In SC's Dealings With Prashant Bhushan Over Contempt, Shades of Arundhati Roy's Case

The very objective of the practice of issuing notice, as an instrument to ensure due process of justice, will be defeated if the court were to suggest that the alleged contemner has no option but to apologise to the court on receipt of a notice for contempt. 

New Delhi: On Tuesday, there were two parallel developments in the pending contempt proceedings against activist lawyer, Prashant Bhushan. First, the Supreme Court bench of Justices Arun Mishra, B.R. Gavai and Krishna Murari, which heard the counsel for the parties at length on Tuesday in Amicus Curiae v. Prashant Bhushan and Another has reserved its order on whether to hear the matter.   

The bench noted that the explanation or apology submitted by the contempt-accused Prashant Bhushan and the then Tehelka editor-in-chief, Tarun Tejpal, have not been received so far, and that in case it did not accept the explanation or apology submitted by them, it would proceed to hear the matter. 

Second, the Supreme Court registry rejected the impleadment application filed by 16 civil society activists in the contempt case against Bhushan, citing the Supreme Court’s judgment in the case of Justice C.S. Karnan, in which the court had held that contempt is a matter strictly between the court and the alleged contemnor.

The applicants, through advocate Prasanna S., had stated that expressing opinion about functioning of the judiciary or any other public institution is a constitutionally guaranteed right.  Initiation of contempt proceedings against Bhushan for his tweets criticising the judiciary has a chilling effect on the right guaranteed under Article 19(1)(a), they contended.  The applicants include activists, Aruna Roy, Anjali Bharadwaj, Nikhil Dey, academics, Jayati Ghosh, Prabhat Patnaik, journalist, P.Sainath, musician, T.M.Krishna and former civil servants Deb Mukharji and Wajahat Habibullah.

Eleven-year-old case

Earlier, the bench, dispensing with the open court hearing of the case, spoke to the counsels for the respondents, Rajeev Dhavan (for Prashant Bhushan) and Kapil Sibal (for Tejpal) over WhatsApp calls. The judges told the counsels that they wanted to put an end to the matter to protect the dignity of the court and of the judges.

Also read: SC Asks Prashant Bhushan For Explanation or Apology in 2009 Contempt Case, Mutes Hearing

They, therefore, asked the parties to issue statements tendering their apologies.  

Prashant Bhushan agreed to issue the following statement, according to his office: 

“In my interview to Tehelka in 2009 I have used the word corruption in a wide sense meaning lack of propriety. I did not mean only financial corruption or deriving any pecuniary advantage. If what I have said caused hurt to any of them or to their families in any way, I regret the same.

I unreservedly state that I support the institution of the judiciary and especially the Supreme Court of which I am a part, and had no intention to lower the prestige of the judiciary in which I have complete faith.

I regret if my interview was misunderstood as doing so, that is, lower the reputation of the judiciary, especially the Supreme Court, which could never have been my intention at all.” 

Tejpal’s statement to the court apparently contained a conditional apology for the offence it had caused the institution of the Supreme Court, as mentioned by Sibal during the hearing.  

The court however reassembled in the afternoon and when Justice Mishra indicated that he might pass an order holding that any statement of corruption in the judiciary would amount to per se contempt, he was told by Dhavan that such a finding could not be and should not be rendered without hearing the parties. 

The earlier discussion over WhatsApp was only regarding whether the proceedings could be dropped in the light of the statements, noted Dhavan. Therefore, Dhavan told the court, if the judges wanted to render any finding on whether the interview amounted to contempt or not, they would have to hear the parties fully, on facts and law. The court then reserved its order.

In his statement on the 11-year old case, Bhushan has claimed that he used the word ‘corruption’ in the interview to the Tehelka magazine to not mean only financial corruption or deriving pecuniary advantage, but in a wide sense meaning lack of propriety. 

But the bench may find that he still did not rule out the allegation of financial corruption or deriving pecuniary advantage against the succession of former CJIs, and opt to hear the matter fully on merits. It is not clear if the bench will accept Bhushan’s statement as a ‘sincere’ apology and close the matter where it stands today. 

Also read: Unnatural Justice and the Prashant Bhushan Contempt Saga

It remains to be seen whether the bench will pick up the threads in the case where it had left it in 2012, when it wanted to hear arguments on whether to refer the case to a five-Judge constitution bench to decide whether Bhushan had a bona fide right to express his views, and whether such expression would constitute contempt of court. 

Eerie similarity to Arundhati Roy case

The hearing of the suo motu contempt case against Prashant Bhushan has been listed as item No.13 before the same bench on Wednesday.

On March 6, 2002, the Supreme Court bench of justices G.B. Pattanaik and R.P. Sethi held Booker Prize winner Arundhati Roy guilty of criminal contempt of the court and sentenced her to simple imprisonment for one day and imposed a fine of Rs 2,000. a In case she failed to pay the fine, she was ordered to undergo simple imprisonment for three months.   

Arundhati Roy was in Delhi’s Tihar jail from March 6, 2002 afternoon until the noon of March 7, 2002 and paid the fine. She  accepted the verdict as a price she had to pay for sticking to her perception about the court’s attitude towards the contempt proceedings against her. 

