Contempt Case Against Prashant Bhushan LAW INSIDER IN

Prashant Bhushan and His Contempt

By Apurva Gaur

In 2020, two tweets by Bhushan about the Supreme Court’s functioning and the Chief Justice of India. In late June, Bhushan had joined a chorus of Twitter users in chiding the Chief Justice of India for posing astride a superbike. Around this time, he had also tweeted a lament about the ‘destruction of democracy’ in India during the reign of the present government.

In his view, the Supreme Court and the last four Chief Justices were culpable for this state of affairs. Provoked, the Supreme Court took up the case ‘Suo motu’ on July 22 and, in barely three weeks, handed down its guilty verdict. 

The 2009 case against Bhushan was filed by senior advocate Harish Salve in connection with an interview published in Tehelka magazine, in which he made allegations of corruption in the judiciary. Apart from Bhushan, then Tehelka editor Tarun Tejpal was also charged with contempt of court.

REACTION OF THE BENCH-

A three-judge bench headed by Justice Arun Mishra stated that while the court is receptive to criticism, its critics must be wary against ascribing motive to its judges. “Why should allegations (against judges) be made? You can criticise, but do not attribute motives. Judges are condemned, their families humiliated, and they cannot speak, “It is about the system.

If we (the bar and the bench) are going to destroy each other, who will have faith in this institution? You have to be tolerant, see what the judges are doing and why. Don’t just attack. Judges can’t go to the press to defend themselves or explain,” Justice Mishra observed.

Holding advocate Prashant Bhushan guilty of contempt of court, the Supreme Court on Friday said punishing a lawyer was an extreme measure, but nevertheless necessary to keep the streams of justice pure and undefiled. “Judiciary is the central pillar of Indian democracy.

It is the duty of the court to punish to preserve its dignity,” the order emphasised. It was painful to read his reply in justification of his tweets. It was absolutely improper. This is not what is expected from a senior member like Prashant Bhushan. And it is not just him; this has become very common now. I belong to an old class. I have reprimanded lawyers for going to the press in pending cases.

There is a difference between an officer of the court and a politician. If you are going to the press for everything, you are over identifying without your causes. If someone with a standing of 30 years, like Prashant Bhushan, says something, people tend to believe him.

They will think whatever he is saying is correct. Had it been someone else, it was easier to ignore but when Bhushan says something, it has some effect. You have to differentiate somewhere.

Tell us, what is wrong in using the word apology? Will that be reflection of guilt? Apology is a magical word, which can heal many things. If you have hurt anybody, you must apply balm. One should not feel belittled by that. “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? You should apply balm if you have caused hurt. “Justice Mishra was responding to arguments by Prashant Bhushan’s lawyer Rajeev Dhavan and Attorney General KK Venugopal.

REACTION OF THE BAR-

The Bar Association of India (BAI) came out in support of activist-lawyer Prasant Bhushan, convicted for contempt of court, saying that at a time the citizenry is facing huge challenges, the stature of the Supreme Court would stand enhanced by allowing criticism rather than taking umbrage at his remarks.

The Executive Committee of the BAI said it was deeply dismayed and concerned by the manner of exercise of Suo motu action of the Court. Attorney General K.K. Venugopal and Bhushan’s lawyer, senior advocate Rajeev Dhavan, unanimously said the top court should refrain from punishing Bhushan, citing his bona fides to argue that he be let off.

Advocate Rajeev Dhavan, appearing for Bhushan, referred to the first tweet and claimed that Bhushan was not trying to suggest the top court did not work, but was “commenting on the prioritisation of cases”. “If Bhushan’s statement is read as a whole, it says he has the highest respect for the judiciary but has a critical opinion about four chief justices,” the advocate said.

Dhavan added that the Supreme Court “will collapse if it does not face severe criticism”. “Court is not immune from criticism,” he said. “It is the responsibility of all of us to make responsible criticism. “The advocate said the top court’s August 20 order that stated the it will only accept an “unconditional apology” from Bhushan “is an exercise of coercion”. “Your lordships cannot question his statement,” he added. “He says he is an officer of the court and that he expressed his sincere belief.

