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