Prashant Bhushan | SabrangIndia

Supreme Court closes contempt case against Prashant Bhushan and Tarun Tejpal

Wed, 31 Aug 2022 12:37:42 +0000

Image Courtesy: indianexpress.com

On August 30, the Supreme Court closed the 2009 contempt case initiated against Advocate Prashant Bhushan and former Tehelkar editor Tarun Tejpal, over Bhushan’s interview given to Tehelka magazine in which he said that several previous Chief Justices of India were corrupt, reported LiveLaw.

A bench comprising Justice Indira Banerjee, Surya Kant and MM Sundresh closed the proceedings initiated for making remarks against past CJIs, in view of the explanation given by Prashant Bhushan and that an apology has been tendered by Tarun Tejpal, as informed by Senior Advocate Kamini Jaiswal appearing for Bhushan and Senior Advocate Kapil Sibal appearing for Tarun Tejpal.

The bench reportedly stated, “In view of the apology tendered by the contemnors, we do not deem it necessary to proceed with the contempt. The contempt proceedings are dropped.”

This case pertains to Bhushan’s interview to Tehelka magazine in 2009 wherein he had allegedly made statements about corruption against SC judges. Bhushan had allegedly implied that at least half of the 16 previous Chief Justices were corrupt, but he could not provide any evidence to support his claims. The SC took up the case suo moto after senior advocate Harish Salve filed a complaint.

In January 2010, a bench comprising Justices Altamas Kabir, Cyriac Joseph and HL Dattu issued notices to Bhushan as well as Tehelka’s then Editor-in-Chief Tarun Tejpal. The contempt petition was held maintainable by a three-judge bench in November 2010 and after that it was heard 17 times.

On August 4, 2020, the court asked Bhushan’s lawyer if he was willing to tender an apology. But Bhushan declined and offered an explanation instead, insisting that his words were misunderstood. In a press release, Bhushan clarified, “In my interview to Tehelka in 2009 I have used the word corruption in a wide sense meaning lack of propriety. I did not mean only financial corruption or deriving any pecuniary advantage. If what I have said caused hurt to any of them or to their families in any way, I regret the same. I unreservedly state that I support the institution of the judiciary and especially the Supreme Court of which I am a part, and had no intention to lower the prestige of the judiciary in which I have complete faith. I regret if my interview was misunderstood as doing so, that is, lower the reputation of the judiciary, especially the Supreme Court, which could never have been my intention at all.”

In August 2020, the Supreme Court had found Bhushan guilty of contempt over some of his tweets and fined him a token Re. 1. The Court had held that his tweets were based on distorted facts and constituted a scurrilous/malicious attack on the entire Supreme Court and had the effect of destabilising the very foundation of the judiciary, reported the Indian Express.

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.”

The court had referred to the press conference held by former senior most judges of the Supreme Court on January 12, 2018. Bhushan had justified his averments based on 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.”

The post Supreme Court closes contempt case against Prashant Bhushan and Tarun Tejpal appeared first on SabrangIndia.

Justice Mishra’s appointment as NHRC Chief shows govt’s disregard for human rights: CJAR

Fri, 04 Jun 2021 04:26:04 +0000

Image Courtesy:telegraphindia.com

The Campaign for Judicial Accountability and Reforms (CJAR) has issued a statement condemning the appointment of Justice Arun Mishra, former Supreme Court Judge as the Chairperson of National Human Rights Commission (NHRC). It clearly states that Justice Mishra has “long history and proven track record, of being insensitive to human rights and democratic norms and also a known propensity of siding with the government on all important issues affecting the government”.

CJAR states that by appointing him as Head of NHRC, the government has demonstrated its disregard for human rights and its desire to subvert independent regulatory institutions of the country. It also points out that the trigger for the unprecedented joint press conference denouncing the abuse of power of master of roster by the then Chief Justice was the assignment of the case involving the death of Judge Loya to Justice Mishra.

The statement also underscored the order by the bench comprised Justice Mishra to evict lakhs of forest dwellers and several other cases including the Haren Pandya case, challenge of appointment of CVC, dismissing plea seeking probe into medical college scam and so on. The statement points towards many such cases which underline his controversial judicial legacy, and questions why so many other capable retired judges like Justice Madan Lokur, Justice Deepak Gupta, Justice Kurien Joseph, were not considered for the post.

