SC Sentences Prashant Bhushan To A Fine Of Rupees One In The Contempt Case Over His Two Tweets

                      “Judges cannot speak out even if they are humiliated. How long can the Supreme Court and the Judges suffer the humiliation heaped regularly? It is not a question of one or two tweets. Look at the number of contemptuous statements made by him and the number of contempt cases initiated against him. Yet he justifies his conduct. What use is a warning to someone who does not realize his mistake?”

–          Justices Arun Mishra, BR Gavai and Krishna Murari of Apex Court

We have seen for ourselves how the Supreme Court most recently on August 31, 2020 has in a contempt case titled “In Re: Prashant Bhushan And Anr. in Suo Motu Contempt Petition (Crl.) No. 1 of 2020 taken suo motu cognizance against advocate Prashant Bhushan of the Supreme Court for his two tweets. A three Judge Bench headed by Justice Arun Mishra and along with him Justice BR Gavai and Justice Krishna Murari  have sentenced him to pay a fine of Rupee One, which is to be deposited with the Supreme Court Registry within September 15, 2020. In case of default to deposit, Prashant Bhushan will have to undergo imprisonment for three months and will be debarred from practice for three years!

Needless to say, this is nothing but just a slight reprimand from the top court to Prashant Bhushan which is quite ostensible also when one goes through the 82-page lengthy judgment! A leading role was played by the Attorney General – KK Venugopal who pleaded for magnanimity from the Apex Court for which his stellar contribution cannot be denied! Earlier Prashant Bhushan was held guilty of contempt vide judgment dated 14.08.2020 over his tweets made on June 27 and 29 about the Supreme Court’s functioning and the Chief Justice of India. But the final judgment was not pronounced!

No doubt, it must be mentioned that it was Mehek Maheshwari who is an advocate who had filed a petition before the Supreme Court on July 9 seeking initiation of contempt of court proceedings against Prashant Bhushan for his tweets. Based on Mehek’s petition, the Apex Court then suo motu (on its own) took cognizance of the matter and listed the case for the first time on July 22 and issued notice to Bhushan the same day! After a day-long hearing on August 5, the Supreme Court pronounced its verdict on August 14.

Be it noted, Bhushan’s first tweet said that, “When historians in the future look back at the last six years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the SC in this destruction, and more particularly the role of the last four CJIs.” The second tweet referred to CJI Sharad Bobde and said that, “The CJI rides a Rs 50-lakh Harley Davidson motorcycle belonging to a BJP [Bharatiya Janata Party] leader at Raj Bhavan, Nagpur, without wearing a mask or helmet, at a time when he keeps the SC on lockdown mode denying citizens their fundamental right to access justice!”

 

To put things in perspective, it is pointed in para 3 that, “At the beginning of the proceedings itself, we had called upon Shri K.K. Venugopal, learned Attorney General for India, to address us. In the morning session, we have heard him at great length. Learned Attorney General stated that this Court, by showing magnanimity, should not impose any sentence on Shri Prashant Bhushan. He submitted that the tweets made by Shri Prashant Bhushan could be considered as bona fide criticism in order to seek improvement in the functioning of the institution. He further stated, that taking into consideration the causes represented by Shri Prashant Bhushan in various public interest litigation and the service rendered by him to different classes of society by bringing their issues to the notice of this Court, the Court should consider not imposing any sentence on him.”

Honestly speaking, it is then very rightly pointed out in para 4 that, “When controverted with various statements made by the contemnor in the affidavit in reply, the learned Attorney General fairly conceded that such statements were not warranted.”

While elaborating further, it is then disclosed in para 5 that, “He suggested that such statements be either withdrawn by the contemnor or should be taken off from the pleadings. When further confronted with the Contempt Petition filed by the learned Attorney General in one of the proceedings against the very same contemnor, the learned Attorney General submitted that since Shri Prashant Bhushan, on a piece of paper, had expressed his regret, he expressed desire not to pursue the said contempt proceedings. The learned Attorney General attempted to read out the statement made by Shri Prashant Bhushan in the contempt proceedings, which was initiated in the year 2009, wherein Shri Prashant Bhushan had expressed his regret. However, when it was pointed out to the learned Attorney General that the said statement was not pertaining to the present proceedings but earlier proceedings, the learned Attorney General stated that when Shri Prashant Bhushan had expressed regret in other proceedings, there is no reason as to why he should not express regret in the present proceedings also. We had also pointed out to the learned Attorney General that the contemnor was pressing the statement made in the affidavit and was raising a plea of truth as a defence. In such circumstances whether it would be appropriate on the part of this Court to take off the said statements from the pleadings. The learned Attorney General, faced with this situation, stated that unless the contemnor withdraws the said statements in view of the provisions of Section 13(b) of the Act, the statements cannot be taken off.”

