Tuesday, September 1, 2020

magnanimity of Institution comes to the fore in sentencing contemnor Re.1 fine

 

It is a clear case of sentencing fully backed by magnanimity of the great Institution – nothing otherwise as projected ! 

The role of a lawyer is indispensable in the system of delivery of justice. He is bound by the professional ethics and to maintain the high standard. His duty is to the court, to his own client, to the opposite side, and to maintain the respect of opposite party counsel also. 

ஒத்த ரூபா உனக்கு தாரேன் பத்தாட்டியும் எடுத்து தாரேன்

முத்தாரம் நீ ஒன்னு தந்தாக்கா என் முன்னாடி கொஞ்சம் வந்தாக்கா  

Not many would remember this song ! from Bhadrakali, released in 1976 starring Sivakumar, Rani Chandra and Bhavani in the lead roles. Produced and directed by A. C. Tirulokchandar, the film’s  soundtrack and film score were composed by  Illayaraja and had some good hits catapulting Raja into Tamil tinseldom.  This song was sung by  Malaysia Vasudevan  &  S. Janaki

The Rupee Coin value perhaps differs with reference to the time and to the person requiring it – there were times one rupee coin could fetch stomach filling idlies – may not be any longer as today, it is the least of the coinage.  The   1-rupee coin   is hundred paisas [paisa ! – not in vogue any longer !!]. Currently, one rupee coin is the smallest Indian coin in circulation. Since 1992, one Indian rupee coins are minted from stainless steel. Round in shape, the one rupee coins weighs 3.76 grams (58.0 grains), has a diameter of 21.93-millimetre (0.863 in) and thickness of 1.45-millimetre (0.057 in). In independent India, one rupee coins was first minted in 1950. 

   


Senior lawyer Prashant Bhushan on Monday said that he “gracefully” accepted the Supreme Court verdict in the contempt case and added that the Re 1 fine levied on him was contributed by lawyer and colleague Rajiv Dhavan. Bhushan was found guilty of criminal contempt of court on August 14 over his tweets against the Supreme Court and Chief Justice of India SABobde. “My lawyer & senior colleague Rajiv Dhavan contributed 1 Re immediately after the contempt judgement today which I gratefully accepted,” Bhushan tweeted. 

What is graceful acceptance ? – the Supreme Court has sentenced the contemnor and imposed a fine – albeit of the lowest value – but perhaps the value be Re 1 or a Crore does not matter.  The Apex Court categorically  adjudged Prashant Bhushan, Advocate, guilty of contempt vide judgment dated 14.08.2020, Dr. Rajeev Dhavan and  Dushyant Dave, learned senior counsel appearing for the contemnor Prashant Bhushan  among their arguments raised that the copy of the petition on the basis of which the suo motu cognizance was taken by the Court with respect to first tweet, filed by  Mahek Maheshwari, was not furnished, in spite of the application having been filed by the contemnor. Thus, it could not be ascertained whether the complaint was mala fide or even personally or politically motivated.  It was argued by Dr. Dhavan, learned senior counsel, that in case the contemnor is sent to the imprisonment, he will attain martyrdom, and he also should not be debarred from the practice. He further stated that the Court could not pass an order debarring the contemnor from practicing unless a prior notice was issued to him and an opportunity of hearing was given in that regard.  

A three-judge bench had said in the order that if Bhushan fails to deposit the amount by September 15, he will have to undergo simple imprisonment for three months and will be barred from practising for three years. While finding him guilty in a strongly-worded judgment, the court had said that Bhushan’s tweets were based on distorted facts and have the effect of destabilising the foundation of the judiciary. It added that such conduct was not expected from Bhushan, who is a lawyer of 20 years standing at the Bar. The first tweet for which Bhushan was held guilty, criticised the functioning of the SC in the past six years. He alleged that the historians would mark the role of the apex court in contributing to what Bhushan said will be considered as destruction of democracy.

                      All this happened and has been recorded in the 82 page long judgment of the  Hon’ble Supreme Court of India in Suo Motu Contempt petition CRL no. 1 of 2020.  

The Court came down heavily stating that pursuant to the conviction in a criminal case, the Bar Council of India can suspend the enrolment, if it so desires. It is also open to this Court to debar from practicing in a Court, as held in Supreme Court Bar Association (supra). We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His conduct reflects adamance and ego, which has no place to exist in the system of administration of justice and in noble profession, 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 be lawfully be inflicted upon him for what the Court has determined to be an offence. He has even invoked the Father of the Nation, Mahatma Gandhi’s statement, which was made by Mahatma Gandhi at the conclusion of the trial against him.   

