Contempt of court is the most seriously debated constitutional issue these days. With the punishment meted out to the contemnor by the Supreme Court of India today vide judgment captioned, “IN THE SUPREME COURT OF INDIA INHERENT JURISDICTION SUO MOTU CONTEMPT PETITION (CRL.) NO. 1 OF 2020 IN RE: PRASHANT BHUSHAN AND ANR. JUDGMENT”, the Court has in no uncertain terms declared its stand on the independence of judiciary which forms the basic structure of the Constitution. Not only that the Court solved the ‘Bhushan imbroglio’ but it also reaffirmed the inviolable stature and status of the tallest constitutional institution in the scheme of things. Referring to the issue the Court observed:

“91. Duly balancing the factors urged by Dr. Dhavan as to the offender, offence, the convicting judgment and the defense 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.

92. 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 same being tendered 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).

93. We, therefore, sentence the contemnor with a fine or 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.”

Already reports are out that the contemnor is “accepting” the punishment of one rupee fine under the pretext that the amount is being contributed by his lawyer. A strategic way to wriggle out of the punishment of imprisonment for 3 months and avoiding still drastic component of the sentence of being debarred from appearing before the Supreme Court for three years. The Court has done what is required to be done under the Constitution without losing an inch to the contemnor and the bandwagon emerged with the pandemonium in his support.

The 82 page judgment is a brilliant expression of the gravity of the occasion as well as the permissibility of compromise that the Court can allow in situations calling for stern action. It is to be noted that the original judgment holding Bhushan guilty of contempt runs into 108 pages. The two judgments form a jurisprudential conspectus in evolving the updated thoughts on cleansing the stream of justice to free it of polluting and contumacious behavior by acts of contempt. The latter judgment handing out the punishment tallies with the thinking of the Court in the judgment of 14-08-2020 wherein the Court found the contemnor guilty of criminal contempt beyond reasonable doubts.

 “73. The Indian Constitution has given a special role to the constitutional courts of this country. The Supreme Court is a protector of the fundamental rights of the citizens, as also is endowed with a duty to keep the other pillars of democracy i.e. the Executive and the Legislature, within the constitutional bounds. If an attack is made to shake the confidence that the public at large has in the institution of judiciary, such an attack has to be dealt with firmly. No doubt, that it may be better in many cases for the judiciary to adopt a magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement.

However, when there appears some scheme and design to bring about results which have the tendency of damaging the confidence in our judicial system and demoralize the Judges of the highest court by making malicious attacks, those interested in maintaining high standards of fearless, impartial and unbending justice will have to stand firmly. If such an attack is not dealt with, with requisite degree of firmness, it may affect the national honor and prestige in the comity of nations. Fearless and impartial courts of justice are the bulwark of a healthy democracy and the confidence in them cannot be permitted to be impaired by malicious attacks upon them. As observed by Justice Krishna Iyer in the case of Re: S. Mulgaokar(supra), on which judgment, Shri Dave has strongly relied on, if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.

74. The summary jurisdiction of this Court is required to be exercised not to vindicate the dignity and honor of the individual judge, who is personally attacked or scandalized, but to uphold the majesty of the law and of the administration of justice. The foundation of the judiciary is the trust and the confidence of the people in its ability to deliver fearless and impartial justice. When the foundation itself is sought to be shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. The scurrilous/malicious attacks by the alleged contemnor No.1 are not only against one or two judges but the entire Supreme Court in its functioning of the last six years. Such an attack which tends to create disaffection and disrespect for the authority of this Court cannot be ignored. Recently, the Supreme Court in the cases of National Lawyers Campaign for Judicial Transparency and Reforms and others vs. Union of India and others and Re: Vijay Kurle & Ors (supra) has suo motu taken action against Advocates who had made scandalous allegations against the individual judge/judges. Here the alleged contemnor has attempted to scandalize the entire institution of the Supreme Court.

We may gainfully refer to the observations of Justice Wilmot in R. v. Almon16 made as early as in 1765: “… And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice, and, in my opinion, calls out for a more rapid and immediate redress than any other obstruction whatsoever; not for the sake of the Judges, as private individuals, but because they are the channels by which the King’s justice is conveyed to the people.”

75. The tweets which are based on the distorted facts, in our considered view, amount to committing of ‘criminal contempt’.

76. Insofar as the alleged contemnor No.2 is concerned, we accept the explanation given by it, that it is only an intermediary and that it does not have any control on what the users post on the platform. It has also showed bona fides immediately after the cognizance was taken by this Court as it has suspended both the tweets. We, therefore, discharge the notice issued to the alleged contemnor No.2.

77. In the result, we hold alleged contemnor No.1 – Mr. Prashant Bhushan guilty of having committed criminal contempt of this Court.”

The two tweets for which the contemnor was held liable were made out of place and out of time and damaged the reputation of the Court. First one that the, “CJI rides a 50 Lakhs motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!”. The second one is more sweeping and disastrous as it hit the institution with arrogance and contumacy, “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”.