“Apart from his record of siding with the government in every politically sensitive case, as a sitting judge he was unabashed about his open adulation for the Prime Minister when he called him a versatile genius, “who thinks globally and acts locally” at an International Judicial Conference last year, prompting many jurists to remark about the lack of propriety in his making such statements as a sitting judge. Another circumstance showing his proximity to the government was that he was allowed to retain his official residence for over 9 months beyond his retirement, despite the rule requiring him to vacate in a month,” the statement reads.

The CJAR states that this appointment has been designed to make the NHRC into a totally moribund institution and it signals the knell for the protection and promotion of human rights for which NHRC was set up.

Justice Arun Mishra’s judicial legacy at the apex court can be read here.

The post Justice Mishra’s appointment as NHRC Chief shows govt’s disregard for human rights: CJAR appeared first on SabrangIndia.

Attorney General declines consent for contempt case against Prashant Bhushan

Mon, 30 Nov 2020 05:46:51 +0000

Attorney General (AG) of India KK Venugopal has refused to grant consent for contempt proceedings against Advocate Prashant Bhushan over his tweets against the Chief Justice of India, SA Bobde’s visit to Madhya Pradesh.

The AG said that Prashant Bhushan had already expressed his regret for making the impugned remarks against CJI Bobde by stating on Twitter that it was incorrect on his part to say that the fate of the Government of Madhya Pradesh depended on the case pending before the Chief Justice of India.

The consent of the topmost law officer was sought by one advocate Sunil Singh to initiate contempt proceedings against Bhushan for his tweet saying that Mr. Bhushan connected “the personal life of CJI with a pending case before him.”

The AG said he was initially of the mind to grant the consent to initiate proceedings for criminal contempt but after Bhushan’s tweet expressing regret, the AG was of this view and said, “I do not think that it would be in the public interest to give consent for proceedings on the basis of the original tweet in view of the subsequent tweet expressing regret. I accordingly decline consent.”

Background

On October 21, the lawyer activist Bhushan tweeted to say that the CJI used the special helicopter to visit the Kanha National Park even while “an important case of disqualification of defecting MLAs of MP (Madhya Pradesh) is pending before him”. He said that the survival of the Madhya Pradesh government depends on this case.

The CJI avails a special chopper provided by the MP Govt (authorised by the CM) for a visit to Kanha National Park& then to his home town in Nagpur, while an important case of disqualification of defecting MLAs of MP is pending before him. Survival of MP govt depends on this case pic.twitter.com/XWkYVjHkvH

— Prashant Bhushan (@pbhushan1) October 21, 2020

Subsequently, on November 4, he expressed his regret on the tweet and said, “Elections were held yesterday to seats of defecting Cong MLAs in MP who were made ministers in the Shivraj Govt. The survival of the Shivraj govt will depend on their re-election, not on the decision of the case in CJIs court challenging their ministership. I regret this error in my tweet below.”

Elections were held yesterday to seats of defecting Cong MLAs in MP who were made ministers in the Shivraj Govt. Survival of Shivraj govt will depend on their re-election, not on decision of case in CJIs court challenging their ministership. I regret this error in my tweet below https://t.co/SkX86iuJuS

— Prashant Bhushan (@pbhushan1) November 4, 2020

In October 2020, Advocate Sunil Kumar Singh had written a letter to the AG against Bhushan’s tweet which had questioned the CJI for using a special chopper provided by the Madhya Pradesh Government, during the pendency of the case regarding disqualification of defecting MLAs of the state.

In his letter, AG Venugopal said, “I am of the opinion that the imputations contained in three tweets to the effect that the Chief Justice of India committed an act of impropriety in accepting facilities of the state of Madhya Pradesh during his visit to Kanha National Park while a case pertaining to the disqualification of certain members of the legislative assembly of MP was pending before him were wholly unwarranted, improper, devoid of legal basis and prima facie contumacious.”

However, keeping in mind the latest tweet by Bhushan, made the AG decline permission to initiate contempt proceedings against him. Defending CJI Bobde, the AG said the CJI is one of the highest constitutional functionaries in the country and is entitled to receive special arrangements as befits the stature of his office. He is entitled to be extended appropriate security, he added.

