Courting logic on contempt in Prashant Bhushan’s case

The Supreme Court holds the renowned lawyer-activist guilty of contempt, reserves verdict on quantum of sentence, reports Amit Agnihotri

Lawyer-activist Prashant Bhushan’s refusal to submit an apology in a contempt of court case has brought the issue of freedom of speech in focus with the Supreme Court choosing to reserve its verdict on the quantum of sentence.

Miffed over two of his tweets, the top court had on Aug 20 convicted Bhushan for criminal contempt of court and asked him to submit an unconditional apology by Aug 24 or face punishment.

Bhushan refused to apologise, upsetting the court.

As Bhushan’s counsel Rajeev Dhavan urged the top court not to punish the lawyer and take a compassionate view he also recalled how Justice Mishra, as a judge in the Calcutta High Court, let go of Mamata Banerjee after she said all judges were corrupt.

Attorney General KK Venugopal suggested the court should let Bhushan off with a warning as he had expressed regret in another contempt case registered in 2009.

The court however opted to reserve its order on the sentence to be given to Bhushan but reminded the lawyer that it was okay to apologise if a person had hurt someone.

“If you are hurting someone, then what is wrong in apologizing,” Justice Arun Mishra, who is hearing the case, said.

“For how long the system will suffer all this. I am retiring in a few days. Will it be okay if you or others start attacking me? Why to say you can say anything against retired judges,” Justice Mishra, who is due to retire on Sep 2, said.

The court was miffed over the reply that Bhushan had filed before it and gave the lawyer 30 minutes to think over an apology. “It was painful to read his reply in justification of his tweets. It was absolutely improper. This is not the way a senior lawyer like Prashant Bhushan with over 30 years of experience should behave. And it is not just him, this has become very common now,” said the court.

Realising the gravity of the situation, the Attorney General urged the court to let Bhushan go with a warning.

“Let him go with a warning to tell him ‘please don’t repeat this in future’,” Venugopal said as he urged the court to show statesmanship and not use its power of contempt.

In his reply Bhushan had said: “The hopes of the people of India vest in this Court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive.”

The lawyer further said that his tweets represented a bonafide belief that he holds and an apology, conditional or unconditional, would be insincere. “Retracting now would be a “contempt of my conscience” and the court,” said Bhushan.

Another contempt case against Bhushan registered in 2009 had also been revived by the court. Arguing in the 2009 case when Bhushan had allegedly called half of 16 former CJI’s corrupt, Bhushan’s counsel Rajeev Dhavan raised the issue of conflict between right to free speech and suo motu contempt powers of the top court.

The court then deferred the hearing in this case to September 10 saying several issues raised by needed a detailed examination. As Justice Arun Mishra is set to retire on Sep 2, the matter will now be heard by a fresh Bench to be decided by Chief Justice of India SA Bobde.

The contempt cases against lawyer-activist Prashant Bhushan have aroused huge interest in the country with public opinion divided over the issue.

In the first case, the top court was miffed over two tweets posted by Bhushan in June this year. In the tweet on June 27, 2020, the lawyer said “four previous Chief Justices of India played a role in destroying democracy in India in the last six years.”

The second tweet on June 29 had accused Chief Justice SA Bobde of riding a Harley Davidson motorcycle in Nagpur last month without a helmet and face mask during the lockdown.

After holding Bhushan guilty of criminal contempt of court over his tweets, the apex court asked the lawyer to reconsider his statement and submit an unconditional apology by Aug 24. Bhushan refused to apologise and gave a long list of arguments to support his views.

“If I retract a statement before this court that I otherwise believe to be true offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution I hold in highest esteem,” he told the court on Aug 24.

“I have made the statements bonafide and pleaded truths with full details, which have not been dealt with by the court,” he said.

The lawyer–activist noted he had great expectations from the top court as an institution. “I believe that the Supreme Court is the last bastion of hope for the protection of fundamental rights, the watchdog institutions and indeed for constitutional democracy itself. It has rightly been called the most powerful court in the democratic world, and often an exemplar for courts across the globe,” Bhushan said.

Earlier, Bhushan had told the court he was pained at being grossly misunderstood, that he considered his tweets an attempt to discharge his highest duty and that he was ready to cheerfully submit to any punishment from the court.

