Cost Of Contempt

Almost as soon as the Supreme Court pronounced its ­punishment for lawyer Prashant Bhushan in a contempt of court case on August 31, countless memes and sardonic one-liners targeting the judiciary flooded social media. Sympathy and solidarity that the activist-­lawyer found from the legal fraternity and countless public intellectuals across the country over the past two months since the apex court initiated, suo motu, contempt proceedings against him turned into a collective celebratory roar as the three-judge bench sentenced Bhushan.

“If we do not take cognisance of such conduct, it will give a wrong message to lawyers and litigants throughout the country. However, by showing ­magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor (Bhushan) with a ­nominal fine of Re 1,” the bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari ruled. The quantum of punishment was in response to the guilty verdict the court had served Bhushan in July for two tweets about Chief Justice of India S.A. Bobde and three of his predecessors.

The court’s indictment of Bhushan had been strident. The bench held that Bhushan’s tweets and his two ­statements to the court refusing to apologise for his action constituted an attempt to “denigrate the reputation of the institution of administration of ­justice of which he himself is a part”. “Lawyers’ noble profession will lose all its significance and charm and dignity if lawyers are permitted to make any ­malicious, scandalous and scurrilous ­allegations against the institution…. Lawyers are supposed to be fearlessly independent and robust, but at the same time respectful to the institution,” the bench said.

Although the bench decided to show “magnanimity” despite the stinging ­condemnation, it also stated that Bhushan would be imprisoned for three months and barred from practising law in the apex court for three years if he failed to deposit the fine by September 15. “We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance (sic) and ego, which has no place to exist in the system of administration of justice,” the bench added. Bhushan had told the bench earlier: “I do not ask for mercy. I do not appeal to magnanimity…. I cheerfully submit to any penalty that can lawfully be ­inflicted upon me for what the court has determined to be an offence, and what appears to me to be the highest duty of a citizen.”

That the lawyer had been held guilty of contempt by the court and was now being ‘sentenced’ is an unusual reason for Bhushan’s comrades and backers to cheer over, but cheer they did. The ­entire proceedings against the lawyer in the contempt case—given his reputation for championing causes like transparency, human rights and judicial accountability through a career spanning 37 years—had been a departure from the otherwise prosaic judicial business. From the court’s timing in ­instituting the case against Bhushan, and in a manner that several legal ­experts have dubbed questionable, to how it decided to revive another ­contempt case pending against Bhushan since 2009 (now to be put up before a different bench), and the ­arguments proffered by Bhushan’s counsel—every aspect of the case ­triggered a larger debate.

Then came Bhushan’s steadfast ­refusal to apologise for his comments—made twice in two separate statements—and the court almost ­beseeching him repeatedly to apologise and “give quietus to this matter”. Bhushan’s defiance that continued even beyond the pronouncement of a guilty verdict, however, placed the court in a tricky situation of its own making. The bench seemed to dither about applying the punishment ­mandated under the law of contempt—up to six months imprisonment or fine of up to Rs 2,000, or both—but, as it had already judged Bhushan guilty, it couldn’t let the ­lawyer go free either. Bhushan’s counsel, Rajeev Dhavan, too made a clever legal manoeuvre by ­telling the court that his client would ­attain the status of a martyr if he were imprisoned by the court, making it ­obvious that such an eventuality will only attract more criticism for the court. This has indeed happened ­increasingly over the past few years as several activists such as Varavara Rao and Sudha Bharadwaj continue to be incarcerated under ­allegedly trumped-up charges. Even Attorney General K.K. Venugopal, whose assistance the court had sought in the case, had urged the bench to let Bhushan go, perhaps with a reprimand, but ­certainly not a jail sentence.

The case also reignited the debate ­between the judiciary’s solemn duty of protecting a citizen’s constitutional right to freedom of expression and the application of the contempt law, a court’s capacity to take criticism, and the equivalence between individual judges and the institution they ­represent. At a time when intolerance of dissent has become an emotive issue, it would perhaps have been ­obvious to both Bhushan and the court that jailing a reputed lawyer with a massive body of public action ­litigation behind him would play out poorly in public discourse.

Expectedly, while awarding Bhushan the Re 1 penalty, the court sought to ­address these concerns. “Public has a right to criticise in good faith.… However, the members of the public are required to abstain from imputing improper motives to those taking part in the administration of justice. Right to fair criticism is contrasted against acting in malice or attempting to bring down the reputation of the institution of administration of justice,” the bench held. If the caveat failed to put the mind of observers to rest, it is, perhaps, for the court to revisit the case.

The normally voluble Bhushan has, for now, chosen to speak cautiously on the punishment meted out to him. “I reserve the right to seek a review of the conviction and sentencing, by way of an appropriate legal remedy,” Bhushan said, adding that he would ­“respectfully pay the fine, just as I would have ­submitted to any other lawful ­punishment”. Speaking to the media shortly after the court pronoun­ced the ­quantum of punishment, Bhushan also ­reiterated his “greatest respect” for the Supreme Court, which he described as the “last bastion of hope, particularly for the weak and the oppressed who knock at its door for the protection of their rights, often against a powerful executive”.

Bhushan has maintained that his tweets were “not intended in any way to disrespect the judiciary as a whole”, but were an expression of his anguish. “When the Supreme Court of India wins, every Indian wins. Every Indian wants a strong and independent judiciary. Obviously, if the courts get weakened, it weakens the republic and harms every citizen,” he said. The reconciliatory message from Bhushan following weeks of unwavering defiance, however, is clearly not the end of his battle. By all accounts, he will challenge his conviction soon. And then, there’s the 11-year-old contempt case against him too, which was slapped on him for naming, in an interview to Tehelka magazine, several past chief justices of India as corrupt.