The AG also said that the CJI was visiting a Maoist-affected region, and that is why he was given the helicopter facility which was the most prudent and appropriate measure. Further he noted that the case pertaining to which Bhushan had passed those remarks had been withdrawn from the Supreme Court and it would be in public interest to give consent for initiation of contempt.

“The case pertaining to the disqualification of the erstwhile members of parliament in the state of Madhya Pradesh has now been withdrawn by the petitioner as having become infructuous. Sh. Kapil Sibal appearing for the petitioner had made this representation to the Supreme Court which recorded “Learned Senior Counsel appearing on behalf of the petitioner states that the matter has become infructuous. In view of the above, the special leave petition is disposed of as having become infructuous”, the AG stated.

Bhushan’s conviction for contempt has chilling effect on freedom of expression: ICJ

Stand up comic Kunal Kamra faces contempt charges for tweets

Kunal Kamra refuses to apologise for tweets about SC

The post Attorney General declines consent for contempt case against Prashant Bhushan appeared first on SabrangIndia.

Bar Council of Delhi issues show cause notice to Prashant Bhushan

Wed, 23 Sep 2020 07:56:45 +0000

Image Courtesy:theleaflet.in

The Bar Council of Delhi has sent a show cause notice to senior advocate Prashant Bhushan. It has asked Prashant Bhushan to appear before it, and show cause why action should not be taken against him over his tweets, that allegedly resulted in ‘contempt of court. The Supreme Court had held Bhushan guilty of contempt. On August 31, imposed a fine of Re. 1 on Bhushan as punishment for criminal contempt of court.

Soon the ball was in the Bar Council of India’s court, for any further disciplinary action, and on September 3, the BCI opined that the matter requires consideration in light of Sections 24A and 35 of the Advocates’ Act, 1961, reported Bar and Bench. The Bar Council of India (BCI) has opined that the tweets by Advocate Prashant Bhushan which had triggered criminal contempt proceedings as well as the judgment convicting Bhushan for contempt needs a thorough study and examination.

The matter then was by the BCI referred to the Bar Council of Delhi, where Prashant Bhushan is enrolled as an advocate. The BCD has now issued him a notice, asking him to appear on October 23, and explain why he should not face disciplinary action. He also has to send his response within the next 15 days.

The senior advocate reacted on social media, to the Bar Council’s notice, and said it “cites Sec 24A of the Advocates Act which says that an Advocate will not be enrolled if convicted for an offence of moral turpitude. For the Bar Council, Contempt by critical comment is moral turpitude”

Now the Bar Council’s notice on the basis of the SC order on my ‘Contempt’! It cites Sec 24A of the Advocates Act which says that an Advocate will not be enrolled if convicted for an offence of moral turpitude. For the Bar Council, Contempt by critical comment is moral turpitude! pic.twitter.com/mjBcUX4jcx

— Prashant Bhushan (@pbhushan1) September 23, 2020

He also shared the notice itself:

According to B&B, Section 24A deals with disqualification for enrolment whereas Section 35 deals with punishment of advocates for misconduct. Under Section 35, if a disciplinary committee of the State Bar Council finds a lawyer guilty of professional misconduct, he may be reprimanded, suspended or removed from the rolls of the Bar Council.

Soon after the sentencing the International Commission of Jurists (ICJ) had said Prashant Bhushan’ conviction for contempt was “inconsistent with international standards on freedom of expression and the role of lawyers.” The ICJ, an international NGO that defends human rights and the rule of law worldwide, stated that the conviction “has a chilling effect on the exercise of protected freedom of expression in India and thus, has urged a review of the laws and standards on criminal contempt as applied by the Indian courts.”

The post Bar Council of Delhi issues show cause notice to Prashant Bhushan appeared first on SabrangIndia.

Civil society bats for Prashant Bhushan as he deposits Re 1 with SC

Mon, 14 Sep 2020 06:10:59 +0000

On Monday, activist and senior advocate Prashant Bhushan deposited Re 1 fine that was imposed on him by the Supreme Court when it found him guilty of contempt on August 31. The court fined him one rupee that he must deposit with the Registry by September 15, failing which he would be required to serve a three-month sentence and be debarred from practicing law for three years.