The lawyer’s tough stand against the top court order trended on social media as many started to compare him with Mahatma Gandhi and South African leader Nelson Mandela. Bhushan told the court that he would paraphrase what Mahatma Gandhi had said at his trial “I do not ask for mercy. I do not appeal to magnanimity.”

However, Bhushan was quick to clarify that his comparison with Gandhi or Mandela was inappropriate as the two leaders had struggled for long periods before becoming great. He thanked the people for their support.

After taking suo motu note of the tweets, the top court on July 22 issued a notice to Bhushan saying his statements prima facie “brought the administration of justice in disrepute”.

Bhushan then moved the top court seeking a recall of its July 22 order and said the expression of opinion, “however outspoken, disagreeable or unpalatable to some”, cannot constitute contempt of court.

Bhushan referred to freedom of speech and expression under Article 19 (1)(a) of the Constitution and said this right was the ultimate guardian of all the values that the document held sacred.

On August 2, Bhushan said: “I admit I did not notice that the bike was on a stand and therefore wearing a helmet was not required. I therefore regret that part of my tweet. However, I stand by the remaining part of what I have stated in my tweet.”

On Aug 3, Bhushan submitted another affidavit saying he regretted only a “part of” what he tweeted and asserted that criticism of the top judge did not scandalise the court or lower its authority.

On Aug 5, Bhushan defended his two tweets saying they were against the judges regarding their conduct in their personal capacity and they did not obstruct administration of justice.

A day later, Bhushan moved a plea seeking to present additional evidence if the court was not satisfied with his submissions that the contempt was not made out against him for his two tweets against the judiciary.

Bhushan’s advocate Dushayant Dave argued that “The two tweets were not against the institution. They are against the judges in their personal capacity regarding their conduct. They were not malicious and did not obstruct administration of justice.”

Dave pointed out that Bhushan had made immense contribution to the development of jurisprudence and there were “at least 50 judgments to his credit” and that the court had appreciated the lawyer’s contributions in cases like the 2G spectrum scam, coal block allocation scam and in mining matters.

“Perhaps you would have given him ‘Padma Vibhushan’ for the work he did in the last 30 years,” Dave said.

Earlier, the top court observed Bhushan’s tweets were prima facie capable of “undermining the dignity and authority” of the institution of the Supreme Court in general and the office of Chief Justice of India in particular, in the eyes of the public at large.

The court had discharged social media platform Twitter from contempt for publishing Bhushan’s tweets saying it accepted the explanation given by the micro-blogging site.

“We accept the explanation given by it, that it is only an intermediary and that it does not have any control on what the users post on the platform. It has also shown bona fides immediately after cognisance was taken by this court as it has suspended both the tweets. We, therefore, discharge the notice,” the top court said.

“Bhushan’s tweets are based on distorted facts, amount to committing criminal contempt. The tweets are not fair criticism of the functioning of the judiciary made in public interest. The scurrilous allegations, which are malicious in nature and have the tendency to scandalise the court, are not expected from a person, who is a lawyer of 30 years standing,” the Supreme Court said.

“The publication by tweet reaches millions of people and as such, such a huge extent of publication would also be one of the factors that require to be taken into consideration while considering the question of good faith,” the top court said.

“Indian judiciary is not only one of pillars on which Indian democracy stands but is the central pillar. An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand. The tweet has the effect of destabilising the very foundation of this important pillar of Indian democracy. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them,” the Supreme
Court said.

Bhushan argued he exercised his freedom of speech and gave an opinion about the functioning of the court and it did not amount to “obstruction of justice”, necessitating the contempt proceedings.

“To bona fide critique the actions of a Chief Justice or a succession of Chief Justices cannot and does not scandalise the court, nor does it lower the authority of the court,” Bhushan’s affidavit said.

After hearing the arguments, on Aug 14 a three-judge bench of Justice Arun Mishra, Justice BR Gavai and Justice Krishna Murari pronounced Bhushan guilty of criminal contempt of court.

While Bhushan later expressed regret, the Bench held the second tweet was not against the CJI in his individual capacity but as the head of the judiciary.

