“By showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of ₹1 (Rupee one),” a three-judge Bench led by Justice Arun Mishra ordered.
The court said an “appropriate sentence” and not a mere warning was required as Mr. Bhushan had showed an “unjustifiable insistence” to not express reg ret. He showed no remorse for causing harm to an institution which he belongs to.
“Lawyers are supposed to be fearlessly independent and robust but at the same time respectful to the institution,” Justice Mishra, who authored the 82-page sentencing judgment, observed.
Mr. Bhushan was convicted on August 14 in a suo motu contempt action for his tweet of a picture of the Chief Justice of India astride a high-end bike while the court was in “lockdown” and another about the functioning of the court in the past six years.
He followed this up by filing an over 100-page reply in his defence, criticising the court of “surrendering to a majoritarian executive acting in tyranny”. He went on to “cast aspersions on the entire justice delivery system and a large number of judges” along with remarks about the Ayodhya verdict, among others.
When asked to apologise, he issued two statements, in one of which he said he neither asked for the magnanimity or mercy of the court but would “cheerfully” submit to any punishment.
He had refused the advice of Attorney General K.K. Venugopal to express regret and take this reply off the record.
“When the senior-most functionary in the legal profession of the stature of Attorney General was giving an advice to express regret and withdraw the wild allegations, a lawyer of such a long standing was expected to give due respect to it. Even our request made to him has gone in vain. Thus, we feel that the simple issuance of warning is not going to suffice in the instant case,” Justice Mishra said.
The court ordered him to pay the fine by September 15, failing which he would, by default, undergo a simple imprisonment of three months and a ban from practising in the apex court for three years.
Mr. Bhushan issued a press statement later in the day that he reserves his right to file a review but will pay the fine to an institution he holds in high esteem.
The court said it was up to the apex lawyers’ body, Bar Council of India, to “suspend the enrolment” of a lawyer convicted of contempt, that is, “if it so desires”.
The court said the conduct of the lawyer exuded “adamance and ego” which has no place in the justice delivery system and a noble profession.
Justice Mishra explained the court cannot just “retaliate” with the full brunt of its contempt powers merely because Mr. Bhushan, quoting Mahatma Gandhi, invoked neither its magnanimity nor mercy. It reminded that it had given several opportunities for the lawyer to apologise and “save the grace of the institution as well as the individual”.
“Fair criticism of the system is welcome. Judges cannot be hyper-sensitive even when distortions and criticism overstep the limit. However, the same cannot be stretched to permit to make malicious and scandalous statement. The Court has to act only in the case where the attack is beyond a permissible limit. The strong arm of the law strikes a blow on him who challenges the supremacy of the rule of law by fouling its source and stream,” the judgment said.
The court dismissed the lawyer’s plea of “truth as a defence”. It said truth is a defence only if remarks are bona fide and made in public interest.
Though the tweets were two-liners each, the reply filed by Mr. Bhushan in his own defence contained “reckless allegations”, which only served to aggravate the contempt.
The Bench, also comprising Justices B.R. Gavai and Krishna Murari, said free speech cannot be used to scandalise the institution. Unlike fair criticism based on authentic material, attributing motives to judges, who cannot resort to a public platform to clear their names, amounted to contempt and cannot be ignored.
“When criticism tends to create apprehension in the minds of the people regarding integrity, ability and fairness of the judge, it amounts to contempt and not protected under free speech,” Justice Mishra noted.
It said judicial ethics prevents a judge from defending himself against attacks on public platforms. “Judges have to be the silent sufferers of such allegations,” Justice Mishra said.
Lawyers have to protect the right to live with dignity of judges against malicious and scurrillous attacks in the media, which jinx their objectivity and fearlessness.
The court turned the submission made by senior advocate Rajeev Dhavan to consider Mr. Bhushan's long career as a civil rights lawyer on its head, saying “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”.
On the deluge of opinions which was published in favour of Mr. Bhushan during the contempt case, the court said “judicial decision cannot be influenced by the opinions expressed in the media. Judges should be impartial towards friends and foes”.
In fact, the judgment said, opinions from judges and journalists and others, while a case is sub judice, runs a “substantial risk of serious prejudice... Comments which are intended or even likely to influence a judge necessarily amount to a contempt”.
The court said Mr. Bhushan’s action to release his statements to the media showed impropriety and interference with judicial process.
The court denied the accusation that it had “coerced” Mr. Bhushan to apologise in its order of August 20.
“We have not coerced the contemnor (Bhushan) to submit the apology and have clearly mentioned that time was given to submit unconditional apology, ‘if he so desires’. It was his decision to submit it or not,” Justice Mishra clarified.