“Just because I am depositing the fine doesn’t mean I accept the judgment. I have filed a review petition,” said Adv. Bhushan when he reached the SC to deposit his fee via a draft for the amount of Re 1. Members of Mazdoor Kisan Shakti Sangathan accompanied him and they brought along several Re 1 coins, their contribution to a Truth Fund.

“This money will be used to fight cases of people being targeted for exercising their right to free speech. The regime is trying hard to curb freedom of expression and dissent. Umar Khalid has been arrested. They have named many others like Jayati Ghosh and Professor Apoorvanand,” said Adv. Bhushan.

Meanwhile, Campaign for Judicial Accountability and Reforms (CJAR) and Swaraj Abhiyan organised a webinar where several legal luminaries, journalists and activists expressed solidarity with Adv. Bhushan, and raised concerns about the manner in which dissen.

Justice Madan Lokur raised concerns about the widespread misuse of the sedition law saying, “State is using an iron hand to curb free speech. Sedition is a very serious offence. Lokmanya Tilak and Gandhi were charged under sedition. Today the common man is facing this charge.” Standing by Bhushan he said, “It was not his intention to denigrate the SC. His tweets were misread and contempt proceedings were initiated.”

“Right now, the Supreme Court is under a spotlight,” said senior journalist N Ram. “Instead of curbing free expression, this case has had a stimulating effect, with more robust criticism of the court now taking place in articles and debates.”

Activist Anjali Damania said, “When we should be focusing on the plight of migrant workers and the failing economy, it is unfortunate that people like Prashant Bhushan are being targeted.”

The verdict in Prashnat Bhushan’s contempt of court case was pronounced by a bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari. It is noteworthy that Adv. Bhushan repeatedly refused to either apologise for his tweets or retract them. In a statement released at that time, Bhushan had said, “Today in these troubling times, 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. This casts a duty, especially for an officer of this court like myself, to speak up, when I believe there is a deviation from its sterling record.” He added, “My tweets represented this bonafide 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. Therefore, an apology for expression of these beliefs, conditional or unconditional, would be insincere.” Bhushan went on to say, “An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be sincerely made.” He concluded saying, “If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.”

Bhushan’s conviction for contempt has chilling effect on freedom of expression: ICJ

The post Civil society bats for Prashant Bhushan as he deposits Re 1 with SC appeared first on SabrangIndia.

Bhushan’s conviction for contempt has chilling effect on freedom of expression: ICJ

Wed, 02 Sep 2020 11:26:16 +0000

Image Courtesy:en.wikipedia.org

The International Commission of Jurists (ICJ) considers Prashant Bhushan’ conviction for contempt to be inconsistent with international standards on freedom of expression and the role of lawyers. The ICJ has stated that the conviction has a chilling effect on the exercise of protected freedom of expression in India and thus, has urged a review of the laws and standards on criminal contempt as applied by the Indian courts.

ICJ is an international NGO that defends human rights and the rule of law worldwide with about 60 eminent judges and lawyers on board, from all parts of the world.

On August 31, the Supreme Court of India imposed a penalty of Re. 1 on Prashant Bhushan for committing criminal contempt of court, failure of which would lead to 3 months imprisonment and 3 years of being debarred from practice.

The ICJ considered the court’s opinion on freedom of expression where it held that it was balancing its exercise of power to punish for contempt for itself (Article 129 of the COnstitution) with freedom of speech and expression. The ICJ, however, differed on this view and stated that a particularly wide scope must be preserved for debate and discussion about such matters as the role of the judiciary, access to justice, and democracy, by members of the public, including through public commentary on the courts. It held that any restriction on freedom of speech and expression “must be strictly necessary and proportionate to meet a legitimate purpose, such as protecting public order or the rights and reputations of others”.

ICJ’s Legal and Policy Director Ian Seiderman expressed his opinion, “There is a general concern that the protection of freedom of expression is rapidly eroding in India. We have seen this recently around the Covid-19 crisis in relation to the imprisonment of human rights defenders, on draconian charges of sedition, rioting and unlawful assembly for protesting against the Citizenship (Amendment) Act”. He further said that the Supreme Court may be perceived from hereon as an institution that silences “criticism and freedom of expression by invoking outdated criminal contempt laws”.

