Judgment (Sentencing) in Plain English

The Court took suo moto cognisance of Prashant Bhushan’s two tweets: one attributed responsibility to the Supreme Court in ‘destructing’ India’s democracy for the past six years, while the other was on the Chief Justice of India accompanied by a picture of CJI Bobde on a motorcycle. The Court initiated criminal contempt proceedings. On 14 August, the Court held Bhushan guilty of criminal contempt. Around two weeks later, on August 31st, the Court fined Bhushan INR 1. He is required to pay this before September 15th 2020. Further, in the event of non-compliance Bhushan will be punished with three-months imprisonment and debarred from practising law for three years. This is a plain English summary of the sentencing judgment.

 

Bhushan Cannot Invoke the Defence of Truth 

During the proceedings, Bhushan claimed that he should not be punished for criminal contempt as the content of his tweets was ‘true’: truth is a statutory exception for contempt. In the first part of the judgment, the Court closely examined this claim.

S. 13 of the Contempt of Courts Act, 1971 provides truth as a defence for contempt. However, this defence needs to meet two conditions: a) the statement must be in public interest b) it must be bona fide, i.e., in good faith. The Court must be convinced of both these conditions before applying the defence. Invoking Indirect Tax Practitioners’ Association v R.K. Jain, the Court highlighted that ‘truth should ordinarily be allowed as a defence unless the Court finds that it is only a camouflage to escape the consequences of deliberate or malicious attempt to scandalise the court or is an interference with the administration of justice.’

While the tweets were short and made two claims, the Court noted that in the Reply Affidavit, Bhushan referred to a ‘series of allegations’ concerning the justices of the Court. If these claims were to be considered, the Court believed that is would ‘amount nothing else but the aggravation of contempt’. Bhushan’s claim of truth as the defence cannot be considered to be ‘bona fide’ or in ‘good faith’. Instead, his defence ‘is more derogatory to the reputation of this Court and would amount to further scandalizing and bring administration of justice in disrepute, in which the common citizen of this country has faith and approaches this Court as a last resort for getting justice.’ Bhushan’s ‘reckless allegations’ were politically motivated and had the potential of ‘shaking the very edifice of the judicial administration and also shaking the faith of common man in the administration of justice’.

 

 Are Bhushan’s Tweets Protected by Free Speech? 

While Article 19 (1) (a) guarantees a fundamental right to freedom of speech and expression, Article 19 (2) codifies ‘contempt of court’ as a restriction of this freedom. If freedom of speech results in ‘scandalising’ the Court and/or the people of the Court, then the constitutional protection under 19 (1) (a) would not stand.

For the Court and the judges, the situation is unique. Conventionally, the judges cannot ‘express their opinions in public’; without engaging in a public debate the judges use their judgments as forms of their expression. When allegations are levied on the judges, in media, the judges are constrained by convention and cannot respond. The Bar, therefore, must be the ‘spokesperson ‘to protect the judiciary.

What Article 19 (1) (a) protects is ‘fair criticism’ of the court which is rooted in ‘authentic and acceptable material’. If speech creates apprehension regarding the ‘integrity, ability and fairness of the Judge’ it is contempt of the court. The Court concluded that Bhushan’s tweets did not pass the ‘fair criticism’ test and amounted to contempt of the court. Additionally, as an advocate with 35 years of experience, the bar would be higher for Bhushan as the officer of the Court.

 

Statements in the Media about Sub-Judice Cases

The Court asked two questions: a) Whether the Court should be influenced by statements published in the media? b) In a sub-judice case can statements on the case be made? Answering both these questions in negative, the Court held that when it is exercising its judicial functions, it cannot allow for public opinions or media reports to influence its decision. The Court relied on a host of case laws including R.K. Anand v. Registrar, Delhi High Court, and Reliance Petrochemicals Ltd v. Proprietors of Indian Express News-Papers Bombay Pvt. Ltd & Ors to hold that administration of justice must be ‘unimpaired’ and that ‘judicial decision should not be pre-empted or circumvented by public agitation or publications’.

Bhushan released his statement to the media in advance to the hearing. In a sub-judice matter, releasing such statement that he made to the Court, would amount to ‘an act of impropriety’ and is an ‘attempt to coerce the decision of the Court by the influence of newspaper and media…’

 

The Punishment

Having concluded that Bhushan’s invocation of ‘truth’ as a defence failed the tests of being in the public interest and good faith, the Court noted that it had to impose an appropriate punishment. Also, Bhushan refused to apologise to the Court after numerous indications, demonstrating that he stood to his ground and has no remorse.

Taking into account the Attorney-General’s plea that the Court should exhibit ‘magnanimity’ and ‘statesmanship’ and that the Court, from the beginning, ‘was desirous of giving quietus to this matter’, Bhushan has been fined INR 1. He is required to deposit this with the Court Registry by 15 September 2020, failing which he will be imprisoned for three months and also debarred from practising in the Supreme Court for three years.