To be sure, the Bench then again made known the stand of Attorney General by pointing out in para 7 that, “After Dr. Dhavan, learned senior counsel completed his arguments, we again called upon learned Attorney General, to address us by taking into consideration the submissions made on behalf of contemnor by Dr. Dhavan, learned senior counsel. Learned Attorney General was fair enough to state that insistence on the part of the contemnor to press into service various objectionable statements made in the pleading was not warranted and also not justifiable. He fairly stated that in the interest of the administration of justice, the contemnor ought not to have made such statements. He further stated that such statements, which were also concerning various sitting and retired judges of this Court, including the past and present Chief Justices were totally unjustifiable, specifically so when the retired or sitting judges were not in a position to defend themselves. He further submitted that no verdict could be passed without hearing such Judges, and as such, the process would be endless. He submitted that such a defence cannot be looked into. From the tenor of the submission made by the learned Attorney General, it was apparent that the learned Attorney General was at pains due to the statements made by the contemnor in the affidavit.”

Commendably, the Bench then goes on to also very rightly point out about Dr Rajeev Dhavan’s candid acknowledgement in para 10 stating that, “Dr. Dhavan, learned senior counsel, fairly stated that publication of the supplementary statement of the contemnor in various print as well as other media in advance was not proper, and he also stated that no lawyer or litigant should either give an interview, talk to the press or make any statement with regard to pending litigation before any court. He submitted that though a fair criticism of judgment after the judgment was pronounced was permissible in law, making any statement or giving press interviews during the pendency of the litigation was not permissible.” Dr. Rajeev Dhavan also very rightly pointed out that, “In the Ayodhya case, I refrained from making any comment on the judgment as I had argued the case.” Dr Dhavan had appeared on behalf of Muslims in Ayodhya case and his conduct was certainly exemplary which all lawyers must emulate!

Equally commendable is what is then stated in para 11 that, “When Dr. Dhavan, learned senior counsel was confronted with the situation as to how the sitting, as well as retired judges who are not supposed to speak to anyone or to give interviews can defend the allegations made against them, Dr. Dhavan responded that though this Court should not reprimand the contemnor for the tweets made by him, this Court should lay down guidelines for the precautions to be observed by the lawyers and litigants while making any statements with respect to the judges and the institution of administration of justice. He submitted that this, apart from giving a right signal to the contemnor, would also give a signal to all the members of the Bar in the country.”

Regarding the remarks and tweets made by Bhushan, the Bench minces no words to say in para 52 that, “We find no justification to make such a remark/tweet, particularly when it is made by a lawyer with 35 years standing like Shri Prashant Bhushan, who is an officer of the Court and advocates enjoy equal dignity in the system. In spite of learned Attorney General’s insistence that the averments made in the defence should be withdrawn and regret should be submitted, Dr. Dhavan, learned senior counsel, stated that the contemnor is not ready to withdraw the defence taken in the reply. That further makes it clear that while insisting with the unjustifiable defence and insistence to go with it makes the entire episode the one which cannot be ignored.”

Without mincing any words, the Bench then makes it unequivocally clear about lawyer’s ethical duty and fair criticism in para 53 that, “The tweet has been made by the lawyer who has the standing of 35 years and who is involved in several public interest litigations. However, merely because a lawyer is involved in the filing of the public interest litigation for the public good it does not arm him to harm the very system of which he is a part. Though expectation from an ordinary citizen may be different, the duties and expectations that are expected from a lawyer of long standing are on higher side. An advocate cannot forget his ethical duty and responsibility and cannot denigrate the very system of which he/she is an integral part. 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.”

What’s more, the Bench then concedes in para 90 that, “The Court, from the very beginning, was desirous of giving quietus to this matter. Directly or indirectly, the contemnor was persuaded to end this matter by tendering an apology and save the grace of the institution as well as the individual, who is an officer of the Court. However, for the reasons best known to him he has neither shown regret inspite of our persuasion or the advice of the learned Attorney General. Thus, we have to consider imposing an appropriate sentence upon him.”

