New Delhi: The Supreme Court’s hearing on Thursday on sentencing Prashant Bhushan – convicted last week for contempt of court for two tweets – makes one wonder whether the bench is more eager than the contemnor to avoid the sentence. With Bhushan ruling out reconsidering his resolve not to apologise for the tweets, the bench’s offer to give him a few days’ time to rethink suggests the three judges – Justices Arun Mishra, B.R. Gavai, and Krishna Murari – are reluctant to sentence him, till it exhausts all the available options.
Truth as defence
During the hearing, the bench wanted counsel to address the court on Bhushan’s sentence rather than reopen the arguments on merit, as it has already found him guilty. But Bhushan’s counsel and Attorney General for India K.K. Venugopal – who also opposed Bhushan’s sentencing – found it impossible to separate the absence of merits in convicting Bhushan from the question of sentencing.
No doubt, the bench has found Bhushan guilty of contempt, exercising its inherent powers under Article 129 read with Article 142 of the constitution. But to punish Bhushan, it has to invoke the provisions of the Contempt of Courts Act, 1971. On Thursday, the counsel defending Bhushan and the AG, in his official capacity rather than as the Central government’s counsel, invoked Section 13 of the Act when they told the bench why Bhushan’s tweets cannot be found contemptuous.
Section 13 of the Act states:
- No court shall impose a sentence under this Act for a contempt of court unless it is satisfied that contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;
- The court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide. [This sub-clause was inserted through an amendment in 2006].
Section 13 of the Act deals with contempt not punishable in certain cases. Therefore, it can be invoked only at the time of sentencing the contemnors, and not earlier. What it implies is that the court found Bhushan guilty of contempt of court without hearing any arguments on the truth of the “contemptuous” statements he made in his two tweets.
Also, the bench at the conviction stage, might not have satisfied itself that Bhushan’s tweets could substantially interfere with the due course of justice, as it is not a prerequisite to hold one guilty of contempt of court. That is why it is open for the counsel to make submissions on this ground afresh during the sentence hearing.
The bench reminded the counsel on Thursday that it was not a review proceeding, and it had already found Bhushan guilty. Whether the August 14 judgment was right or wrong, the bench was not willing to examine the issue in the proceedings meant for sentencing Bhushan.
The bench was reluctant to oblige the counsel, inclined to invoke Section 13, because even if the court permits such a defence, and if such a defence is sustained, it would have contradicted its own conclusion that Bhushan was guilty. But the Act clearly envisages that a person could be held guilty of the offence, but still left unpunished if the ingredients of Section 13 are satisfied.
The bench clearly assumes that Bhushan’s tweets substantially interfered with the due course of justice, though it was not under an obligation to explain this in its August 14 judgment convicting him. Therefore, the bench ought to hear Bhushan’s arguments – even if at the sentencing stage – on why the tweets do not so interfere and give a reasoned order. Not doing so could be considered inconsistent with the principles of natural justice.
Also unstated is the bench’s assumption that Section 13(b) is not relevant here because it found Bhushan guilty of an offence – which he claims he did not commit through his tweets – that is, scandalisation of the judiciary as an institution.
Bhushan has rightly argued that his tweet about the CJI riding the motorcycle amidst the lockdown was in public interest and he tweeted so to express his incongruity, acting in good faith. Bhushan also contends that his tweet about future historians finding the last four Chief Justices of India as having taken part in the destruction of democracy in India is true and has backed it up with facts in his reply affidavit.
If the bench was not impressed with his explanation, this is because it did not answer its assumptions and inferences from the tweets. First, the bench interpreted the tweets not as an attack on the dignity and honour of the individual judges, but as a challenge to the “majesty of the law and the administration of justice” and as an attack to shake the confidence of the public at large in the institution of judiciary. Second, the bench also found the tweets having the potential to demoralize the judges of the Supreme Court through malicious attacks, and to affect the national honour and prestige in the comity of nations.
To be fair to Bhushan, he could not be expected to justify these erroneous assumptions and inferences of the bench by invoking truth as a defence.
Re: Prashant Bhushan is perhaps an illustration of how the 2006 amendment to the Contempt of Courts Act, which provided truth as a defence, could be turned on its head by a court intent on defeating the legislative spirit behind it.
Also, the refusal of the bench to let the AG fully present his views on the merits of the case, after issuing him notice, is inexplicable.
“Five judges of the Supreme Court who have said that democracy has failed in the Supreme Court – which is what Bhushan said in his tweets. Secondly, I have nine judges of the Supreme Court saying that there is corruption in the higher judiciary. Two of them made statements while they chaired (not clear). Seven of them said so immediately after their retirement. I have extracts from all of them. I myself made a speech in 1987 in the Indian Law Institute…” Venugopal said when he was stopped by Justice Mishra.
Under Article 76(3) of the Constitution, the AG, in the performance of his duties, has the right of audience in all courts in India. It is not clear whether the bench will hear him or will pronounce the sentence on August 25.