Contempt Sentencing Did Not Take Into Account Precedent: Prashant Bhushan's Review Petition

Bhushan’s response to Bar Council of Delhi explains why it is wrong to have initiated proceedings against him for professional misconduct on the basis of the Supreme Court’s judgment.

Even as the Supreme Court is yet to list for hearing Prashant Bhushan’s review petition against his conviction for contempt of court, he has filed another review petition on Thursday against his sentencing on August 31. According to the sentencing judgment, Bhushan had to pay a fine of Re 1, in default of which he had to undergo three months’ imprisonment apart from suffering a bar on appearing before the Supreme Court for three years.

Although Bhushan has paid the fine of Re 1 to the Supreme Court, he reserved his right to file review petitions separately against his conviction and sentencing judgments.

In his latest review petition, Bhushan has first pointed out that at no point during the judicial proceedings the Supreme Court even slightly indicated that it was contemplating disbarring him from appearing before the Supreme Court. This, he claimed, is inconsistent with the law laid down by a three-judge bench in R.K. Anand v Registrar, Delhi High Court (2009). In this judgment, the Supreme Court had held that before passing an order debarring an advocate from appearing in courts he must be clearly told that his alleged conduct or actions are such that if found guilty he might be debarred  from appearing in courts for a specific period. This warning, the court had held, may be given in the initial notice of contempt, or after the accused is held guilty of criminal contempt before dealing with the question of punishment.

Being a coordinate bench, the Justice Arun Mishra (who has since retired on September 2) bench – also comprising Justices B.R. Gavai and Krishna Murari – was bound by the Supreme Court’s previous ruling in R.K. Anand. Although the question of debarring Bhushan from appearing before the court would have arisen only in the event of his non-payment of fine of Re 1, the absence of natural justice in the sentencing judgment is clearly writ large in the manner he was threatened with debarring if he failed to pay the fine. This, Bhushan has claimed, renders the sentencing judgment per incuriam.

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Second, Bhushan contends that the Supreme Court convicted and sentenced him for contempt of court based on his “preliminary reply” to the notice issued to him. As he sought a copy of the petition filed by Mehak Maheshwari, which was converted as the suo motu contempt petition by the court, Bhushan claimed that the court’s denial of his plea amounted to denial of opportunity to lead evidence, which explicitly contravenes the Contempt of Courts Act, 1971.

Third, Bhushan has alleged that the court has denied him the opportunity to plead truth as a defence before sentencing him for contempt of court. During the proceedings, the bench had sought to blame Bhushan’s counsel for not reading Bhushan’s reply fully for this lapse. Bhushan, on the contrary, has claimed that his counsel, Rajeev Dhavan, read from his reply indicatively, and left it to the court to examine its particulars due to the sensitive nature of the averments contained therein.

Fourth, Bhushan has submitted that the judicial power and discretion to impose punishment for contempt of court should be strictly in terms of Section 12 of the Contempt of Courts Act. In his case, however, the court has ignored Section 30 of the Code of Criminal Procedure, 1973 which sets an upper limit on the proportion of a sentence of imprisonment statutorily provided for which can be imposed in default of a fine. According to this provision, imprisonment in default of payment of the fine cannot exceed one-fourth of the term of imprisonment which can be inflicted for the offence. Under the Contempt of Courts Act, the maximum period of imprisonment that can be imposed on a contemnor is six months. One-fourth of this would be 1.5 months’ imprisonment. But Bhushan was visited with three months’ imprisonment in lieu of payment of fine.

Fifth, Bhushan contends that the court has found his reply to the notice as aggravating the offence.  This, he says, amounts to a fresh conviction and violates the constitutional protection against double jeopardy contained in Article 20(2) of the Constitution. Insofar as this additional conviction is arrived at on facts not specifically put to the accused and not tried, it deserves to be treated as a violation of the right to fair trial guaranteed under Articles 14 and 21, he has submitted.

Sixth, Bhushan drew attention to Paragraph 28 of the sentencing judgment in which the court found that entering into the question of truth would itself be derogatory to the reputation of the Supreme Court and would amount to further scandalising and bringing administration of justice in disrepute. According to him, this stand of the court is clearly inconsistent with Section 13(b) of the Contempt of Courts Act, under which truth, accompanied by bona fides and regard for public interest, would be a complete defence.

Seventh, Bhushan has drawn attention to the bench’s indictment of the four judges who held a press conference on January 12, 2018, in protest against the then Chief Justice of India, Dipak Misra’s role as the Master of the Roster. “We hope it was the first and the last occasion that the judges have gone to press, and God gives wisdom to protect its dignity by internal mechanism, particularly, when allegations made, if any, publicly cannot be met by sufferer judges. It would cause suffering to them till eternity. Truth can be the defence to the judges also, but they are bound by their judicial norms, ethics and code of conduct,” the bench had stated in its judgment.

Also read: Prashant Bhushan’s Review Petition in SC Reveals Errors Apparent in His Contempt Conviction

According to Bhushan, the bench missed the point whether a reasonable person on the basis of the statement of the four seniormost judges of the Supreme Court and other circumstances averred to in his reply could have formed a bonafide opinion about the functioning of the court, and express it under Article 19(1)(a).