The court was offended by her reply affidavit questioning its action in issuing a notice against her on the basis of a petition that the court itself found procedurally flawed and substantively baseless. To many, in holding Roy guilty of contempt, the court seemed to have only vindicated the contents of her affidavit.  

The March 6, 2002  judgment punished Roy for having criticised the judgment given by Justices Pattanaik and Ruma Pal on August 28, 2001 on another contempt case against her. The bench held that the notice was issued to her not for having attributed motives to a particular judge but for imputing motives to the Court in general as if the judiciary was carrying out a personal vendetta against her.

A petition filed by five lawyers had alleged that Arundhati Roy, Prashant Bhushan and Narmada Bachao Andolan (NBA) leader Medha Patkar shouted abusive slogans against the court during a protest demonstration by the NBA outside the court premises on December 13, 2000.  

Justices Pattanaik and Ruma Pal dismissed the charges against the three but found Arundhati Roy prima facie guilty of contempt of court for having made certain “derogatory” averments in her affidavit.  

Roy had inferred in her affidavit that the notice indicated “a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it.”  

“By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm,” she had written in her reply affidavit to the first notice. 

In her affidavit, Arundhati Roy, who appeared in person without the assistance of a lawyer, expressed her distress that the court had thought it fit to entertain the petition and issue notice directing her and other respondents to appear personally before it on April 23 and continue to attend the court on all the days thereafter to which the case would be posted, until the final orders were passed. 

File photo of writer Arundhati Roy speaking during a press conference against the arrests of activists at the Press Club of India. Credit: PTI

She wondered whether these enforced court appearances meant that in effect the punishment for the uncommitted crime had already begun. The court subsequently dispensed with the need for personal appearance of the respondents until further orders. “The lies, the looseness, the ludicrousness of the charges display more contempt for the apex court than any of the offences allegedly committed by Prashant Bhushan, Medha Patkar and myself,” she said in the affidavit.

“The charges made in the petition against the contemnors have been denied by them, and might not turn out to be contemptuous, but the tone and tenor of the averments made by them in the replies seemed to be objectionable,” the judges said in their order. 

The court issued a suo motu notice to Roy, based on her reply to the first notice based on a lawyer’s petition, which it had dismissed.   In response to the notice in the suo motu case, Roy filed an affidavit denying that she had attributed any improper motive to any particular judge and refuting the allegation that she had scandalised the authority of the judiciary.   The suo motu notice was issued on the basis of a misreading of her first affidavit, she said.  

She claimed  she could not change her impressions about the court because the court had neither ordered an inquiry into the functioning of the registry to find out how a grossly defective petition against her was admitted, nor taken action against the petitioners for filing a false case.  

Justices Pattanaik and Sethi said she committed the offence of criminal contempt of the court by scandalising its authority with mala fide intentions, and had not shown any repentance or remorse. She persistently and consistently tried to justify her action which, prima facie, was contemptuous of the court, the bench ruled. 

The judges in that case did not address her grievance about the court’s failure to order an inquiry into the role of the registry and to take action against the petitioners.  

The judges cited two factors to justify their order: she drifted away from the path on which she was traversing by contributing to art and literature. Secondly, they said she had resorted to legal tactics and pretences to frustrate the present proceedings against her. How these factors had any bearing on her conviction for criminal contempt of contempt is unclear.

The very objective of the practice of issuing notice, as an instrument to ensure due process of justice, will be defeated if the court were to suggest that the alleged contemner has no option but to apologise to the court on receipt of a notice for contempt. 

Yet, in the Arundhati Roy case, this is what happened when she used her opportunity to defend herself, she was held guilty for not showing any sense of remorse or for consistently choosing to justify her action. 

The bench in that case also drew a rather unconvincing distinction between criticism of the court in general, and its criticism in a pending case before it. The bench stated that the parties to a case could not exercise the freedom and privilege to criticise the proceedings during the pendency of the case.

Rather than substantiate its charge that Roy had malafide intentions in criticising the court, the bench observed: “She wanted to become a champion to the cause of the writers by asserting that persons like her can allege anything they desire and accuse any person or institution without any circumspection, limitation or restraint.”

Citing a proposition in law that the law punishes an archer no matter whether his arrow hits or misses the target, the bench concluded: “The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow, resulting in the destruction of rule of law, the expected norm of any civilised society.”

Just as Prashant Bhushan has sought the recusal of Justice Arun Mishra from hearing the case, Arundhati Roy too sought the recusal of Justice Pattanaik from hearing the case involving the second notice to her. Section 14(2) of the Contempt of Courts Act (dealing with the procedure when a case of contempt involves the Supreme Court or a high court) permits an alleged contemner to have the charge against him or her tried by some judge other than the judge or judges in whose presence or hearing the offence is alleged to have been committed. 

But Section 15 of the Act deals with cognisance of criminal contempt in other cases. The bench invoked Section 15 of the Act to make it appear that she had cast aspersions on the entire Court and therefore the benefit of seeking recusal by a judge was not available to her.

This appeared to be a denial of natural justice to her, especially because she moved the application for recusal by Justice Pattanaik on the basis of the August 28, 2001 judgment, delivered by a bench presided by him.