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“As to whether victory or defeat for individuals, I do not want to comment. But I do think that this sorry episode has been a defeat for the court’s authority as a whole.”Sanjay Hegde, senior advocate, Supreme Court
Slamming the Supreme Court’s decision to sentence Prashant Bhushan to pay a Re 1 fine for contempt of court by 15 September – or face three months in jail as well as three years’ disbarment from practice in the apex court – senior advocate Sanjay Hegde said this was a ‘wrong precedent’ and did not send a good message.
WHY THE SENTENCE WAS WRONG IN LAW
Noting the criticism of other legal experts, like retired Supreme Court judge Justice Madan Lokur, Hegde explains why the sentence imposed by the judges appears to be on shaky grounds when it comes to the law.
“The default sentence, there are already people questioning it in pure terms of law, because as far as sentencing goes in default, you can't sentence for more than 1/4th the maximum punishment,” he says, which is why “here where the maximum punishment is six months [under the Contempt of Courts Act 1971], this kind of three months thing doesn't wash.”
The sentence in case Bhushan fails to pay the symbolic fine also includes him being barred from practicing in the Supreme Court for three years, which is also a problem, according to Hegde. “In VC Mishra's case, the SC has said that you can't use [Article 142 of the Constitution, the SC’s power to do complete justice] to take away someone's licence to practice,” he notes, before adding “and this was on the footing that the Bar Council was the ultimate authority by statute.”
If something can’t be done by the court in general when it comes to punishment for contempt, how can it be imposed as a default sentence, he asks.
Coming back to the main Re 1 fine, Hegde says that this punishment, which can only be challenged in a review petition now, sends its own message. And,
“I am not sure it is a good message. This only reinforces my earlier criticism that in matters of contempt and criminal contempt especially, the courts should not necessarily go off their own bat without seeking the assistance of the Attorney General.”
HAS THIS CASE RESTORED THE SUPREME COURT’S AUTHORITY?
Hegde suggests that while the court has included some observations on sub judice cases and how comments should not be made about them, these observations appear to be out of date.
“Contempt law in the 18th and 19th centuries came about primarily because the judges perceived that anything stated in the press could unconsciously affect the outcome of the case. That is why you had the sub judice rule,” he explains. However, now, with the 24X7 news cycle on TV, and second by second reporting and comment on social media, the world has substantially moved on from that time.
“So I think it is time as a legal principle for courts to proceed on the basis that we do not care for anything except what is on the record of the court,” he argues.
Will this case also achieve the result the court wants, of fixing the damage done by contemptuous statements which undermine that authority?
To begin with, Hegde does not think the original tweets by Bhushan were contemptuous in the first place. They were “outspoken comments,” and the court may even be within its rights to consider them “unfair criticism,” but in his view, they did not in any way affect the court’s authority.
Indeed, “the court trying to restore that authority with this long judgment and this punishment, has not added to its stature,” he argues, and to restore its authority, the court will need to do a lot more, as it did when trying to rehabilitate itself after its failures during the Emergency.
IS THIS A VICTORY FOR PRASHANT BHUSHAN?
Hegde is wary of getting into the debate on whether or not the sentence was a victory for Bhushan, as “how Prashant Bhushan approaches his contempt or this particular contempt case would obviously differ from how somebody else approaches the case if there is a notice of contempt.”
While he doesn’t think he can comment on the case from an individual’s perspective, he does feel that there has been a loss in a bigger sense from the way the whole case has proceeded.
“I do think that this sorry episode has been a defeat for the court’s authority as a whole,” he says. The problem is the fact that it has put the lawyers, the Bar, at loggerheads with the judges, the Bench, in a case where the judges have indulged in what Hegde terms “adventurism.”
This is not beneficial to anyone, least of all the public’s perception of the Supreme Court as an institution.
“We in the Bar derive our authority from the court. Those on the Bench derive their level of public trust largely by how the Bar perceives them and how they treat the Bar.”
Keeping all this in mind, it may just be, as Hegde surmises, that despite being a bad precedent, or perhaps because of it, this judgment, case, and sentence will soon lose any value as a precedent for the future.
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