The Supreme Court on August 31, let off advocate Prashant Bhushan with a slap on the wrist and a token fine of Re. 1, in a case where he was held guilty of contempt. The court observed from the beginning it "was desirous of giving quietus to this matter" and "directly or indirectly", Bhushan was "persuaded to end this matter by tendering an apology and save the grace of the institution as well as the individual…".
"However, for the reasons best known to him (Bhushan) 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 judgment said.
Bhushan has been directed to deposit the fine amount with the Supreme Court Registry before September 15 failing which he faces a stricter punishment "a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years."
Reacting to the verdict, Bhushan in a press conference held hours later said that while he was reserving "the right to seek a review of the conviction and sentencing, by way of an appropriate legal remedy", he proposed "to submit" himself to this order and would "respectfully pay the fine, just as I would have submitted to any other lawful punishment."
The top court's judgment comes two weeks after Bhushan was held guilty of contempt for scandalizing the judiciary on August 14.
In its verdict, the court said that while fair criticism is welcome, "judges cannot be hyper-sensitive even when distortions and criticism overstep the limit." But this cannot be "stretched to permit" someone from making malicious and scandalous statements. "The Court has to act only in the case where the attack is beyond a permissible limit, the strong arm of the law strikes a blow on him who challenges the supremacy of the rule of law by fouling its source and stream," the court said.
In the 82-paged verdict, the bench led by Justice Arun Mishra, observed that Bhushan's reply in response to the notice of contempt were not made in "good faith" and capable of "shaking the confidence of the public in the institution as a whole". The bench—which also comprised Justices BR Gavai and Krishna Murari—said, "…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 the administration of justice in disrepute..".
The top court ruled that it was not afraid of sentencing Bhushan "either with imprisonment or from debarring him from the practice" at the same time, it could not "retaliate" merely because Bhushan "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…"
It further observed that Bhushan's 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."
Freedom of Speech is not absolute
The court observed that fundamental right to freedom of speech is "never absolute" because "the makers of the Constitution have imposed certain restrictions upon it." Suggesting that restrictions hold true when this freedom of Speech "is sought to be abused" and "has the effect of scandalising the institution as a whole". Persons who are part of the judiciary "cannot defend themselves publicly" and thus the same "cannot be permitted in law".
"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," the judgment said. "Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly…" it added.
"…If a scathing attack is made on the judges, it would become difficult for them to work fearlessly and with the objectivity of approach to the issues. The judgment can be criticized. However, motives to the Judges need not be attributed, as it brings the administration of justice into disrepute," the verdict further read.
Using Media an attempt to coerce judicial decisions
Referring to Bhushan's affidavits which were widely reported by the media, the court said that "releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process and the fair decision making". It is clearly "an attempt to coerce the decision of the Court by the influence of newspaper and media", which is not "conducive for the fair administration of justice".
"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," the unanimous verdict read.
Make fair criticism, but refrain from attributing improper motives
The SC said there is no doubt that "one is free to form an opinion and make fair criticism but if such an opinion is scandalous and malicious, the public expression of the same would also be at the risk of the contempt jurisdiction."
Thinking processes cannot be controlled, but when it comes to expressing them it must be "within the constitutional limits". Lawyers are supposed to be "fearlessly independent and robust" but "at the same time respectful to the institution."
"Right to fair criticism is contrasted against acting in malice or attempting to bring down the reputation of the institution of administration of justice."
Apology a contempt to my conscience: Bhushan to SC
During arguments on sentencing, Bhushan had refused to apologise indicating that he stood by what he said. Any apology "would be insincere" and retraction of his statement would be a "contempt" to his "conscience", Bhushan said. In the two affidavits he filed, Bhushan paraphrased Mahatma Gandhi's submission from his 1922 sedition trial, saying he was not asking for "mercy" and would "cheerfully submit to any penalty that can lawfully be inflicted".
Attorney General KK Venugopal, who was asked to "guide" the court on this issue, had also recommended that Bhushan should be pardoned and he "need not be punished". Referring to instances in the past where former and sitting judges had hinted at alleged corruption in the judiciary, the AG had said, "…these statements are telling the court to reform the court… They seek the improvement of the administration of justice."
What the contempt case was
On July 2, advocate Mehak Maheshwari sought initiation of contempt proceedings after highlighting two tweets that allegedly scandalized the court. Bhushan, in a tweet on June 27, Bhushan observed that democracy in India has been destroyed even without a formal emergency and that the Supreme Court played a key role in the destruction. Two days later, Bhushan had commented on a picture where Chief Justice of India (CJI) SA Bobde was seen atop a Harley Davidson without a mask. Twitter India withheld both the tweets after the top court suggested they take it down without a formal order during a hearing on July 22.