It is 11. 36 am on 31st Aug, 2020. Item No.1504. Court No. 3. Supreme Court of India. Justices Arun Misra, B R Gavai and Krishna Murari, are in attendance. Reports indicate that senior judge Arun Misra, slated to retire on 2nd Sept, 2020, has possibly authored his last of the impactful verdicts, among the many in his judicial career. And it was on the Digital Platform. This author was witness to it, as a concerned citizen and an officer of the court, until he along with others, not appearing in the case were ‘locked out of the room’. OMG, it has became an In Camera proceeding. Why?
It is now 12.47 pm, and it is Breaking News- the Supreme Court, while alluding to the ‘sage advice of the learned Attorney General on the sanctity of free speech, to both the court and Prashant Bushan’ has passed a brilliant order imbued with wisdom. This is what experience teaches you from the above.
Here is my take on the day, the pronouncement and the legacy that Justice Arun Misra may be leaving behind. And despite his suggestion that ‘Bar was the mother of Judiciary’, his disinclination to accept a Farewell from the Bar, was troublesome. But he may have endeared himself to the Bar with this beautifully balanced verdict.
Was it a case of the advocate, defiantly and disdainfully inviting it on himself, or it was a case of ‘irrational exuberance’ (as Justice V R Krishna Iyer called the willingness to exercise contempt jurisdiction) of the Learned Judges? It was too much to expect Prashant Bhushan, as he was egged on from the sidelines as well, (imagine the utter contempt of those who retweeted the tweets that Prashant Bhushan was held guilty of contempt for) to feel contrite or apologise. Senior Advocate Rajeev Dhawan, his lawyer, closed the arguments saying “Don’t make a martyr of my client by punishing and sentencing him”. Exactly. And the sagacious suggestion of the 88 year old Attorney General K K Venugopal, to let the contemner off with a rap on the knuckles was adhered to, but with a magical tweak.
Supreme Court took the glorious opportunity to reiterate its magnanimity by letting off Prashant Bhushan, with a Re.1/- fine, and has made mincemeat of his expectation to become a martyr. Sentencing him was surely necessary, as he was a serial offender. His conduct/counter, in the face of notice was also contumacious. On the other hand, a chivalrous view of his errant behaviour has endured to the legacy of the institution. The institution did need to sentence him, as it has, to send a message to the usual suspects that such attitude needed to cease.
Truly, as an officer of the court, one is delighted that a lovely legal balance has been struck, by imposing the nominal fine of Re.1/- with allied stern conditions that if he failed to pay the fine of Re.1/- on or before 15th Sept, 2020, he would invite on himself imprisonment for 3 months and disrobed for three years from practice. The message is loud and clear. The institution is big. Yet, it is large-hearted and magnanimous. But only to those who respect and regard the institution. Not to those who defy and seek to defame it.
If Prashant Bhushan fails to bow before the institution and pay Re.1/- as fine, then he would be revealing his utter contempt for the Rule of Law. If he is willing to be incarcerated for 3 months and be disbarred from practice for three years, it would not be a sacrifice. It would only reinforce the belief that he had little respect for the institution which has given him all that he is possessed of. The least he can give back is – Re.1/- and a reverential bow to the supremacy of law and the constitution, in defence of which he claims ‘ to have been practising over three decades’.
No matter what the liberal media has cacophonously complained of, the Supreme Court has lived up to its reputation, of being generous in the extreme. The Re.1/- fine is a classic rap on the knuckles, wrapped in iron chains. Skillfully, the law lords have granted fifteen days’ time to Bhushan and his comrades to sit, brainstorm, ruminate and come up with an informed response. Let me illustrate the ‘why’. The institution is far bigger than what these individuals seemingly tilt against.
Justice Markandey Katju, Supreme Court, who himself was hauled up for contempt of court, for his comments in a Facebook post, on a criminal case verdict, from the apex court, recalls an anecdote, which is revealing. “I remember once when I was sitting in my chamber at lunchtime in the Madras High Court, when two senior judges came to meet me, looking very upset. It appeared that a leaflet had been circulated against them calling them fools. On reading the leaflet, I started laughing. At this, they got even more upset, and said to me, “Chief, we have been defamed, and you are laughing.”I replied, “Look, you better learn how to ignore all this, or you will get blood pressure. So many things are said in a democracy and you must develop a thick skin, as these are occupational hazards.” At this, the judges tore up the leaflet and also started laughing. Katjusaab added for emphasis,“Why should Indian judges be so touchy? When the House of Lords delivered the judgment in the 1987 Spycatcher case, a prominent newspaper published as its headline “You Fools”with the photographs of Justices upside down. Fali Nariman, the eminent Indian lawyer, was in London at that time and he asked Lord Templeman who had delivered the majority judgment why the judges did not take action for contempt of court. Lord Templeman smiled, and said that judges in England do not take notice of such comments.In Balogh vs Crown Court, a case contested in England in 1975, the defendant told the judge “You are a humourless automaton. Why don’t you self destruct?” The judge smiled, but took no action.”
