“Freedom of speech cannot be curtailed,” said the Supreme Court while handing down the sentence, referring to “sane advice” from Attorney General KK Venugopal to the court and to Prashant Bhushan.

The judgment drew instant reactions from members of the legal fraternity and politicians, most of whom praised the top court for letting off the lawyer-activist with a “token punishment”.

“Without commenting on the merits of the case, the court has shown maturity. It would have been better if he had been forgiven. Court could have given him warning also but this is the best scenario. But this is a symbolic punishment, the minimum prescribed in the law. Court wanted to show majesty of law is Supreme and some punishment had to be given once found guilty. The punishment of Re 1 is token punishment and the rest are default clauses,” former Chief Justice of India Justice RM Lodha said.

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Attorney General KK Venugopal reiterated his appeal to the apex court to take a “compassionate view” and forgive Bhushan. However the court said the lawyer has not apologised yet and has even made unfavourable remarks in the affidavit filed in his defence.

Venugopal had urged the top court last week as well to spare Bhushan from any harsh punishment.
The bench then sought views of senior advocate Rajeev Dhavan, counsel for Bhushan, on punishment to be awarded in the contempt case. Dhavan said judgment convicting Bhushan should be recalled, no sentence be imposed on him.

“Please do not make Prashant Bhushan a martyr. After Babri Masjid was demolished, there were crowds to welcome Kalyan Singh. So don’t make him a martyr,” he said.

“Not only the Bhushan contempt case be closed, the controversy should be put to end. SC should give statesman like message,” he added.

To this, Justice Mishra replied, “I am not criticising Mr Bhushan…There is a difference between a court officer and a politician…if you are going to press for everything, you are identifying with the former more.”

Meanwhile, a new Supreme Court bench will hear the 2009 contempt case against Bhushan from next month as Justice Arun Mishra retires in the first week of September. The bench headed by Justice Mishra said the matter will be listed before an appropriate bench on September 10 as they are ‘short of time’.

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Bhushan said, in a statement submitted to the apex court, that his tweets represented his bona fide beliefs which he still continues to hold.

“An apology has to be sincerely made. If I retract a statement that I otherwise believe to be true or offer an insincere apology that in my eyes would amount to contempt of my conscience and of an institution (Supreme Court) that I hold in the highest esteem,” the statement said. “An apology for expression of beliefs, conditional or unconditional, would be insincere,” Bhushan said.

Bhushan said that as an officer of apex court it is his duty to speak up when he believes there is a deviation from the court’s sterling record.

“Therefore I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples’ rights,” he said.

Bhushan added “My tweets represented this bona fide 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.”

At the last hearing on Thursday, the court had sought an unconditional apology and gave the 63-year-old a few days to “reconsider” his statement.

“Don’t just apply legal brain here,” Justice Arun Kumar Mishra, who led the bench, had told Mr. Bhushan, commenting that he had not convicted anyone of contempt in 24 years as a judge. But freedom of speech is not absolute, Justice Mishra said, adding, “You may do hundreds of good things, but that doesn’t give you a license to do ten crimes”.

The tweet in question accused Chief Justice SA Bobde of riding a motorcycle- he was photographed on a Harley Davidson in Nagpur last month- without a helmet and face mask while keeping the court in lockdown and denying citizens the right to justice.

The other tweet was about four previous Chief Justices of India whom he accused of having a role in “destroying democracy”.

He might face simple imprisonment for six months or with a fine of up to Rs 2000 or with both as punishment.

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True, the constitutional right to freedom of speech would not prevent the courts to punish contempt of themselves. However, as explained by constitutional expert V.N. Shukla,  “Judges have no general immunity from criticism of their judicial conduct, provided that it is made in good faith and does not impute any private motive to those taking part in the administration of justice. “Justice is not a cloistered virtue,” said the Privy Council in Ambard v. Attorney General for Trinidad and Tabago, “She must be allowed to suffer the scrutiny and respectful, though outspoken comments of ordinary men”. (Constitution of India, by V.N. Shukla  7^th edition  published by Eastern Book Company. page 82.)

Shukla further pointed out the summary jurisdiction exercised by superior courts in punishing contempt of their authority exists for the purpose of preventing interference with the course of justice. This is certainly an extraordinary power which must be sparingly exercised but where the public interest demands it, the court will not shrink from exercising it and imposing punishment even by way of imprisonment in cases where a fine may not be adequate. This jurisdiction will not ordinarily be exercised unless there is real prejudice which can be regarded as substantial interference with due course of justice as distinguished from a mere question of propriety.

In C.K.Daphtary v.O.P.Gupta (AIR 1971 SC 1132) the Supreme Court in examining the scope of the contempt of court, laid down that the test in each case is whether the impugned publication is a mere defamatory attack on the judge or whether it will interfere with the due course of justice or the proper administration of law by the court. A distinction should be made between defamatory attacks on a judge and the contempt of court.

Now, what did Prashant Bhushan do? He made two tweets one on 27 June 2020 in which he said, “When historians in 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 Supreme Court in this destruction , and more particularly the role of the last four Chief Justices of India.”

In the second tweet on 29 June Bhushan put out a photograph of the Chief Justice of India, S.A. Bobde sitting on a motorcycle and said “CJI rides Rs.50 lakh motorcycle belonging to a BJP leader at Raj Bhawan, 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 Supreme Court held that the two tweets have the effect of destabilising the very foundation of this important pillar of Indian democracy. It took umbrage at Bhushan linking the Supreme Court to an Emergency like situation and held his tweets false, malicious and scandalous.

As pointed out by the Citizens for Democracy the tweets made by Prashant Bhushan were expressions of anguish felt by thousands of victimized citizens who are at the receiving end of state power and who cry for judicial protection. Holding him guilty and punishing him will in no way promote administration of justice or enhance the majesty of law.

What is the way out? In both the suo-motu contempt cases, as suggested by Justice (Rtd) Kurian Joseph, in view of the substantial questions of law on the interpretation of the Constitution of India and having serious repercussions on the fundamental rights, the matter is required to be heard by a Constitution Bench.  It should also deliberate, whether a person convicted by the Supreme Court of India in a suo-motu case should get an opportunity for an intra-court appeal since in all other situations of conviction in criminal matters, the convicted person is entitled to have a second opportunity by way of an appeal.

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