To say the least, the Bench then says in para 91 that, “Duly balancing the factors urged by Dr. Dhavan as to the offender, offence, the convicting judgment and the defence taken we have to decide the question of sentence. In our considered view, the act committed by the contemnor is a very serious one. He has attempted to denigrate the reputation of the institution of administration of justice of which he himself is a part. At the cost of repetition, we have to state that the faith of the citizens of the country, in the institution of justice is the foundation for rule of law which is an essential factor in the democratic set up.”

Most significantly, the Bench then minces no words to say aptly and appropriately in para 92 that, “We have given deep thought as to what sentence should be imposed on the contemnor. The conduct of the present contemnor also needs to be taken into consideration. This Court in Tehseen Poonawala (supra) has observed that the said matter was a fit matter wherein criminal contempt proceedings were required to be initiated. However, the court stopped at doing so observing that it would have been an unequal fight. The learned Attorney General had also initiated contempt proceedings against the present contemnor, however on the contemnor submitting regret, the learned Attorney General sought withdrawal of the said proceedings. However, the said proceedings are still pending. In the present matter also not on one occasion but on several occasions, we not only gave opportunity but also directly or indirectly persuaded the contemnor to express regret. Not only that the learned Attorney General had also suggested that it was in the fitness of things that a contemnor expresses regret and withdraws the allegation made in the affidavit in reply, which request was not heeded to by the contemnor. The contemnor not only gave wide publicity to the second statement submitted before this Court on 24.08.2020 prior to the Court, but also gave various interviews with regard to sub judice matter, thereby further attempting to bring down the reputation of this Court. If we do not take cognizance of such conduct it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Re. 1/- (Rupee one).”

Finally, we see that the Bench observes in para 93 that, “We, therefore, sentence the contemnor with a fine of Re. 1/- (Rupee one) to be deposited with the Registry of this Court by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practicing in this Court for a period of three years.”

On his part, Prashant Bhushan has gracefully accepted the punishment and has said that, “I will respectfully pay the fine as I would have done in case of any other punishment that the court would have given me. My tweets were not intended to disrespect SC but were meant to express my anguish at what I felt was a deviation from its sterling record. This is watershed moment for freedom of speech and seems to have encouraged many people to speak out against injustices.” He also said that he reserve the right to file review plea.

It cannot be ignored that the former Attorney General of India Soli J Sorabjee said that, “I don’t agree with the judgment (punishing Bhushan for contempt of court). The court should have allowed him to prove his defence. The courts must have broad shoulders to shrug off such comments made by the lawyer.” Yet another eminent lawyer and former Solicitor General of India – Harish Salve reacted by saying that, “I am yet to read the judgment. But this (punishment of Re 1 and in default 3 months jail term and 3 years debarment from practice in SC) will put Bhushan in a piquant situation. If he does not pay, he will be seen as an obstinate person who encourages defiance of court verdicts. If he does, he acknowledges that he made a mistake, which I do not think he will find easy.” Abhishek Manu Singhvi who is also an eminent lawyer and former Additional Solicitor General said that, “First the lighter side: Judgment of 180 pages to convict plus 82 pages to sentence = Re 1 fine. More seriously, even after recording their views, they should have let him off with a severe warning. Either way, it’s been a victory for Prashant, something the SC would certainly not have intended.”

I very strongly believe like Soli J Sorabjee that Prashant Bhushan should have been given an opportunity to prove corruption charges that he has levelled against so many Judges and also he should have been allowed to prove his defence.  If he was unable to prove then he should have been punished. But since this latest judgment has come directly from the top court, it has to be accepted gracefully which even Prashant Bhushan has gladly done as is quite ostensible from his reaction also!

I am sure Prashant Bhushan will also pay heed to what the top court has advised him and from next time instead of talking endlessly in media on  serious corruption charges against Judges would produce the evidence straight before the courts so that the whole world can see for themselves what the real truth is! But to just level serious allegations without any proof and that too against many Supreme Court Judges and even former Chief Justices of India cannot be ever justified under any circumstances!

Sanjeev Sirohi

SC holds Prashant Bhushan guilty of contempt for tweets against judiciary

The Supreme Court on Friday held activist-lawyer Prashant Bhushan guilty of contempt for his two derogatory tweets against the judiciary.

A bench headed by Justice Arun Mishra said it would hear on August 20 the arguments on quantum of sentence to be awarded to Bhushan in the matter.