On the occasion of a CPM MLA M V Jayarajan being convicted for calling Judges Idiots-Sumbhan in malayalam (Jan,2015) – Justice Katju wrote in this media post. “In a recent judgment, a bench of the Indian Supreme Court convicted a Kerala ex-MLA for contempt of court for calling some judges fools, and sentenced him to four weeks imprisonment. In my opinion, this judgment is incorrect, totally unacceptable in a democracy, and violates the freedom of speech guaranteed by Article 19(1)(a) of the Constitution of India. In a democracy, the people are supreme and all authorities, whether President or Prime Minister of India, other ministers, judges, legislators, bureaucrats, police, army and so on are servants of the people. Since the people are the masters and judges their servants, the people have a right to criticize judges just as a master has the right to criticize his servant”.
As early in 1935 in R v.Dunbabin, Australian High Court, equivalent of their Supreme Court said, “ Any matter is a contempt which has a tendency to deflect the Court from a strict and unhesitating application of the letter of the law or, in questions of fact, from determining them exclusively by reference to the evidence. But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to impair the confidence of the people in the Court’s judgments because the matter published aims at lowering the authority of the Court as a whole or that of its Judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting the Judges, personally, from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the Court performs its functions. The law permits in respect of Courts, as of other institutions, the fullest discussions of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the Courts may be established and maintained. The necessity of maintaining the authority of this Court against such attacks is, perhaps, even greater than in the case of Courts under a unitary system of government. It is the constantly recurring task of this Court to decide upon the validity of the enactments of one or other of the seven Governments of Australia. Thus the Court occupies a position which makes any tendency to weaken its authority a matter of especial concern.” Yes, the Learned judges surely had the power to punish and sentence junior Bushan, but was it necessary or worth it?
The Canadian law of contempt can be summarised succinctly in the words of Justice Morrison: “It was a wise judge who said, My duty as a Judge is to administer the law as I find it, but if I am at liberty to express any personal opinion upon the expediency of exercising the power of the Court to summarily punish contempts of court not committed in its presence, and not calculated to obstruct the course of justice, but by the publication of libellous matter unfairly criticising or impugning the action of the Court or imputing impure or corrupt motives to its members, I would venture to say that in such cases the exercise of this arbitrary power would be a questionable remedy, either for maintaining respect for the Court itself or vindicating the characters of its members.” (R v. Wilkinson-1877).
And, in more forceful language, Mr. Justice Black of the United State Supreme Court was expressing a truism not restricted to his own country when he pointed out that, “The assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions. And an enforced silence, however limited, solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt, much more than it would enhance respect.” ( Times-Mirror Co v Superior Court-1942).
Lord Rusell of 1900 vintage in R v. Gray. “Any act done or writing published calculated to bring a court or a judge of the court into contempt, or to lower his authority, is a contempt of court. That is one class of contempt. Further, any act done or writing published calculated to obstruct or interfere with the due course of justice or the lawful process of the courts is a contempt of court. The former class belongs to the category which Lord Hardwicke LC characterised as ‘scandalising a court or a judge’. That description of that class of contempt is to be taken subject to one and an important qualification. Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no court could or would treat that as contempt of court.” One surely expected the top court to rise and rise and exhibit its grace and magnanimity, even if the contemner was unlikely to apologise, which it has done, but with a tricky rider, fitting the bill.
Justice Felix Frankfurter said, “‘Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”
That man for all seasons, Justice V R Krishna Iyer, called for an Appointments Commission, much like the one in the United Kingdom, for the very reason that the role of the Judges must be accountable including for their irrational exuberance to indulge in the power of contempt. Read. “The judicature is a noble and never a nocent institution. If you goofily debunk and unjustly bring the judiciary into disrepute, you judges commit contempt and get punished. The court is a magnanimous institution, majestic and glorious, and it sustains the confidence of the nation.”
Lord Denning in his Family Story has recorded what Lord Shawcross said about one of his judgments: “Denning is an Ass.” The Times (of London) published this. In spite of it, Lord Denning declined to take contempt action since he took the view that he would disprove it not by contempt proceedings but by means of his performance. Of course, he was the best judge of the Commonwealth. This is an example for judges in India, too. “ The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance. Of course, rare cases may deserve contempt impeachment. Bad judges deserve to be censured by a Performance Commission with access to every citizen. How many judges in our High Courts are good by the canon laid down by Douglas? He wrote: “…The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate”, Justice Krishna Iyer mused. Prashant Bhushan tweets’ were of the rare genre in its colour and tenor.
The Supreme Court has taken the glorious opportunity with both hands, or three pairs of hands, to demonstrate that it was and not ‘so sensitive to the winds of opinion’ as a tweet or two, but it did need to punish/sentence the tweeter, for he was a senior and serious serial offender, to “protect the institution”. The institution is too big to be impacted, over such trifling, irresponsible and contemptible tweets. The Justices have shrewdly yielded to this instinct, by imposing the Re.1.- fine and adroitly turning the tables on Prashant Bhushan and his cheerleaders by placing the ball in his/their court. As Mahatma Gandhi may have said Mr. Prashant Bhushan, ‘Heed the call of your conscience not prestige’, if you have one.
(Narasimhan Vijayaraghavan- Author is practising advocate in the Madras High Court)