ICJ has stated that it stands with the 1,800 Indian lawyers in calling for the review of criminal contempt law. It emphasized that the “law is overbroad and should be aligned with international law and standards on the limited scope for restrictions on freedom of expression and criminal contempt.”

“Prashant Bhushan is a lawyer and lawyers being part of the legal system have a ring-side view and understanding of the state of the court. Convicting a leading lawyer for contempt for expressing his views in this manner may have a chilling effect on lawyers, in particular considering his involvement in many public interest litigation cases,” said Mandira Sharma, ICJ South Asia Senior Legal Advisor.

International standards on freedom of expression

Among the international standards on freedom of expression of lawyers and human rights defenders are International Covenant on Civil and Political Rights (ICCPR), UN Human Rights Committee, UN Basic Principles on the Role of Lawyers, Commentary on Bangalore Principles on Judicial Conduct and Latimer House Guidelines for the Commonwealth.

The ICCPR, under Article 19 speaks about the Right to Freedom of Expression and about restrictions on the exercise of the right, it states that they should only be imposed with respect to rights and reputation of others and for protection of national security or of public order.

The UN Human Rights Committee states that “The obligation to respect freedoms of opinion and expression is binding on every State party as a whole.” It further states that “Contempt of court proceedings relating to forms of expression may be tested against the public order ground,” and if a penalty is imposed it must be “warranted in the exercise of a court’s power to maintain orderly proceedings.” The Committee further states that any “restriction of freedom of expression, even “deeply offensive” expression, “must conform to the strict tests of necessity and proportionality”.

“All public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism”, the Committee opines. The Committee further states that the state should be able to establish the precise nature of the threat caused due to the expression and also establish an “immediate connection between the expression and the threat”.

The UN Basic Principles on the Role of Lawyers affirm lawyers’ right to freedom of expression, and in particular that lawyers “shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights.”

The Commentary on Bangalore Principles on Judicial Conduct, adopted by the Judicial Integrity Group (of whom former Chief Justice of India the Hon. Prafullachandra N. Bhagwati, was a longstanding member), published by the UN Office on Drugs and Crime, urges that contempt powers should be “used as a last resort, only for legally valid reasons and in strict conformity with procedural requirements” and that, “It is a power that should be used with great prudence and caution.”

“Criticism of public office holders is common in a democracy. Within limits fixed by law, judges should not expect immunity from criticism of their decisions, reasons, and conduct of a case,” states the Commentary. The Commentary also states: “Members of the public, the legislature and the executive may comment publicly on what they may view to be the limitations, faults or errors of a judge and his or her judgments… The better and wiser course is to ignore any scandalous attack rather than to exacerbate the publicity by initiating contempt proceedings.”

The Latimer House Guidelines for the Commonwealth also stresses that “criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial functions”.

The complete Press Release may be read here.

The post Bhushan’s conviction for contempt has chilling effect on freedom of expression: ICJ appeared first on SabrangIndia.

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

Tue, 01 Sep 2020 12:57:05 +0000

Image Courtesy:thewire.in

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

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.

The post Prashant Bhushan contempt case: The judgment behind the Re. 1 penalty appeared first on SabrangIndia.

Grateful and humbled by the solidarity and support: Prashant Bhushan

Mon, 31 Aug 2020 12:26:40 +0000

On Monday, August 31, 2020, after the Supreme Court of India fined Prashant Bhushan Re 1 after holding him guilty of contempt of court in connection with two tweets, the senior advocate and human rights defender issued a statement accepting the court’s sentence.

He said, “I propose to submit myself to this order and will respectfully pay the fine, just as I would have submitted to any other lawful punishment.” Bhushan went on to say, “This issue was never about me versus the Hon’ble Judges, much less about me vs the Supreme Court. 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.”

Bhushan also expressed gratitude to citizens who stood by him saying, “I am extremely grateful and humbled by the solidarity and support expressed by countless persons, ex-judges, lawyers, activists and fellow citizens who encouraged me to remain firm and true to my beliefs and conscience. They strengthen my hope that this trial may draw the country’s attention to the cause of freedom of speech and judicial accountability and reform.”