Venugopal said Bhushan should be asked to refrain from criticising the court, to which Dhavan countered that this would amount to silencing a critic. Instead, he suggested that the court issue a statement urging Bhushan to be more restrained in future If the court decides to bar Bhushan from practice, it will have to hear him, Dhavan said. Venugopal urged the court to show statesmanship, take a compassionate view on the issue, and let Bhushan off even if he did not apologise. “What will be the purpose of inflicting punishment? Let him withdraw his affidavit,” the AG said. “Don’t consider his response,” he said, adding: “He can still express regret.”

Several senior members of the Supreme Court Bar Association, have come out in support of Prashant Bhushan, urging the top court to “take corrective steps to prevent miscarriage of Justice”. The lawyers on Monday said that the verdict against the activist-lawyer “must not be given effect to” until a larger bench reviews the standard of criminal contempt in an open court hearing post pandemic.

We are of the firm view that the judgment must not be given effect to, until a larger bench, sitting in open court after the pandemic has the opportunity to review the standards of criminal contempt.

We do believe that the Supreme Court will hear the Voice of the People expressed all around in last 72 hours on the subject and take corrective steps to prevent miscarriage of Justice and restore the confidence and respect that Citizens have generally reposed in it,” the statement said.

The lawyers, in the statement, said a Bar “silenced under the threat of contempt” will “undermine the independence and ultimately the strength” of the Supreme Court. “This judgment does not restore the authority of the court in the eyes of the public.

Rather, it will discourage lawyers from being outspoken. From the days of the supersession of judges and the events thereafter, it has been the Bar that has been the first to stand in defence of the independence of the judiciary,” the statement said, adding that a “silenced” Bar “cannot lead to a strong court”.

Advocate Apar Gupta tweeted, “Criticism of the Supreme Court even when unfair is not contempt. It is for the love of an institution that upholds an ideal of social justice and fundamental rights.” Supreme Court Advocate on Record Anas Tanvir said, “The power of contempt is to be sparsely used.

This has been a stated rule since forever. The absolute power that contempt is needs to be wielded with much care. It may seem that the Supreme Court became a little too sensitive about Prashant Bhushan’s comments. 

Echoing similar views, advocate Krishna Sharma said, “The Supreme Court is a public institution and the judges are open to criticism. So, these things should not become the subject matter of contempt.

Historian Ramchandra Guha tweeted, “Through this act, the Supreme Court has let itself down, and has let the Republic down too. A dark day for Indian democracy.”  Why is the court repeatedly asking for an apology? The Contempt of Courts Act 1971 lays down the procedure to be followed in contempt cases.

It also says that the offence is punishable with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs 2,000, or both. However, Section 12 of the Act also adds an exception to the punishment prescribed. “Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court,” the law says.

Hence, a statement of apology to the court by Bhushan would allow the court to let him off without punishment even though the Supreme Court has found him guilty of contempt of court.  

REACTION OF MR. BHUSHAN-

Activist-lawyer Prashant Bhushan refused to apologise to the Supreme Court. On August 20, the SC had granted Bhushan time till August 24 to apologise for his two tweets against the judiciary.

Bhushan said, in a statement submitted to the apex court, that his tweets represented his bona fide beliefs which he still continues to hold. “An apology has to be sincerely made.

If I retract a statement that I otherwise believe to be true or offer an insincere apology that in my eyes would amount to contempt of my conscience and of an institution (Supreme Court) that I hold in the highest esteem,” the statement said. “An apology for expression of beliefs, conditional or unconditional, would be insincere.

My tweets represented this bona fide belief that I continue to hold. Public expression of these beliefs was I believe, in line with my higher obligations as a citizen and a loyal officer of this court.” Bhushan added.

Therefore, I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples’ rights.