Supreme Court, Prashant Bhushan and the Sentence Conundrum

How is a convicted contemnor to properly address himself on the sentence without knowing what it is?

As any criminal lawyer will tell you, Section 235 of our Criminal Procedure Code mandates that after conviction, the accused must be heard on the question of sentence.

This hearing, the Supreme Court said in 2019, must be a “real, effective and meaningful opportunity to bring on record materials showing mitigating circumstances”. All convicts across the Republic are therefore given such a statutory right to demonstrate evidence to distance themselves from harsh penalties.

Consider the most commonly bandied about punishment that we are exposed to courtesy Hindi cinema – dafa teen sau do – hearing which the heroine breaks down crying in the first row while the villain at the back overacts to show how truly evil he is.

Section 302 of the Indian Penal Code offers two unpalatable options – death, or imprisonment for life. It also threatens an accompanying fine, which we can all agree is somewhat insulting. Now when the convict’s lawyer gets up to argue, he has a clear idea of what he must do: avoid the noose. So, he presents his client as virtuous, young, reformed, family-oriented, kind to animals and so on, hoping that the court might consider deprivation from society rather than from the world.

Also read: ‘Have Right to File Review Petition’: Prashant Bhushan Seeks Deferment of SC Sentence Hearing

In all of this, what the convict, the prosecution and the court are aware of is the likely sentence. Because it is in the book. So, there is no difficulty in addressing arguments on sentence.

The first specific flaw: The types of punishments

However, when it comes to a determination of criminal contempt by the Supreme Court, the pitch is decidedly queer.

Take Prashant Bhushan for instance, who stands convicted last week of criminal contempt. He would imagine that the sentence would be the one prescribed by Section 12 of the Contempt of Courts Act – simple imprisonment up to six months and/or a fine of up to Rs 2,000.

But hark, what have we here? Bhushan is a practising advocate. Of the Supreme Court.

What difference should that make, you say. He is a contemnor in the eyes of the law, and whether he is a telecom operator or a hairdresser should make no difference.

Unfortunately, the Supreme Court itself has taken a different view when it comes to us advocates. In December 2002, the Constitution Bench handed down a verdict in Harish Uppal v. Union of India where it frowned on lawyers’ strikes and then proceeded to conclude that under Article 145, the Supreme Court alone can regulate the practise of advocates before it. From the pen of Justice Variava speaking for the Bench, the following words flowed:

“Let the Bar take note that unless self-restraint is exercised, courts may now have to consider framing specific rules debarring advocates guilty of contempt and/or unprofessional or unbecoming conduct, from appearing before the courts…The very sight of an advocate, who is guilty of contempt of court or of unbecoming or unprofessional conduct, standing in the court would erode the dignity of the court and even corrode its majesty besides impairing the confidence of the public in the efficacy of the institution of the courts.”

Two things transpired after this judgement.

First, after 50 years of being in limbo, Section 30 of the Advocates Act was notified in June 2011, thereby allowing all advocates to practise as of right before the Supreme Court.

Second, despite no rules as envisaged by the 2002 judgement being framed, the Supreme Court has at least once forbidden a lawyer who has been convicted of criminal contempt from practising before it.

Also read: US Democracy Survives Even When POTUS Attacks SCOTUS But India Can’t Handle Prashant Bhushan

On March 27, 2019, one Mathews Nedumpara was barred for a period of one year, thereby adding a third type of punishment to the ones already stipulated in Section 12. This punishment would be squarely in the teeth of the legal right afforded by Section 30 of the Advocates Act.   

The second specific flaw: The inherent inconsistency

It would be fruitful to recall the view of another Constitution Bench from 1998 in the Supreme Court Bar Association case. There, on a plea by the members of the Bar, the apex court corrected its earlier view that it could strike contemptuous lawyers from the rolls of the Bar Council, by saying:

“Suspending the licence to practise of any professional like a lawyer, doctor, chartered accountant etc. when such a professional is found guilty of committing contempt of court, for any specified period, is not a recognised or accepted punishment which a court of record either under the common law or under the statutory law can impose on a contemnor in addition to any of the other recognised punishments.”

How then can members of the Bar be barred from their practise in exercise of the summary contempt power?

Such an endeavour would pit the fundamental right under Article 19(1)(g) directly against the exercise of contempt jurisdiction under Article 129 of the constitution. In fact, there is another piece of advice that the court gave itself:

“As already noticed, Parliament by virtue of Entry 77 List I is competent to enact a law relating to the powers of the Supreme Court with regard to contempt of itself and such a law may prescribe the nature of punishment which may be imposed on a contemnor by virtue of the provisions of Article 129 read with Article 142(2). Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme Court.”

If the “nature of punishment” were to be a guide for the Supreme Court, then could the court probably ignore its own counsel (not to mention Parliamentary law and the Constitution) and evolve other means of sanction?     

Also read: Truth as Defence is Central to Prashant Bhushan Sentencing, Supreme Court Can’t Sidestep It

The consequence: One confused contemnor

So, what is a convicted contemnor to do? How does he know what the proposed sentence is against which he can proffer arguments?

It could be the two options in the 1971 Act, or it could have in addition anything else that catches a judge’s fancy as appropriate to curb the delinquent’s misadventures. In Bhushan’s case, this could range from directing Twitter to close his account to depriving him of mobile devices for a year and even barring him from practice a la Nedumpara.

The Supreme Court’s inconsistent approach to criminal contempt now raises serious questions of natural justice: how is a convicted contemnor to properly address himself on the sentence without knowing what it is?

Notwithstanding Bhushan’s own position on the proceedings, the Supreme Court owes itself an obligation to ensure that justice is seen to be done.

Gopal Sankaranarayanan is senior advocate, Supreme Court of India.