Calling the case a “watershed moment for freedom of speech” Bhushan said that he was glad it “encouraged many people to stand up and speak out against the injustices in our society.” He also thanked his lawyers, Dr Rajeev Dhawan and Dushyant Dave.

The entire statement may e read here:

Prashant Bhushan contempt sentencing: Court should forgive him or warn him, says AG

Insincere apology, a contempt of my conscience: Prashant Bhushan

SC grants Prashant Bhushan time before sentencing

The post Grateful and humbled by the solidarity and support: Prashant Bhushan appeared first on SabrangIndia.

Prashant Bhushan contempt sentencing: Court should forgive him or warn him, says AG

Tue, 25 Aug 2020 12:20:17 +0000

Update: The court order quite briefly states, “Heard learned counsel for the parties. Arguments concluded. Judgment reserved”. The date for pronouncement of judgment has not been specified.

Another dynamic hearing has concluded today in the Prashant Bhushan’s contempt case sentence hearing. What was expected to conclude as the pronouncement of punishment, has ended in the silence of the court. Justice Arun Mishra, who is set to retire from office in a week, has left the sentencing in a limbo. Presumably, the order is reserved in the case as the hearing was concluded with the parting words of Justice Mishra, “This is probably my last dialogue with Mr. Attorney (General)”.

With bated breath, the people, the media waited to see if the court would sentence Bhushan for contempt. After giving several chances to Bhushan to submit an apology to the court, Bhushan finally said that apologising would be a contempt of his conscience. As he refused to budge from his bonafide stance, it was up to the court to consider his arguments on his sentencing.

The hearing began with Justice Mishra asking Attorney General (AG) KK Venugopal for his guidance on “What is to be done?” The AG continued where he was cut off in the last hearing, and stated that former judges of the Supreme Court have said that the court has failed democracy and said he has a list of such judges.

“These statements are telling the court to reform the court. They seek the improvement of administration of justice. This is a case where your lordships should forgive him (Bhushan) or perhaps warn him,” says AG while adding that it is not necessary to punish Bhushan.

The bench then made a reference to the supplementary statement filed by Bhushan and Justice Mishra said, “We expected something better than this”.

The AG’s comments

“This is a case where the Court can take a ‘compassionate view’ and that will be appreciated by the Bar and will befit the status of the Court”

AG brought to the notice of the court that Bhushan has filed several PILs for the benefit of people and that the court should consider his public work. He also suggested that Bhushan’s remarks be taken off court records, and the case be closed. But Justice Mishra said that cannot be done as Bhushan keeps saying that his statements are his bonafide belief.

AG also reminded the court of the Arundhati Roy contempt case, “Your lordships have held in Arundhati Roy’s case that ‘our shoulders are broad enough to shrug off’ comments against it.”

After the dialogue between AG and the bench ended, the bench took a 30-minute break and re-assembled when Dr. Rajeev Dhavan started arguing for Bhushan.

When he was asked for his final comments in the last leg of the proceedings, AG said that there are third parties involved against whom allegations have been made by Bhushan but hearing them out would mean a never ending inquiry, “So, your lordships can say that his defence cannot be taken into account. Therefore, your lordships can leave the matter at rest as it is now, by saying that his defence cannot be looked into”.

Dr. Rajiv Dhavan’s submissions

“When your lordships sentence, your lordships should first look at the offender. This ‘offender’ has contributed a lot to this court as amicus and in public causes, as the Attorney General pointed out… I have written over 1000 articles and about 900 of them are about the Supreme Court. I have said that the Supreme Court has ‘middle class temperament’. Is that contempt?”

He once again reminded Justice Mishra how, while being the judge at Calcutta High Court had acquitted Mamata Banerjee when she had alleged that the judges were corrupt.

He further moved on to the order of the last hearing of August 20 and commented that the order is an “exercise of coercion”:

“An apology cannot be made to escape the clutches of law. An apology has to be sincere…Your lordships cannot question his statement. He says he is an officer of the court and that he expressed his sincere belief”.”

He also said that the convicting judgment is replete with “half-truths and contradictions”.

Dhavan also nudged the bench to construe Bhushan’s statement as an apology:

“A sincere explanation will come within the broad contours of the term ‘apology’. 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.”

