The trial of Prashant Bhushan: narrative flexibility at the Indian Supreme Court

By Nihal Sahu
Nihal is a B.A. LL.B (Hons.) Candidate at the National University of Advanced Legal Studies in India, and serves as the Managing Editor (Blog) of the NUALS Law Journal. At the moment, Nihal is deeply interested in the relationship between religion and the Indian state. 

The conviction and sentencing of Prashant Bhushan - one of India’s leading liberal lawyers - for contempt of court was deeply troubling. The Indian Supreme Court’s judgment comes at a critical moment in India’s constitutional history, marked by serious concerns about whether the Court is fulfilling its duty as a protector of civil liberties. The Bhushan case, while dispiriting, is not entirely unprecedented. Politicians and writers critical of the Court have been prosecuted for contempt before. However, the case is still worth examining because it serves as a reminder that institutions, including courts, are merely, to paraphrase Emerson, the lengthened shadows of men[1]. It reminds us that the judicial office is not somehow transformative, that judges do not abandon their prejudices when they don the robe. ​

The contempt petition was based on two tweets by Bhushan, and the proceedings that followed were marked by procedural irregularities [2].  The first tweet, made on June 27th, read as follows: “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a  formal Emergency, they will particularly mark the role of  the Supreme Court in this destruction, & more  particularly the role of the last 4 CJIs.” The second tweet, made on 29th June, read: “CJI [Chief Justice of India] rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access justice!” 
Under section 2(c) of the Contempt of Courts Act, 1971, criminal contempt through a publication must (or at least must be capable of) [s]candalising and lowering the authority of the court, or prejudice or interfere with the due course of a judicial proceeding, or obstruct the administration of justice [3]. Bhushan’s reply was thorough – the document is 134 pages long, with 463 pages in annexures – and more indictment than defense. [4] It begins by making a distinction; the Chief Justice (or even a succession of the Chief Justices) is not the Court, and therefore criticism of the Chief Justice does not amount to contempt of Court. The reply also had the expected selections from the canon: Seervai’s position that ‘a judge who makes public pronouncements which throw grave doubt on his impartiality, himself becomes an offender against the administration of justice,’ Lord Atkins’s ‘justice is not a cloistered virtue,’ Justice Krishna Iyer’s expectation that the constitutional courts ‘must vigilantly protect free speech even against judicial umbrage’ and Lord Denning’s emphatic ‘[w]e do not fear criticism, nor do we resent it.’ 
Stringent criticism of the CJI, Bhushan noted, was hardly new. In 2018, the four most senior judges of the Supreme Court crossed the rubicon and held a press conference  alleging that the CJI was not fulfilling his functions impartially [5]. Justice Kurien Joseph gave interviews claiming that the “CJI was being remote-controlled” [6].  The chilling effect of the Court’s recent freedom of speech decisions have been widely criticized even by members of the Court, with even sitting Justices of the Supreme Court drawing attention to the dangers of suppressing dissent as protests swept the country earlier this year. 
But Bhushan’s claim in his affidavit — his written reply to the contempt petition -- was an institutional critique as well; a three-fold claim that: “a) democracy has been substantially destroyed during the last six years; b) by its acts of commissions and omissions, the Supreme Court has allowed the emasculation of our democracy; and c) the role played by the last four CJIs has been very critical in the above mentioned process.” The remaining 96 pages of the affidavit are both defense and accusation, citing a litany of omissions and misdeeds. 
The Court convicted Bhushan on 14th August in a 108-page judgment [7]. The judgment acknowledges the existence of Bhushan’s Affidavit-in-reply, but accomplishes little else.  On the day the judgment was delivered, Gautam Bhatia wrote that “there is no legal reasoning, and therefore nothing to analyse” [8]. The Bar was nearly united in their denunciation. Navroz Seervai described it as “clearly erroneous, both in its reasoning and its analysis and interpretation of the contempt jurisdiction” [9]. Karuna Nundy tweeted that it was a “blow to the rule of law itself” [10]. Indira Jaising predicted “a bleak future for free speech” [11]. 
On 21st August 2020, Bhushan’s sentencing hearing took place. During the hearing, the Attorney-General pleaded with the bench to rethink its decision. Dhavan, Bhushan’s lawyer, asserted repeatedly that “truth is an absolute defence.” [12] Bhushan made a statement, quoting Gandhi, that has now become famous: “I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.” [13] After multiple attempts to persuade Bhushan to recant, the Supreme Court reserved sentencing and delayed its decision. Op-eds and editorials argued that the bench had backed itself into a corner and committed itself to turning Bhushan into a martyr [14]. The Attorney-general echoed the same concerns at the sentencing hearings, pleading that the bench exercise “judicial statesmanship” [15]. 
