Supreme Court is about to score an own goal in Prashant Bhushan case; jailing him will turn 'dissident' into public hero

Prashant Bhushan was held guilty of contempt last Friday. The Supreme Court found that two of his tweets about the judiciary constituted publication that scandalised and lowered the authority of the court. What happened today (20 August) at his sentencing hearing, may have had consequences that the court probably did not foresee when they convicted him. The law of contempt is justified on the grounds that courts being authorities that have to be respected, should be able to punish people who do things to lower their authority. For the power of courts only works on respect. They do not have an executive machinery to enforce their orders. The executive branch enforces the orders and they do so out of respect to the court and it is this respect that we call constitutionalism— where authorities of the state bow to the law. The courts being the keepers and speakers of the law, must be respected if constitutionalism has to survive. So exists the law of contempt, to protect the Court and to preserve its dignity. What played out today, was quite a pantomime if one may be permitted to use such a term. It was live tweeted thankfully so everyone got to hear what went on in the Supreme Court.

Prashant Bhushan Contempt : SC bench headed by Justice Arun Mishra to hear Prashant Bhushan @pbhushan1 on sentence for the offence of criminal content by scandalizing the court. On Aug 14, the SC had held him guilty for contempt of court over two tweets against CJI & SC. pic.twitter.com/UFwThBzgYZ

— Live Law (@LiveLawIndia) August 20, 2020

Bhushan made a statement where he refused to apologise and quoted MK Gandhi and said he would accept any punishment willingly as he stood by his statement. The court wondered if this was an aggravation or mitigation when it concerned his sentencing. However, this statement puts the court and the entire system in a difficult position. For if they send him to jail, they will look like a Pontius Pilate, when he sent Christ to the cross. If they don’t, then the entire country will feel that the “iron hand” (to use the language of the court) is nothing more than a rusty nail. Which is perhaps why this entire contempt hearing should have never happened in the first place. Punishing someone for contemptuous tweets, as in the case of Bhushan, in the age of social media, means that whether one likes it or not, the trial will play out publicly. In this case, the accused may actually capture the public imagination. It’s not hard to think of John Lilburne when one sees Bhushan’s position. Some context is required here. In Medieval England, there used to be a court called the Court of the Star Chamber. Those brought before that court were made to take what was called the Ex-Officio Oath. An oath that required them to answer all questions put to them, and to answer them truthfully. This put them in a peculiar position. If they answered, they could incriminate themselves. If they didn’t. They could be held in contempt. If they lied on oath, religious people as most were back then, they would have committed a mortal sin. John Lilburne was pulled up before the Star Chamber for making “unlicensed publications” (he was against the Stuart Monarchy). He refused to take the oath and contented that he had a right as a freeborn. He said, while asserting his right not to take the oath “Another fundamental right I then contended for, was, that no man’s conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so.”

For refusing to take the oath, he was found in contempt. He was fined 500 pounds (an obscenely large sum of money in those days), whipped, put on the pillory and imprisoned till he complied. While being taken to the pillory, he managed to make more statements and distribute more “unlicensed literature”. The ruckus of repeatedly pulling him up to court and having him assert what were “freeborn rights” resulted in Parliament finally abolishing the ex-officio oath. Today that abolishment has become a part of the constitutional law of many nations and is called the right against self-incrimination. Bhushan is a similar figure. Here, he has published tweets that are now in the judgement of the Supreme Court contemptus in nature. But rather than apologise and beg for mercy, he continues to assert his right to have made them. Today’s hearing in the Supreme Court saw an unrepentant Bhushan who doubled down on his initial defence while the country followed along on twitter. Like Lilburne, Bhushan has been able to raise immense public support for his position. Many newspapers and leaders are reproducing his tweets verbatim in support of him. This activist lawyer, who till recently, enjoyed only limited support from some sections, has now been raised to a pedestal, where people are crossing political lines to come to his defence. The Supreme Court today gave Prashant Bhushan three days' time to reconsider his statement. Bhushan declined the offer saying he was not inclined to reconsider, but they offered it to him anyway. Which may perhaps tell us, exactly where the Judiciary has managed to place itself. The only way for the Supreme Court to save face right now is if Bhushan apologises. If they don’t sentence him for contempt, the message sent would be that the Court bowed to public pressure. If they do, then Bhushan becomes a hero and photos of him happily walking into prison are on the front page of every newspaper. Who knows, maybe some international human rights NGOs may also declare him a “Prisoner of Conscience”. Through the hearing, both on merits and on sentencing, the Attorney General for India, KK Venugopal was present as he had been issued notice to assist the court. On merits, he wasn’t allowed to advance submissions. They let him say a few words today. He started with asking the court not to punish Bhushan and then referred to all the work that Bhushan did. The Court doubled down and said “We cannot consider your proposal(of not punishing him) unless he rethinks his statement”. The Attorney General attempted to make more submissions saying he had a list of five judges who say democracy has failed. He was shut down. Personally today, from what I read, it appeared to me that the only person with genuine concern for the future of the court was the Attorney General and he wasn’t really heard at all. This entire thing that’s played out before us, is something that should have never happened. The Supreme Court after the emergency, had to re-earn the trust of this country and they have done a stellar job of doing it. But unfortunately, Bhushan’s contempt case has managed to put the entire system on trial. All of this over a photo of the Chief Justice on a motorcycle and an opinion expressed on twitter. The Supreme Court while finalising his sentence in the matter, may just have to get ready to score one of the most phenomenal own-goals in judicial history. One really hopes and prays, that this can somehow still be avoided. All is not lost yet. Till the judgement is signed, the case is still open and there is still time for all parties to see some semblance of sense and prevent what is perhaps going to become a landmark sentencing in the history of not just this country, but almost every country that follows the judicial tradition of the law of England.