He further stressed upon the importance of criticism and said that the court can survive only on responsible criticism. He stated that the contempt verdict should be suo-moto recalled.

Some remarkable submission made by Dr. Dhavan:

“There is no question of withdrawing Bhushan’s statements or excising his affidavit from the record, which is a part of his defence.”

“What is that the Court would tell him? When you tell him ‘don’t do it again’, he will ask ‘what should I not do again?’. Can the court ask him not to criticize the court? Can the court silence him?”

He also suggested to the court how the case should be closed. He said that the court should say,

“We have taken into account his statement. Though we disagree with many things he said, we caution him to be a little restrained in the manner in which he criticizes the court, and be sure on facts.”

Justice Mishra asked him how the court would punish him if they decide to do so. Dhavan said that in previous cases the court has barred contemnors from appearing before the court or there is punishment prescribed in the Contempt of Courts Act. But then he immediately added, “Don’t make Prashant Bhushan a martyr.” He further said,

“The effect of the punishment could be, he will be made a martyr. Please do not do that. He does not want martyrdom. If Bhushan is punished, there will be one set of articles calling him a martyr and another set of articles saying he was rightly punished. We all want this controversy to end. This can end only by judicial statesmanship.”

On the question of sentencing, Dhavan maintained, “Kindly bear this in mind, your lordships can say this kind of criticism should not be made. I will leave it to your lordships to decide what is to be done.”

Adv. CU Singh intervened saying that even if the conviction is maintained, there need not be a sentence “as there is no substantial interference with administration of justice.”

Justice Mishra’s comments

Justice Mishra, throughout the hearing was insistent that Bhushan submits an apology. It was apparent through various comments made by him through the proceedings that he was pushing Bhushan to apologise.

“What is the point of giving warning to Bhushan if he himself has no ‘inkling’ that he has done wrong”.

Towards the conclusion of the hearing, Justice Mishra said, “it is ‘painful’ to read all the statements of the Bhushan and his justifications.”

“This is not the way a senior lawyer like Prashant Bhushan over 30 years of experience should behave. I belong to the old class. I have reprimanded lawyers for going to press in pending cases. There is a difference between an officer of the court and a politician. If you are going to press for everything, you are over identifying without your causes. Going to press, making a tweet by a lawyer of a standing of Mr. Prashant Bhushan carries some weight. It affects the public.”

He further added,

“You are part of the system. Your dignity is as good as a judge. If you destroy each other like this, people will not have trust in the system. We welcome fair criticism. But we cannot go to press to respond to criticism. As a judge, I have never gone to press. That is the ethic we have to observe. So many things we know in and out. But can we go to press for all that? No, we cannot. We have to protect each other and the dignity of the institution.”

Further insisting on an apology, Justice Mishra said,

“Tell us, what is wrong in using the word apology? What is wrong in seeking apology? Will that be reflection of guilt? Apology is a magical word, which can heal many things. I am talking generally and not talking about Prashant. You will go to the category of Mahatma Gandhi if you apologize. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that. It is not (my) part to advise. You (AG) have known him as a child. You have special love and affection for him. I don’t consider myself elder enough to advise anyone.”

With this, the hearing concluded. Although, it wasn’t expressly said, the order is assumed to be reserved. No matter what the final order is, with respect to Bhushan’s sentencing, there is no doubt that this case will be etched in history and will pave a path in the jurisprudence of freedom of expression and constructive criticism of the court.

The Supreme Court order may be read here:

Hum Dekhenge: Nation stands for freedom of speech, expression and conscience

Indian diaspora stands with Prahsant Bhushan

I submit to any penalty which the court may inflict: Prashant Bhushan

The post Prashant Bhushan contempt sentencing: Court should forgive him or warn him, says AG appeared first on SabrangIndia.

Prashant Bhushan 2009 contempt case to be heard by another bench

Tue, 25 Aug 2020 09:07:15 +0000

Image Courtesy:nationalheraldindia.com

The Supreme Court bench headed by Justice Arun Mishra has directed listing of the 2009 contempt case against Senior Advocate Prashant Bhushan before another bench as per the orders of the Chief Justice of India. “I am short of time. I am demitting office,” Justice Mishra concluded.