A contemnor can be punished with simple imprisonment for a term which may extend up to six months or with a fine of up to Rs 2,000 or with both.

The apex court had on August 5 reserved its verdict in the matter after Bhushan had defended his tweets, saying they were against the judges regarding their conduct in their personal capacity and they did not obstruct administration of justice.

On July 22, the top court had issued a show cause notice to Bhushan after initiating the criminal contempt against him after taking note of a petition.

While referring to the tweets by Bhushan, the apex court had earlier said these statements are prima facie capable of “undermining the dignity and authority” of the institution of the Supreme Court in general and the office of Chief Justice of India in particular, in the eyes of the public at large

Senior advocate Dushyant Dave, appearing for Bhushan in the matter, had said, The two tweets were not against the institution .

Bhushan has made immense contribution to the development of jurisprudence and there are at least 50 judgments to his credit , Dave had said, adding that the court has appreciated his contributions in cases like 2G scam, coal block allocation and in mining matters.

Referring to the ADM Jabalpur case on suspension of fundamental rights during the Emergency, the senior advocate had said that even extremely uncharitable remarks against the judges were made and no contempt proceedings were made out.

In a 142-page reply affidavit filed in the matter, Bhushan had stood by his two tweets and had said the expression of opinion, however outspoken, disagreeable or unpalatable to some , cannot constitute contempt of court.

Bhushan, in the affidavit, has referred to several apex court judgements, speeches of former and serving judges on contempt of court and the stifling of dissent in a democracy and his views on judicial actions in some cases.

Preventing citizens from demanding accountability and reforms and advocating for the same by generating public opinion is not a ‘reasonable restriction’, the affidavit had said, adding that the Article 129 cannot be pressed into service to stifle bonafide criticism.

Further hearing needed in 2009 contempt case against Prashant Bhushan and journalist Tarun Tejpal : SC

 The Supreme Court on Monday said further hearing was required in the 2009 criminal contempt case against activist-lawyer Prashant Bhushan and journalist Tarun Tejpal to examine whether comments on corruption against judges per se amounted to contempt or not.

A bench headed by Justice Arun Mishra and comprising justices B R Gavai and Krishna Murari posted the matter for hearing on August 17.

The top court had in November 2009 issued contempt notice to Bhushan and Tejpal for allegedly casting aspersions on some sitting and former top court judges in an interview to a news magazine. Tejpal was then editor of the magazine.

On August 4, the apex court had made clear to Bhushan and Tejpal that it would hear the case against them, if it does not accept their explanation” or “apology in the matter.

The apex court had on August 4 said that the court has not received the explanation/apology submitted by Bhushan and Tejpal so far and would pronounce its order on whether to accept them or not.

Explanation/apology submitted by Prashant Bhushan/Respondent No.1 and Tarun Tejpal/Respondent No.2, have not been received so far. In case we do not accept the explanation/apology, we will hear the matter. We reserve the order, the bench had said in its last week order.

During the brief hearing conducted through video-conferencing last week, the bench had said it does not want to curtail the freedom of speech and expression but for the contempt there is a thin line.

On July 22, the top court had issued notice to Bhushan in a separate suo motu contempt proceedings initiated against him for his alleged derogatory tweets against the judiciary, saying his statements prima facie “brought the administration of justice in disrepute”.

The apex court had on August 5 reserved its verdict on the contempt case against Bhushan.

Rafale: Official Secret Act Vs Right To Information.

The government is focusing on whether or not documents released in the media are ‘secret’, without going into their veracity. For discovering an incriminating document from the defence department, a journalist is threatened. For attaching those documents to public interest litigation, a lawyer is threatened with prosecution under the Official Secrets Act. The battle is now between the freedom of speech and official secrecy. Can official deals, if wrongful, be protected under the curtains of secrecy? In the wake of resistance and criticism from media bodies and the public, the attorney general said the government had no intention of prosecuting journalists and lawyers for using the ‘documents’.

Then-Centre filed an affidavit on March 13, 2019 stating that those who leaked were guilty of penal offences including theft. It was claimed that annexed notes were marked ‘secret’, and exempted from disclosure even under the Right to Information Act. It also raised a point under the Evidence Act, on the use of evidence derived from unpublished official records relating to the affairs of the state without permission.

