Prashant Bhushan contempt case: The judgment behind the Re. 1 penalty

A closer look at the rationale behind the now famous judgment and the possibility of placing greater onus for lawyers' conduct on the Bar Council


The Supreme Court, on August 31, imposed a fine of Re. 1 on Prashant Bhushan for criminal contempt of court and if he failed to pay the amount, he would have to undergo 3 months imprisonment and will be debarred from practicing in the Supreme Court for 3 years. While this was the operative part of the judgment and widely reported, the reading of the entire judgment gives the whole picture behind how the bench came to decide upon the penalty. It clearly shows how the bench, comprising Justices Arun Mishra, BR Gavai and Krishna Murari, reasoned the seemingly nominal penalty it imposed. It also raises the question; is the SC also trying to put the ball in the Bar Councils’ court?

Reference to Bhushan’s affidavit in response

Throughout the proceedings, the sentencing judgement is the first time, the bench quoted from Bhushan’s affidavit in response while holding that “it is more derogatory to the reputation of this Court and would amount to further scandalizing and bringing administration of justice in disrepute”.

The court referred to Bhushan averments about the court surrendering to the majoritarian executive, formation of benches by Chief Justice, withdrawal of the case which was filed questioning the decision of rejection of impeachment motion moved against the then Chief Justice, blaming the court for Ayodhya verdict and so on. The Court said that the averments are neither in the public interest nor bona fide one and are just reckless allegations against the institution of administration of justice.

In defence of judges

Coming to the defence of judges, the court observed, “The Judges have to express their opinion by their judgments, and they cannot enter into public debate or go to the press. It   is   very   easy   to   make   any   allegation   against   the   Judges   in   the newspaper and media.   Judges have to be the silent sufferer of such allegations, and they cannot counter such allegations publicly by going on public platforms, newspapers or media… Thus, it is necessary that when they cannot speak out, they cannot be made to suffer the loss of their reputation and prestige, which is essential part of the right to live with   dignity.”

About duty of the Bar

About the duty of the members of the Bar, the court stated, “The   Bar   is   supposed   to   be   the   spokesperson   for   the protection of the judicial system… The Bar and Bench are part of the same system i.e. the judicial system, and enjoy equal reputation.  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.”

Speaking about scandalising the court, the court held, “Hostile criticism of the judges or judiciary is definitely   an   act   of   scandalizing   the   Court.     Defamatory   publication concerning the Judge or institution brings impediment to justice”.

Purging for contempt

The court held that merely undergoing the penalty imposed on a contemnor is not sufficient to complete the process of purging himself for contempt. It held that in order to purge criminal contempt something more than an apology is needed; the Court has to be satisfied as to the genuineness of the apology to make an order that contemnor has purged himself of the contempt.

But before the contempt is purged, the advocate could suffer the consequences of Rule 11 of the Rules which postulates that in case the advocate has been found guilty of contempt of court, his authority to act or plead in any court stands snapped.

The court referred to Pravin C. Shah   v.   K.A.  Mohd   Ali and Anr which upheld Rule 11 of the Rules framed by the High Court of Kerala under Section 34(1) of the Advocates Act, 1961 which states that, “No advocate who has been found guilty of contempt of Court shall be permitted to appear, act or plead in any Court unless he has purged himself of the contempt”.

The court also referred to the press conference held by former senior most judges of the Supreme Court on January 12, 2018. Bhushan had justified his averments basis this press conference. The court opined, “We hope it was the first and the last occasion that the Judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when   allegations   made,   if   any,   publicly   cannot   be   met   by   sufferer Judges.  It would cause suffering to them till eternity.”

About the tweets

The court, while making a final reference to the two tweets, the court stated, “It is not expected of a person who is a part of the system of administration of justice and who owes a duty to the said system, to make such tweets which are capable of shaking the confidence of general public and further making wild allegations in the affidavit thereby further attempting to malign the said institution.”

The court further held that “Fair criticism is not to be silenced, but an advocate has to remind himself/herself, where he/she crosses the zone of propriety, and the Court cannot continuously ignore it, and the system cannot be made to suffer.  When the criticism turns into malicious and scandalous allegations thereby tending to undermine the confidence of the public and the institution as a whole, such a criticism cannot be ignored.”

About going to press in a subjudice matter

The court held that, “In a sub judice matter, releasing such statement to the press in advance is an act of impropriety and has the effect of interfering with the judicial process”. The court held that the fact that Bhushan went to press after being convicted for contempt means the tolerance of the court was being tested by resorting to unscrupulous methods.

Decision on sentencing

Firstly, the court refused to recall its judgement convicting Bhushan of contempt, as suggested by Senior Advocate Rajiv Dhavan, the counsel for Bhushan. “While sentencing, we have to act with objectivity in relation to the person and the actual effect,” the court observed.

The court held that while the public has the right to criticize, they are “required to abstain from imputing improper motives to those taking part in the administration of justice.”

The court was also perturbed that Bhushan mentioned in his supplementary statement dated August 24 that the court asked him to take 2-3 days to reconsider his statements while the court’s order states  that time was given to the “contemnor to submit unconditional apology, if he so desires”.

The court held, “Virtual exchange during the course of the proceedings is not what is the order of the Court but it could be a tentative expression of that exchange during the course of hearing.  However, ultimately what is final is the order of the Court.”

“It would have been better if the aforesaid part was not mentioned in the supplementary statement, but we cannot stop anybody from making any statement, but we consider it not to be a proper statement as to what should have been the words in the order of the Court.   We have not coerced the contemnor to submit the apology and have clearly mentioned that time was given to submit unconditional apology, “if he so desires”.

Thereafter, referring to Attorney General’s submission that Bhushan may retract his statement and submit an apology, the court stated, “When senior­most functionary in the legal profession of the stature of the learned Attorney General was giving an advice to express regret and withdraw the wild allegations a lawyer of such a long standing was expected to give due respect to it.”

The court further, categorically stated about debarring Bhushan from practicing law, “Pursuant to the conviction in a criminal case, the Bar Council of India can suspend the enrolment, if it so desires.  It is also open to this Court to debar from practicing in a Court”.

Declaring the sentence

In its finality, the judgment states that the court is not “afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice”. The court further stated that Bhushan’s conduct reflects adamance and ego, which has no place to exist in the system of   administration   of   justice.

While considering the penalty to be imposed, the court observed, “we   cannot   retaliate   merely   because   the contemnor   has   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 that can be lawfully be inflicted upon him for what the Court has determined to be an offence.”

The court said that despite giving him several chances to apologize and save the grace of the institution as well as himself as the officer of the court, he has shown no regret and hence the court is imposing an appropriate sentence upon him.

The court stated that it is showing magnanimity and imposing a nominal fine of Re. 1 to be deposited by September 15 by Bhushan failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.

The complete judgment may be read here.


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