At the last hearing, the bench comprising Justices Arun Mishra, BR Gavai and Krishna Murari, had framed 3 substantial questions of law for consideration of the bench. While deciding the case and at today’s hearing, the bench was supposed to also decide upon whether the case should be referred to a larger bench. While the case is going to be referred to another bench, it is not clear whether this will be a larger bench.

“These questions must be resolved for ‘once and for all’. The Court’s free speech jurisprudence has expanded and its impact on contempt law must be considered,” submitted Dr. Rajeev Dhavan appearing for Bhushan. Dhavan also requested that the Attorney General be issued notice in the case, but this decision has also been left for the other bench to decide.

Dhavan further stated, “The question whether Articles 129 & 215 of the Constitution enabling Court to take suo moto contempt action are powers independent of other provisions of the constitution, particularly Articles 19 and 21, goes to the very heart of Bhushan’s defence.”

Background

This case arises from a different comment made by Bhushan and pertains to his interview to Tehelka magazine in 2009 wherein he had allegedly made statements about corruption against SC judges. Bhushan had allegedly implied that at least half of the 16 previous Chief Justices were corrupt, but he could not provide any evidence to support his claims. The SC took up the case suo moto after senior advocate Harish Salve filed a complaint.

On August 17, the last hearing, the bench framed the following questions to be addressed by Dhavan:

(i) In case a public statement as to corruption by a particular Judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard ?

(ii) What procedure is to be adopted to make a complaint in such cases when the allegation is about the conduct of a sitting Judge ?

(iii) Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of the general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

LiveLaw reported that Dhavan, on behalf of, Bhushan has submitted a revised list of ten questions of law of considerable constitutional importance, in tune with the August 17 order of the Supreme Court:

1. Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of Court?

2. If the answer to Question 1 is in the affirmative, whether the person who expresses such an opinion about the extent of corruption in a section of judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he bona de held that opinion?

3. Whether the Supreme Court in exercise of its powers under Article 129 can curtail free speech and expression only to the strict and limited extent permissible under the Contempt of Courts Act, 1971?

4. Whether the decisions in Ex Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 and Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 are mutually inconsistent and deserve to be reconciled by a bench of the appropriate strength, and whether in any event both judgments deserve to be referred to a larger bench in order to reconcile them with the issues raised in Question 3 above?

5. a) Whether the Contempt of Courts Act, 1971 ought to bear on the manner in which the vast discretion in relation to contempt proceedings under Articles 129 and 215 of the Constitution is exercised?

(b) Whether, in answer to the foregoing question, the conflicting pronouncements of this Hon’ble Court in Pallav Sheth v. Custodian (2001) 7 SCC 549 and In re Prashant Bhushan, SMC (Crim.) No. 1 of 2020 (decided 14th August 2020) deserve re-examination?

6. Whether, in light of the law laid down by this Hon’ble Court in Dadu v. State of Maharashtra (2000) 8 SCC 437 (paras 17&18) and, the absence of any provision for appeal against conviction in a suo-motu proceeding for criminal contempt initiated by this Hon’ble Court violates Article 21 of the Constitution of India?

7. Whether, after the interconnected reading of Articles 14, 19 & 21 in RC Cooper v. Union of India (1970) 1 SCC 248 (11 Judges) and in Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Judges), the law of contempt should be subject to the concepts enumerated in these decisions, both in relation of the Contempt of Courts Act, 1971 as well as Articles 129 & 215 of the Constitution of India?

8. Whether cases relating to Section 2(c)(i) of the Contempt of Courts Act 1971 decided before its enactment need to be re-examined in the light of the Contempt of Courts Act, 1971 and judgments interpreting it?

9. Whether the in-house procedure for dealing with complaints against judges laid down in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 prevents complainants, participants in the procedure and others from discussing the matter in the public domain?

10. Whether the decision in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 is compatible with constitutional limitations including those contained in Articles 19(2) and 14?

The bench that will be assigned the case for next hearing on September 10, will decide on whether to issue notice to the Attorney General, whether the case may be referred to a larger bench for consideration of substantive questions of law and how will these 10 questions be considered by the court.

The post Prashant Bhushan 2009 contempt case to be heard by another bench appeared first on SabrangIndia.