These claims reflect the intention to attack the review petition on technical grounds, without condemning the veracity of the contents that strengthen allegations. First of all, it is not a trial in which admissibility of evidence need to be thoroughly examined; the government can raise those points in the trial that happens after the investigation the petitioners are seeking. The facts of the case have to be considered to decide whether a probe should be ordered. The second point is on the documents being marked ‘secret’. Which part of the deal is secret, and why? The test established by the Supreme Courts of India and the US in several cases to withhold a document as secret is the doctrine of ‘clear and present’ danger. The Pentagon Papers case in the US and Raj Narain’s case against Indira Gandhi in India, the Supreme Courts laid down the norm that the danger should be so clear that secrecy needs to be maintained. In Pentagon Papers, failures of the US Army in Vietnam were leaked by the New York Times, Washington Post and others. The US government wanted to prevent newspapers from publishing these reports, citing ‘national security’. In the Raj Narain case, the Centre was refusing to share the blue book for the then prime minister’s visit during electioneering, even many years after the event. The Centre has a duty to explain how a dissent note from three negotiators would pose a clear and present danger to ‘security’.

To say that this document could not have been disclosed even under RTI Act is legally not tenable, because the RTI Act provided for disclosure of defence details and information from exempted organisations as well in the context of corruption and human rights violation. The political executive cannot use the Official Secrets Act and a ‘national security’ defence, without justifying them, to hide the truth and prevent a probe. The very origins of the Official Secrets Act was to muzzle the voice of the opposition and criticism. The pre-independence 1923 Official Secrets Act promotes secrecy and confidentiality around ‘governance’. It is shocking that attorney general, representing the Centre, said the prosecution had stolen ‘secret’ documents and pleaded with the Supreme Court not to consider the stolen parts of the deal papers.

The review of the apex court’s December 14 decision will have very serious implications because the petitioners – Yashwant Sinha, Arun Shourie and Prashant Bhushan – are seeking an FIR against Prime Minister Narendra Modi and others involved in the Rafale deal. Relying largely on documents published in the media, the petitioners want the Supreme Court to reverse their conclusion about the absence of alleged commercial favouritism, because certain critical information was suppressed from judicial scrutiny.

The AG attacked the review petition, claiming the documents were stolen and then attached to the petition before the bench, which means the petitioners are involved. It is in this context that the threat of prosecution under the Official Secrets Act has to be examined. Though the AG has retreated from this threat, it has stirred a debate about practical application of provisions of the Official Secrets Act, because of their inconsistency with the Right to Information Act, 2005. One must see how official secrets are valid when transparency is the law and disclosure the rule.

Secrecy is now an exception.

More than a threat to the freedom of press and due process, the use and abuse of the Official Secrets Act threatens good governance and promotes corruption. Culture of secrecy As rightly observed by the Second Administrative Reforms Commission, the Official Secrets Act is founded on colonial mistrust of people and primacy of officials who deal with citizens. The culture of secrecy was established through this draconian law. The commission’s recommendation to repeal it was rejected. In 2017, a committee of the cabinet secretariat recommended making the Act more transparent, at least. That was not acted on. On the one hand, the government fills information commissions with former bureaucrats to discourage disclosure, and on the other promotes the use of the Official Secrets Act.

The pre-independence Congress party had resolved to repeal the Act, but every party including the Congress has used it to stifle voices. When it is used in the forum of the Supreme Court to stall a probe into the Rafale deal, the public must doubt the commitment to transparency and zero tolerance of corruption. Every document is not a secret and every leak is not a crime under the Official Secrets Act. Criminality lies in “intending to benefit enemy country directly or indirectly”. Sections 3 and 5 of the Act refer to making or accessing a sketch, plan, model or note or document which is useful to the enemy or wrongfully communicating it, which is likely to affect the sovereignty and integrity of India, security of state or friendly relations with foreign state.

The Act does not define ‘secrecy’

The most interesting factor is that the Officials Secrets Act does not define ‘secret’ or ‘official secret’, and does not provide a ‘classification’ of documents. The Manual of Departmental Security Instruction (MODSI) of the Ministry of Defence has laid down procedures and criterion for classification of documents as ‘top secret’, ‘secret’ and ‘confidential’. Papers containing vital information which cannot be disclosed for reasons of national security are classified as ‘top secret’, and these must not be disclosed to anyone for whom they are not essential. Such papers include references to current or future military operations, intending movements or disposition of armed forces, shaping of secret methods of war, matters of high international and internal political policy, ciphers and reports derived from secret sources of intelligence.