Having made the tweet and seen the debilitating effect they produced in the public domain the best course for the contemnor was to issue a statement that he meant no malice and that it was a spontaneous overflow of momentary thoughts. Instead he pursued the matter like a self appointed savior of judiciary, fundamental rights, administration of justice, and above all the constitution. Then throughout the court proceedings he was nonchalant and held a bold face. Finally, when the Court apprised his value for one rupee he accepted it in the most ‘unBhushan’ manner though earlier stated that he would not remit the fine. One rupee is not the issue. One rupee is the consideration for the contemnor’s pride; the other part of the punishment is for protecting the prestige of the court-three months simple imprisonment and debarring from appearance before the Court for three years. The Court came down very heavily on the contemnor after days of tense and high voltage proceedings.

The kindergarten proverb, “A stitch in time saves nine” is aptly applied here. Had the contemnor shown the sensitivity expressed on receiving the punishment by remitting the fine amount at the first instance when the Court honorably gave him opportunity to express regrets, several times, he may not have to bear the ignominy of being convicted for condemning the institution that gave him a career. The contemnor tag will remain attached to him for the rest of the time. He fought for no public cause except for getting endorsed his own vainglorious Quxotics.

Unfortunately for him, the target selected by him was wrong and he proved it through the conduct. It reminds one of the contempt action faced by Shri. E M S Nampoothiripad, the veteran Marxist leader and former Chief Minister of Kerala. For a loose-mouth comment on the judiciary as a whole EMS was convicted by the Kerala High Court. One component of the punishment was fine of thousand rupees. In the appeal, the Supreme Court upheld the conviction but reduced the fine to fifty rupees. But EMS had to carry the tag of a contemnor having suffered the strictures of the courts. “The conviction is based on certain utterances of the appellant, when he was Chief Minister, at a Press Conference held by him at Trivandrum, on November 9, 1967. The appellant showed cause against the notice sent to him and in an elaborate affidavit stated that the report ‘was substantially correct, though it was incomplete in some respects.’ This is what was reported:

“Marx and Engels considered – the judiciary as an instrument of oppression and even today when the State set up has (sic) not undergone any change it continues to be so, Mr Nambudiripad told a news conference this morning. He further said that Judges are guided and dominated by class hatred, class interests and class prejudices and where the evidence is balanced between a well dressed pot-bellied rich man and a poor ill-dressed and illiterate person the judge instinctively favours the former, the Chief Minister alleged. The Chief Minister said that the election of Judges would be a better arrangement, but unless the basic state set up is changed, it could not solve the problem.

Referring to the Constitution the Chief Minister said the oath he had taken was limited only to see that the constitutional provisions are practised. ‘I have not taken any oath’ the Chief Minister said, “that every word and every clause in the Constitution is sacred”. Before that he had also taken an oath, Mr Nambudiripad said, holding aloft a copy of the Marxist party’s programme and read out extracts from it to say that the oath had always held that nothing much could be done under the limitations of the Constitution.”The Marxist ideologue was taught some good lessons in communism and Marxism by the Court while dismissing the appeal.

“The question thus, in this case, is whether the appellant has said anything which brings him out of the protection of Art. 19 (I) (a) and exposes him to a charge of contempt of court. It is obvious that the appellant has misguided himself about the true teachings of Marx, Engels and Lenin. The teachings of Marx, Engels and Lenin. He has misunderstood the attack by them on state and the laws as involving an attack on the judiciary. No doubt the courts, while upholding the laws and enforcing them, do give support to the state but they do not do so out of any impure motives. They do not range themselves on the side of the exploiting classes and indeed resist them – when the law does not warrant an encroachment.

To charge the judiciary as an instrument of oppression, the judge as-guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the judiciary. It is clear that it is an attack upon judges, which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakens the authority of law and law courts. Mr V. K. Krishna Menon tried to support the action of the appellant by saying that judges are products of their environment and reflect the influences upon them of the society in which they move. He contended that these subtle influences enter into decision making and drew our attention to the writings of Prof. Laski, Justice Cardozo, Holmes and others where the subtle influences, of one’s upbringing, are described.

This is only to say that judges are as human as others. But judges do not consciously take a view against the conscience or their oaths. What the appellant, wishes to say is that they do. In this he has been guilty, of a great calumny. We do not find it necessary to refer to these writings because in our judgment they do not afford any justification for the contempt which has patently been committed. We agree with Justice Raman Nair that some of them have the exaggerations of the confessional. Others come from persons like the appellant, who have no faith in institutions hallowed by age and respected by the people. Mr V. K. Krishna Menon exhorted us to give consideration to the purpose for which the statement was made, the position of the appellant as the head of a State, his sacrifices, his background and his integrity.

On the other hand, we cannot ignore the occasion (a press conference), the belief of the people in his word as -a Chief Minister and the ready ear which many in the party and outside would to him. The mischief that his words would cause need not be assessed to find him guilty. The law punishes not only acts which do in fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administration of justice, there is not a semblance of doubt in our minds that the appellant was guilty on contempt of court.

Whether he misunderstood the teachings to Marx and Engels or deliberately distorted them is not to much purpose. The likely effect of his words must be seen and they have clearly the effect of lowering the prestige of judges and courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but cannot serve as a justification. We uphold the conviction. As regards sentence we think that it was hardly necessary to impose heavy sentence. The ends of justice in this case are amply served by exposing the appellant’s ignorance about the true teachings of Marx and Engels (behind whom he shelters) and by sentencing him to a nominal fine. We accordingly reduce the sentence of fine to Rs. 50/-. In default of payment of fine he will undergo simple imprisonment for one week. With this modification the appeal will be dismissed.

To Be Continued……

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