The Supreme Court sentenced Bhushan on August 31, 2020, requiring him to pay a symbolic fine of one Rupee. [16] If he did not pay the fine, he would have to face three months of imprisonment and a three-year ban from practicing in the Supreme Court. If Bhushan did pay the token fine, as he did, he could be accused of compromising his principles and publicly conceding guilt. And Bhushan could claim victory, having gotten off without even the customary slap on the wrist. This was narrative perfection. 
On other occasions, Justice Mishra, who was heading the Bench, has expressed his disdain for a “lobby” of bloggers and writers who seek to “destabilize” the judiciary [17]. Bhushan’s sentencing does not match the court’s ethos that public opinion should not influence its decision-making. His sentence was not designed to punish or deter, but instead to craft a narrative and prevent the creation of a martyr.  This decision was not an exercise in judicial statesmanship; it was an exercise in tactical acumen. 
But what does it mean to say that a constitutional court has achieved this kind of narrative flexibility? We often hear concerns about motivated reasoning, where legal reasoning is directed towards a desired outcome, instead of impartially applying a rule. But what happened in the trial of Prashant Bhushan was not quite motivated reasoning. It was arbitrariness. The Court, as an institution, has become sentient and entered the territory of narrative, with a brand of impulsive political dexterity that should not be acceptable from a government, let alone the judicial branch. 
The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
[1] Emerson, Ralph Waldo Selected Essays (Harmondsworth: Penguin American Library, 1982).
[2] V. Venkatesan, “In Prashant Bhushan's Contempt Case, an Issue of Procedural Fairness Comes to the Fore,” The Wire, August 6, 2020,  https://thewire.in/law/supreme-court-prashant-bhushan-contempt-procedure-fairness.
[3] The Contempt of Courts Act, 1971.
[4] Affidavit in Reply on behalf of Respondent No. 1, In Re: Prashant Bhushan and Anr., Suo Moto Contempt Petition (Crl.) No. 1 of 2020 (filed August 2, 2020), https://www.livelaw.in/pdf_upload/pdf_upload-380215.pdf. 
[5] “Democracy is in danger’: Watch the historic press conference held by four Supreme Court judges”, Scroll.in, https://scroll.in/video/864863/democracy-is-in-danger-watch-the-historic-press-conference-held-by-four-supreme-court-judges.
[6] “Ex-CJI Dipak Misra was remote-controlled by external influence: Former Supreme Court judge Kurian Joseph”, Financial Express, December 4, 2018, https://www.financialexpress.com/india-news/ex-cji-dipak-misra-was-remote-controlled-by-external-influence-former-supreme-court-judge-kurian-joseph/1402910/.
[7] In Re: Prashant Bhushan and Anr., Suo Moto Contempt Petition (Crl.) No. 1 of 2020 (2020), https://main.sci.gov.in/supremecourt/2020/14323/14323_2020_32_1502_23453_Judgement_14-Aug-2020.pdf.
[8] Gautam Bhatia, ‘Contempt of Court and Freedom of Speech: An Analysis of the Prashant Bhushan Judgment’, Indian Constitutional Law and Philosophy, August 14, 2020, https://indconlawphil.wordpress.com/2020/08/14/contempt-of-court-and-freedom-of-speech-an-analysis-of-the-prashant-bhushan-judgment/. 
[9] “SC's Verdict Against Prashant Bhushan Will Have 'Chilling Effect' on Free Speech: Lawyers”, The Wire, August 17, 2020, https://thewire.in/law/supreme-court-prashant-bhushan-contempt-of-court-guilty-free-speech-chilling-effect-lawyers-statement.
[10] Karuna Nundy (@karunanundy) , “The line in Shakespeare's Henry the VI, ‘The first thing we do, let's kill all the lawyers’ is - contrary to popular perception - about removing  bulwarks against totalitarianism. @pbhushan1 threatened with prison for two tweets critiqueing SC is a blow to the rule of law itself.”, Twitter, August 14, 2020, https://twitter.com/karunanundy/status/1294178615832260609. 
[11] “‘Bleak Future’: Lawyers, Academics Slam SC’s Ruling on Bhushan”, The Quint, August 14, 2020, https://www.thequint.com/news/law/prashant-bhushan-guilty-contempt-case-supreme-court-reactions-indira-jaising-sitaram-yechury.
[12] Utkarsh Anand (@utkarsh_aanand), “Dhavan: Truth is an absolute defence. I can plead this at any stage of the proceedings. Even if I hadn't filed this affidavit, I can still claim truth as defense. Dhavan takes name of one CJI from Bhushan's affidavit. Mishra J asks Dhavan not to take names. #PrashantBhushan”, Twitter, August 20, 2020, https://twitter.com/utkarsh_aanand/status/1296339926946967552?s=20.
[13] Supplementary Statement by Prashant Bhushan, Respondent 1, In Re: Prashant Bhushan and Anr., Suo Moto Contempt Petition (Crl.) No. 1 of 2020 (filed August 24, 2020).
[14] ‘Supreme Court's 'Intolerant Side': Newspapers Side With Prashant Bhushan in Contempt Case’, The Wire, September 1, 2020, https://thewire.in/media/supreme-courts-intolerant-side-newspapers-side-with-prashant-bhushan-in-contempt-case.
[15] ‘AG, Dhavan call for judicial statesmanship as SC reserves order in Bhushan’s sentencing’, The Leaflet, August 25, 2020, https://www.theleaflet.in/ag-dhavan-call-for-judicial-statesmanship-as-sc-reserves-order-in-bhushans-sentencing/#.
[16] Sentencing Judgment of August 31, 2020, In Re: Prashant Bhushan and Anr., Suo Moto Contempt Petition (Crl.) No. 1 of 2020 (2020), https://main.sci.gov.in/supremecourt/2020/14323/14323_2020_33_1504_23746_Judgement_31-Aug-2020.pdf
[17] Krishnadas Rajagopal, ‘Lobby targeting judiciary via sponsored articles: Justice Arun Mishra’, The Hindu, October 16, 2019, https://www.thehindu.com/news/national/lobby-targeting-judiciary-via-sponsored-articles-justice-mishra/article29713939.ece. 

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.