The Bench took exception to the “lockdown” remark and pointed out that from March 23 to August 4, its various Benches had 879 sittings and heard 12,748 matters. The bench noted that Bhushan not only appeared as a lawyer during this period but also challenged an FIR against him. The court refused to accept his tweet as written out of anguish.

On the first tweet, the Bench said: “There is no matter of doubt that the tweet tends to shake public confidence in the institution of judiciary… the said 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.”

The top court rejected Bhushan’s argument that his tweet was only a matter of opinion.

On Aug 20, after hearing the case for two hours whether Bhushan’s tweets had crossed the line or not, the Supreme Court asked the lawyer-activist to reconsider his statement and submit an unconditional apology by August 24.

“There is no person on Earth who cannot commit a mistake. You may do hundreds good things but that doesn’t give you a license to do 10 crimes. Whatever has been done is done. But we want the person concerned to have a sense of remorse,” Justice Arun Mishra, who headed a Bench to decide the sentence in the case, said.

Justice Mishra also noted this was his first ruling in a contempt case.

“There is a Lakshman Rekha (boundary) for everything. Why cross it? We welcome pursuing good cases in public interest but remember, this is a serious thing. I haven’t convicted anyone of contempt in 24 years as a judge. This is my first such order,” he said.

“Freedom of speech is not absolute to anyone… to me… to Press. There’s no problem in being an activist but we have to say this is the line.”

The court had earlier rejected Bhushan’s request to defer the hearing on his sentencing for contempt of court. “You are asking us to commit an act of impropriety that arguments on sentencing should be heard by another bench,” the court said.

Bhushan said he was being misunderstood but was prepared for any punishment. “I am pained to hear that I am held guilty of contempt of court. I am pained not because of the would-be sentencing, but because I am being grossly misunderstood. I believe that an open criticism is necessary to safeguard democracy and its values,” the lawyer-activist said.

“My tweets need to be seen as an attempt for working for the betterment of the institution. My tweets, I consider, were discharge of my highest duty. Apologising would also be dereliction of my duty. I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that the court may impose,” he said.

On reconsidering his statement, the lawyer-activist said: “I may reconsider it if my lordships want but there won’t be any substantial change. I don’t want to waste my lordships’ time. I will consult my lawyer.”

Supporters get together

The legal fraternity was divided over the case with Bar Councils of Maharashtra and Goa supporting the court verdict. But 1,500 lawyers from across the country opposed it. “This judgment does not restore the authority of the court in the eyes of the public. Rather, it will discourage lawyers from being outspoken,” the lawyers said in a statement.

Seven former Supreme Court judges including Justices Ruma Pal, GS Singhvi, AK Ganguly, Gopala Gowda, Aftab Alam, Jasti Chelameswar and Vikramjit Sen urged the top court to withdraw proceedings against Bhushan.

The statement was also signed by former Delhi High Court chief Justice AP Shah, ex-Patna High Court judge Anjana Prakash, historian Ramachandra Guha, author Arundhati Roy, activist Harsh Mander and lawyer Indira Jaising.

Former Attorney General Soli Sorabjee too urged the top court to drop the sentencing of Bhushan saying: “Allow him to prove his case with evidence about judicial corruption, instead of silencing him.”

Congress leader Kapil Sibal, a senior lawyer and former law minister, also backed Bhushan saying larger issues were at stake. “Contempt power being used as a sledgehammer. Why are Courts helpless when institutions that need to protect the constitution and the laws show open contempt for both? Larger issues are at stake… History will judge the Court for having let us down,” Sibal tweeted on Aug 22.

In an earlier tweet Sibal said: “As we celebrate Independence Day, courts must never forget that their commitment to the cause of liberty and our constitutional values will be judged not by their words and homilies but by their actions in dealing with causes”.

Another senior lawyer and Congress spokesperson Abhishek Manu Singhvi said the law had to be applied in an even-handed, fair and balanced manner and that the top court had broad shoulders.

“The law has to be applied in an even handed, fair, balanced manner. The concerns raised by those after the judgments are certainly not in any manners false, frivolous or vexatious. They cannot be dismissed off hand. They deserve a lot of careful thinking because they include former judges of that very Court. They include precedents and they include the basic spirit of the Supreme Court chest being larger than any other chest in India. Shoulders be wider than any other shoulder in India,” said Singhvi.