Eighth, Bhushan has taken objection to the bench’s considering his post-judgment conduct of speaking to the media as factors weighing against him.   If such conduct was further aggravating the offence of contempt, why the bench didn’t issue notice to him, and give him an opportunity to defend himself, he asked.

Bhushan has pointed out that except in camera proceedings, and in the case of minor or rape victims (where the law requires anonymisation of their names), there is no foundation for treating pleadings filed before this court as being secret or embargoed from public access. Doing so would be incompatible with every known precept of open justice and the rule of law, he has asserted. Deprecating, without qualification, the practice of the free press reporting on the contents of pleadings goes against the precepts of open justice and independent media, Bhushan has claimed. Cases involving criminal contempt by publication, particularly those raising questions over the manner in which the institution functions, demand and justify maximal transparency, he has asserted.

Relying on the Supreme Court’s recent judgment in the review case seeking right of women to worship at Sabarimala temple, wherein the court has referred to a larger bench a set of questions for “authoritative pronouncement” (Kantaru Rajeevaru v Indian Young Lawyers Association), Bhushan has urged the Supreme Court to seek answers by a larger bench to three questions which he has posed in his review petition. These are: a. whether the power under Article 129 is subject to the rigours of Part III of the Constitution; b. whether a summary procedure in cases of criminal contempt which is not ex facie curiae is compatible with Part III of the Constitution; and c. whether a right to an intra-court appeal is necessary in interest of public confidence and the fundamental rights of accused persons because the suo motu proceedings for contempt of a constitutional court envisage the role of the court both as aggrieved and as adjudicator.

Bhushan’s reply to Bar Council

Bhushan’s review petition against the Supreme Court’s sentencing judgment in the contempt case coincides his reply to the Bar Council of Delhi, which has issued a notice to him in the wake of his sentencing, asking why disciplinary proceedings ought not to be initiated against him for professional misconduct, because of the two tweets that he had made which were critical of the functioning of the judiciary.

After requesting the Bar Council to either drop the proceedings against him or put it on hold till his review petitions against his conviction and sentencing are decided by the Supreme Court, Bhushan has submitted his response to the notice.

Bhushan has drawn Bar Council’s attention to the fact that the Bar Councils are completely independent of the government as well as the judiciary, so that they can protect the dignity, freedom and independence of the Bar.  He has submitted that the Bar Council should stand in solidarity with the rights of the members of the legal profession, and not take cognisance of the judgment of  Supreme Court which has constricted and abridged the freedom, rights and dignity of the members of the Bar and ordinary citizens.

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Besides, Bhushan has asserted that the two tweets which he had posted and were arraigned in the contempt proceedings against him, are within the limits of freedom of expression of a member of the Bar. The Supreme Court’s judgment holding him guilty, after disregarding his defence of truth, is fundamentally flawed, and an assault on free speech, he has said. The judgment not only criminalises criticism of the functioning of the judiciary, but will have a chilling effect on the right of lawyers and citizens to voice their opinion, he told the Bar Council.

Bhushan has also reminded the Bar Council that it is not bound by the judgment of the Supreme Court holding him guilty, and that it has to form its own independent opinion as to whether his two tweets amount to professional misconduct. Merely because the Supreme Court has found his two tweets contemptuous, it would not necessarily follow that the same also constitute “professional or other misconduct”, he has written in his response.

Bhushan has drawn attention to the Bar Council of India Rules made under Section 49(1)(c) of the  Advocates Act 1961 which say that is the duty of the advocate to not be servile to the Court and conduct himself with dignity and self-respect.    They further provide that it is the duty of the advocate to raise his voice against improper conduct by any judicial officer, he has pointed out.

Referring to his two tweets, Bhushan reminded the Bar Council that the Supreme Court itself has admitted that the limited functioning of the courts due to COVID-19 has left little access to justice, besides depriving a sizeable section of the legal profession of income and, therefore, livelihood.

The Bar Council of Delhi has specifically invoked Sections 24A and 35 of the Advocates Act, 1961, to initiate action against Bhushan.  While Section 24A prohibits enrolment of a person, convicted for an offence involving moral turpitude, Section 35 empowers Bar Council to initiate disciplinary proceedings against an advocate who has committed serious professional misconduct.

Bhushan has responded asking how his posting of the two tweets could be interpreted as an offence involving moral turpitude, as understood by Section 24A. Reiterating that the tweets reflected his bona fide belief held by him as a responsible citizen of the country about the state of affairs prevalent in the country, he claimed that he did not cause any interference with the administration of justice.

On professional misconduct, Bhushan’s response is that according to the case law, the test has to be whether his action has brought disrepute or dishonour to the legal profession and is perceived as such by his brothers and sisters at the Bar.  On the contrary, Bhushan has referred to the groundswell of support and solidarity which he has received from fellow lawyers and retired judges to his two tweets.

More important, Bhushan has underlined the absence of any reference to the Bar Council in the Supreme Court’s sentencing judgment, for the purpose of initiating proceedings against him for professional misconduct, thus questioning Bar Council’s intervention citing the judgment.