There can be no doubt about the principle that any member of the public has a right to criticize in good faith in private or public, the public act done in the seat of justice. However, the members of the public are required to abstain from imputing improper motives to those taking part in the administration of justice.   Right to fair criticism is contrasted  against acting in malice or attempting to bring down the reputation of the institution of  administration of justice.   We find that even  after recording the judgment of conviction, no remorse has been expressed by the contemnor, nor apology has been submitted.  

The  order specifically states, “We have given time to the contemnor to submit unconditional apology, if he so desires.”   We find that by now it is a settled position of law that the Court speaks through its judgments and orders.  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.  However, ultimately what is final is the order of the Court, which has the seal of it.   

The Court has to act only in the case where the attack is beyond a permissible limit, the strong arm of the law strikes a blow on him who challenges the supremacy of the rule of law by fouling its source and stream. We have applied the aforesaid guidelines and standards.    Learned Attorney General submitted that the Court should exhibit magnanimity.   Dr.   Dhavan,   learned   senior   counsel,   invoked   the statesmanship from this Court.  Learned Attorney General stated that if  there is an expression of regret and if the affidavit is withdrawn, perhaps a quietus can be given to the proceeding.   However, the contemnor declined   to   do   so.      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 regarding contempt filed by learned Attorney General and one more chance be given, but that was virtually declined flatly by Dr. Dhavan, learned senior counsel, in the presence of the contemnor.  It is apparent that in both the statements made by the contemnor, he is sticking to his ground, and he is not at all realizing that any wrong was done by him to the institution.  At the same time, he has expressed the faith in the institution and he has submitted that an apology cannot be a mere incantation and an apology has to be as the Court itself put be sincerely made.   Prashant Bhushan being a person well versed with law ought to have given due weightage to the advice rendered by the learned Attorney General who has pleaded not to sentence him, at the same time maintained that the statements made in the affidavit in reply could not be taken into consideration for considering the case of Mr. Prashant Bhushan of truth as a defence.   

It was argued by Dr. Dhavan, learned senior counsel, that in case the contemnor is sent to the imprisonment, he will attain martyrdom, and he also should not be debarred from the practice.  He further stated that the Court could not pass an order debarring the contemnor from practicing unless a prior notice was issued to him and an opportunity of hearing was given in that regard.   Pursuant to the conviction in a criminal case, the Bar Council of India can suspend the enrolment, if it so desires.  It is also open to this Court to debar from practicing in a Court, as held in Supreme Court Bar Association (supra).   We are not afraid of sentencing the contemnor either with imprisonment or from debarring him from the practice. His  conduct reflects adamance and ego, which has no place to exist in the system  of   administration   of   justice   and   in   noble   profession,   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 be lawfully be inflicted upon him for what the Court has determined to be an offence.   

                     Duly balancing the factors urged by Dr. Dhavan as to the offender, offence, the convicting judgment and the defence taken we have to decide the question of sentence.  In our considered view, the act committed by the contemnor is a very serious one.  He has attempted to denigrate the  reputation of the institution of administration of justice of which he himself is a part.  At the cost of repetition, we have to state that the faith of the citizens of the country in the institution of justice is the foundation for rule of law which is an essential factor in the democratic set up. We   have   given   deep   thought   as   to   what   sentence   should   be imposed on the contemnor.  The conduct of the present contemnor also needs to be taken into consideration.  This Court in Tehseen Poonawala (supra)   has  observed   that  the   said   matter  was   a  fit  matter  wherein criminal contempt proceedings were required to be initiated. However, the court stopped at doing so observing that it would have been an unequal fight.   

The contemnor   not   only   gave   wide   publicity   to   the   second   statement submitted   before   this   Court   on   24.08.2020   prior  to   the   same   being tendered to the Court, but also gave various interviews with regard to sub-judice   matter,   thereby   further   attempting   to   bring   down   the reputation of this Court.  If we do not take cognizance of such conduct 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).  We, therefore, sentence the contemnor with a fine or Re.1/¬ (Rupee one) to be deposited with the Registry of this Court by 15.09.2020, failing which he shall undergo a simple imprisonment for a period of three months and further be debarred from practising in this Court for a period of three years.  

Contrary to some views being floated around, this appears to be categorical condemnation and punishment though not severe in any manner brought about by the magnanimity of the Institution.

 

With regards – S. Sampathkumar

1.9.2020.

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