Court", the Court said.

Meera Emmanuel

The contempt case against Advocate Prashant Bhushan over two of his tweets criticising the judiciary came to an end of sorts today, after the Supreme Court opted to show "magnanimity" by letting Bhushan off with a fine of Rs 1.

In its 82-page judgment, the Bench has emphasised that it is "not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice", but rather that it is choosing not to retaliate.

If Bhushan fails to pay this nominal fine by September 15, however, the Court has ordered for a three-month imprisonment term and three years' debarment from legal practice.

"We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance and ego, which has no place to exist in the system of administration of justice and in noble profession, and no remorse is shown for the harm done to the institution to which he belongs."
Supreme Court

The Bench, however, added that it is choosing to be magnanimous in the matter, stating,

" At the same time, we cannot retaliate merely because the contemnor has made a statement that he is neither invoking the magnanimity or the mercy of this Court and he is ready to submit to the penalty that can be lawfully be inflicted upon him for what the Court has determined to be an offence."

The ruling was pronounced this morning by a Bench of Justices Arun Mishra, BR Gavai and Aniruddha Bose. As was the case with the Court's August 14 verdict which held Bhushan guilty of contempt, the sentencing ruling also does not specify any one author.

A summary of the reasons given by the Apex Court to reiterate why Bhushan is found guilty of criminal contempt and why he is being served a Re 1 fine as penalty is provided below.

Defence neither bonafide nor in public interest

The contempt case had seen Prashant Bhushan assert that he stands by his tweets as they were genuine opinions reflecting the truth. Notably, truth is a valid defence under contempt law.

The Court, however, has reiterated that Bhushan's tweets fails the twin test of being in public interest or bonafide in order for the defence of truth to be invoked.

"... the defence taken cannot be said to be either in the public interest or bona fide one. On the contrary, it is more derogatory to the reputation of this Court and would amount to further scandalizing and bringing administration of justice in disrepute, in which the common citizen of this country has faith and approaches this Court as a last resort for getting justice."

The Bench also expressed its disapproval over the statements made by Bhushan in his reply affidavits, adding that it agrees with submissions made by Attorney General KK Venugopal that this defence by Bhushan should be taken off the record.

"If the averments are considered for taking truth as a defence, it would amount nothing else but the aggravation of the contempt... we are of the considered view that the defence taken is neither in the public interest nor bona fide one, but the contemnor has indulged in making reckless allegations against the institution of administration of justice. "
Supreme Court

As such, the Court also held that it found no reason to recall its August 14 judgment holding Bhushan guilty of contempt, adding that it has exercised its suo motu contempt jurisdiction in the matter "with full circumspection, care, and precautions."

Judges the silent sufferers

Echoing oral observations made on this count during the Court hearings as well, the Bench also expressed anguish that judges are not in a position to respond to allegations made against them in the interest of judicial discipline and decorum. The judgment states,

"The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to press. It is very easy to make any allegation against the Judges in the newspaper and media. Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media. Nor can they write anything about the correctness of the various wild allegations made, except when they are dealing with the matter."

The Court added that when scathing attacks are made on judges, it becomes difficult for them to work fearlessly. The judgment can be criticized, the Court reiterated. However, "motives to the Judges need not be attributed, as it brings the administration of justice into disrepute."

Comments on Judges Press Conference

Referring to the press conference held by four seniormost judges in January 2018, on which Bhushan had relied on in while defending his tweets, the Court expressed hope that such an episode would not repeat in the future. In this regard, the judgment reads,

Supreme Court Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph held a press conference in January 2018
Supreme Court Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph held a press conference in January 2018

"We hope it was the first and the last occasion that the Judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when allegations made, if any, publicly cannot be met by sufferer Judges. It would cause suffering to them till eternity. Truth can be the defence to the Judges also, but they are bound by their judicial norms, ethics, and code of conduct."

Supreme Court

Court cannot be influenced by media opinions, ready for fair criticism

The Court went on to express its disapproval over statements by Bhushan being released to the media, which it said has the effect of interfering with the judicial process and fair decision making.

"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 tantamount to using a forum or platform which is not supposed to be used ethically and legally. More so, in a serious case of criminal contempt and particularly after the conviction has been recorded by this Court, it indicates that the tolerance of the Court is being tested for no good reasons by resorting to unscrupulous methods", the Court said.

The Court also referred to submissions made by Senior Advocate Rajeev Dhavan for Bhushan urging the Bench not to imprison Bhushan over the tweets and make him a martyr.

However, the Court went on to assert that the Court cannot be influenced by such opinions, stating,

"The Court cannot abdicate its duty and has to be uninfluenced by the statements published in various articles published in the media and opinions expressed therein. It has to decide the case uninfluenced by such opinions... While exercising our judicial functions, we cannot take into consideration whether we will be praised or criticized for the judgment which we render. We are required to decide the cases on the basis of the law as it correctly stands, in our perception and understanding. We are not expected to decide the matter on the basis as to whether there will be criticism of the judgment or not. We have to be always ready for its fair criticism."

Re 1 fine imposed by way of magnanimity

Given the Court's finding that Bhushan's tweets were contemptuous, his defence of truth not valid and Bhushan's clear stance that he would not apologise, the Bench ultimately ruled that a wrong message would be sent out if cognizance is not taken in the matter.

However, despite Bhushan's statement declining to appeal for magnanimity form the Court, the Bench has stated that it is choosing to let Bhushan off with the Re 1 fine.

"If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Re.1/­ (Rupee one)."
Supreme Court

Failing the payment of this fine by September 15, Bhushan would be liable to undergo simple imprisonment for three months and further be debarred from practising in the Supreme Court for three years.

"The Court, from the very beginning, was desirous of giving quietus to this matter. Directly or indirectly, the contemnor was persuaded to end this matter by tendering an apology and save the grace of the institution as well as the individual, who is an officer of the Court. However, for the reasons best known to him he has neither shown regret in spite of our persuasion or the advice of the learned Attorney General. Thus, we have to consider imposing an appropriate sentence upon him", the Court said.

Read the Judgment:

In Re Prashant Bhushan and anr - August 31.pdf
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