Singhvi clarified he was not articulating the party’s view but speaking from his experience as a lawyer.

“I think these are all issues which I would not like to officially associate by party, because the party would require a resolution or something like that, so it should not be said that I committed the party, but, the sentiment is very clear and I have articulated it from the podium especially as a person, who spent a lifetime in law,” he said.

Interestingly, in 2012 Bhushan had targeted then prime minister Manmohan Singh and Priyanka Gandhi Vadra’s businessman husband Robert Vadra over alleged corruption. “The Congress is using the PM as a shield like ‘Shikhandi’. They say he is clean, so his Cabinet must be clean. Why is the PM allowing himself to be used like ‘Shikhandi’ in this manner.” At a press conference, Bhushan along with Arvind Kejriwal, then an activist but now the Delhi chief minister, had accused Vadra of getting favours from realty major DLF. But things have changed in 2020.

“In 2011-12, he was against my party. I was angry with his stand but he had every right to do so. Today when Prashant Bhushan upholds the flag of democracy, I stand with him,” Congress spokesperson Pawan Khera tweeted on Aug 20.

Twenty politicians including Shashi Tharoor (Cong), Farooq Abdullah(NC), Sitaram Yechury(CPI-M), Yashwant Sinha (ex-BJP), Manoj Jha (RJD) and Saifuddin Soz (Cong) also backed Bhushan saying they had unqualified commitment to uphold the dignity of constitutional bodies but were of the opinion that the top court’s  verdict would have a ‘chilling effect’ on free speech and expression of dissent.

A statement from these leaders said it was sad that the court did not distinguish between “constructive criticism and malicious statement”. “We fail to find a legitimate basis for such a sweeping approach as it would deter ordinary individuals from performing their citizenship duty of being objective in their expressions about the institutions of our democratic republic,” the statement said.

The leaders further said the cause of free speech needed protection and promotion as India needed “plurality of perspectives and vigilance about all institutions”.

“We appeal to the Supreme Court to avoid the impression that we are entering an era of silence about our institutions by punishing someone who has acted as the conscience keeper of the country,” the statement from the leaders said.

The Communist Party of India-Marxist said the court order holding Bhushan guilty of contempt was unfortunate and uncalled for and would reinforce an atmosphere of intolerance.

“By finding two tweets by Prashant Bhushan tantamount to bringing disrepute to the institution, the Court has displayed intolerance to criticism and an illiberal attitude which does not behove the highest court of the land. The verdict will only reinforce the prevailing atmosphere of intolerance and repression where the executive is using draconian laws such as the sedition clause to suppress dissent and journalistic freedom. It would be better for the Court to reconsider the verdict and refrain from pronouncing any punishment in the case,” the Polit Bureau of the CPI-M said in a statement.

Other political groups like Swaraj India headed by Yogendra Yadav ran online campaigns to mobilise support for Bhushan.

Opponents join hands

A group of 772 citizens, including retired judges, lawyers and bureaucrats slammed those criticising the Supreme Court order that held Bhushan guilty of contempt of court. They wrote a letter to the CJI saying India had witnessed a series of attacks by institutional disruptors against judges who were unwilling to agree with them and toe the line drawn by them.

“It is unfortunate that when political ends of lawyers are not served by a decision of the court, they vilify the court by making scandalizing remarks. The Supreme Court of India as well as the judges are subject to both scurrilous language, malicious attacks and scandalizing remarks,” the group said in the letter.

It further said that legitimate criticism of both judgements and the functioning of the institution had always existed but when the criticism was calculated and actuated by malice, the authority of the court was undermined.

“If the judiciary is to perform its duties and functions effectively, it is essential to protect the dignity and authority of the courts. The foundation of the judiciary is the confidence of the people in its ability to deliver justice. The actions of these institutional disruptors through name calling and usage of certain phrases such as ‘Supreme Court has destroyed democracy’; ‘the Supreme Court is killing the Constitution’ have the tendency to destroy the faith of the public in the judiciary,” the statement said.

“We sincerely hope that the Supreme Court of India ensures that such persons are dealt with in an exemplary manner, even if such actions are taken thirteen years later or else such trends will only accelerate and strike a blow to the guardian of the rule of law,” the group said.