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A Case of Contempt, Lack of Apology and Judgment

The SC ruling on Prashant Bhushan mentions the Attorney General 41 times, “apology” and “apologising” 38 times, and Mahatma Gandhi thrice.
A Case of Contempt

For a lay citizen, reading the 82 pages of the judgment sentencing Prashant Bhushan to a one-rupee fine is amusing. A senior advocate in the Supreme Court and I discussed it at length just before it was pronounced. “Looks like there is going to be a 50-rupee penalty to satisfy the hubris of the bench,” my friend speculated, “Nothing more!”

He wasn’t off-centre.

“It’ll be true judicial statesmanship,” I had told him, “If to bring sobriety and quietus to the case, the bench, instead of penalising, no matter how less, swallows its pride and proffers a sincere apology to Bhushan by recalling the judgment of 14 August for having gone overboard.”

But I also knew that I was being overly optimistic. I added, en passant, that the judgment would lean heavily on the Attorney General’s statements to get out of the knot the bench has tied itself into. The words of the first law officer would be leveraged to wriggle out of an unenviable and intractable position which the whole nation was watching, pigeon-eyed. And here it is, except the penalty is fifty times less!

The judgment does indeed speak through the Attorney General’s words, who is mentioned 41 times in it. “Apology” and “apologising” come a close second, getting 38 mentions. Gandhi got in a mere three times, and then not with reference to Bhushan becoming a Mahatma if he apologises, as a judge said in the last hearing. Nor is there any allusion to the spectre of “contempt of court” vs. “contempt of conscience” that Bhushan had raised.

The judgment fulminates at how Bhushan had challenged the obiter dicta of the last hearing. To wit: “Virtual exchange during the course of the proceedings is not what is the order of the court but it could be a tentative expression of that exchange during the course of hearing.”

Bhushan had said after the 24 August hearing that the court had asked him to take two or three days to reconsider his statement in the court. This statement has been pitted against the words of the judgement itself: “We have given time to the contemnor to submit [an] unconditional apology, if he so desires.” And, a little later, “We have not coerced the contemnor to submit the apology and have clearly mentioned that time was given to submit unconditional apology ‘if he so desires’.”

First up, the judgment selectively uses obiter dicta and court exchanges based on convenience. For example, paragraph 87 of the judgment reads, “Learned Attorney General also submitted that in Arundhati Roy’s case, it was held that ‘our shoulders are broad enough to shrug off comments against it.’ No doubt about it, our approach has to be like one stated by the learned Attorney General. In spite of learned Attorney General appealing that it was not too late for the contemnor to express regret as he did in the other case… but that was virtually declined flatly by senior counsel Dr Dhavan, learned senior counsel, in the presence of the contemnor.” The judgement also says, “When [the] senior-most functionary in the legal profession… The learned Attorney General was giving 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.”

The point is, what was the court’s “request” to Bhushan? The earlier judgement says he must “submit [an] unconditional apology, if he so desires.” This apology was a “request” from the bench and the Attorney General. And the lack of such an apology has now prompted the bench to decide that a “simple issuance of warning is not going to suffice in the instant case.” Indeed, the court says it wanted to end this matter by persuading the contemnor into “tendering an apology and saving the grace of the institution as well as the individual, who is an officer of the court.”

So an apology was asked for, persuaded, and coerced, and if there is one haunting spirit that suffuses the soul of the latest judgment, it is the apology that was not forthcoming.

Dhavan had already submitted that “in case the contemnor is sent to imprisonment, he will attain martyrdom”. Yet para 89 of yesterday’s judgment is full of vibrant expressions: “We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from practice. His conduct reflects adamance and ego… and no remorse is shown for the harm done to the institution to which he belongs. At the same time, we cannot retaliate merely because the contemnor has made a statement that he is neither invoking the magnanimity or the mercy of this Court and he is ready to submit to the penalty that can lawfully be inflicted upon him…”

So, finally, the court concludes that being the patron of both the dignity of the institution and its catholicity, it must “…take cognizance of such conduct [or] it will give a wrong message to the lawyers and litigants throughout the country. However, by showing magnanimity, instead of imposing any severe punishment, we are sentencing the contemnor with a nominal fine of Re.1 (Rupee one).”

Now let us revert to the issue of “contempt of court vs. contempt of conscience” referred to earlier. There is no reference to it in the judgment, though Bhushan had expressly referred to it in his statement of 24 August. While people’s consciences can differ—as it often does—it was imperative for the court to go into this aspect to see how the ostensible incongruence between the two can be resolved. Mahatma Gandhi, whom Bhushan has quoted, stood on moral grounds, animated by what he considered the “highest duty of a citizen”. So did Bhushan, as per extensive media reports on Dhavan’s arguments during the hearing. This is where the high emphasis in the judgment on the Attorney General’s views—which Bhushan did not heed—matters. The Attorney General is surely erudite and a legal luminary, but he too is human, and like all humans, fallible. His fallibility was seen not long ago when during the Rafale hearing he dubbed the defence ministry’s documents published in The Hindu as “stolen”, which on a subsequent hearing he admitted were actually “unauthorised photocopies.” His advice was not heeded by Bhushan presumably because the latter did not deem it correct.

By the same token, the judges’ advice did not seem to have carried any conviction with Bhushan. With 35 years of lawyering and intense involvement in public interest litigations, he relied on his inner voice, an internal moral compass, to decide what he thinks is morally valid. The over-emphasis on the unsolicited advice in the judgment is completely out of sync with the issue in question. The judgment is therefore no solace. It is the hubbub raised by retired Supreme Court and High Court judges, enlightened citizens and civil society that has helped tamp down what would otherwise have chilled the lawyers, the citizens and society.

I can do no better than quote Navroz Seervai from his anguished piece, on the 14 August ruling: “As I read and reread this judgment with growing amazement, another aspect of the matter intruded itself upon me, namely the intemperate language used against Bhushan, and the inappropriate choice of words used in the judgment. The judgment states: ‘An attempt to shake the very foundation of constitutional democracy has to be dealt with an iron hand.’ This language, surely, is more suited to the strong man or dictator ‘ruling with an iron hand’, rather than to judges administering justice in a ‘constitutional democracy’.

The muscular language, though attenuated in the latest judgment, is still not hard to palpate. For example: “We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance and ego…”

On the whole, the judgment seems to be a missed opportunity to listen to the wizened counsels of society; to strive for what is pulsing amongst citizens and set things right. The noise emanating from it sounds Trumpian, with imagery of cumulative rage and fury against Bhushan, a marathon champion of citizen’s rights who has asked awkward but pertinent questions, and who willingly expressed regrets for that aspect of his controversy-generating tweets that were factually incorrect. The words in the judgment are not bracing statements of wisdom from the highest court, which citizens look up to for justice done and seen to be done. The gravitas and sagacity are missing, diminishing the force of the arguments. It is immensely sad that the judgment does not ennoble us at all.

The author is a former civil servant. The views are personal.

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