OLAV ALBUQUERQUE

The Supreme Court created judicial history by sentencing contemnoradvocate Prashant Bhushan to pay a token fine of one rupee for committing contempt of court, thereby indirectly recognising that the right to free speech of 1.5 billion Indian citizens overrode the right to dignity of three former CJIs and present CJI Sharad Arvind Bobde.

Though the bench has not explicitly declared this as law, this inference is permissible because the bench could have made an example of Bhushan to the nation by sentencing him to a day’s simple imprisonment or hiked the fine to Rs 2,000. On December 17, 2017, Justice C S Karnan created history by becoming the first sitting high court judge to serve the maximum sentence of six months in jail, for alleging several high court and a few Supreme Court judges were corrupt. Unlike Bhushan, Karnan was both reckless and feckless.

Senior advocate Rajeev Dhawan immediately deposited a one-rupee coin with the registry on behalf of an exultant Bhushan, who immediately held a press conference at 4pm, despite the three-judge bench of the apex court headed by Justice Arun Mishra warning that freedom of speech was important but not absolute and that Bhushan had tried to “influence” its verdict by approaching the press on earlier occasions as well.

Bhushan declared at his 4pm press conference he would seek review of the judgment convicting him for contempt of court because his tweets were not meant to “be disrespectful of the judiciary. When the Supreme Court wins, every Indian citizen wins. If the court gets weakened, it weakens the entire Republic,” he pontificated. If he had refused to pay the one rupee by September 15, Bhushan would have had to go to jail for three months and be debarred from practice for three years.

This token fine is much less than the fine of Rs 100 imposed by a two-judge bench of the Bombay High Court in 1989-90 on the late journalist Madhav Gadkari, for publishing allegations that a sitting judge of the high court was “amenable to the seductive influence of a lady advocate and he passed orders in her favour obviously not on merits”.

Gadkari had alleged in the Loksatta in 1989 that another partially-deaf sitting judge removed his hearing aids when he grew tired of hearing lengthy arguments. In a third case, he alleged touts shared the booty extracted from victims of road mishaps with lawyers and judges of the Motor Accidents Cases Tribunal in Mumbai.

The late Ram Jethmalani, who defended the late Gadkari and the Loksatta in the high court, offered to prove to the court that every word his journalistclient wrote was correct. But successive benches recused from hearing Jethmalani. Until a division bench of the late Justices R A Jahagirdar and Nirgudkar declared in 1990, truth could not be pleaded as a defence in contempt cases. This prevented the media from exposing alleged corruption within the judiciary for fear of getting hauled up for contempt until Parliament amended the law in 2006.

But 30 years later, Prashant Bhushan has won a resounding victory for free speech. The three-judge bench headed by Justice Arun Mishra , declared the press conference held by Justices Jasti Chelameswar, Madan Lokur, Kurian Joseph and Ranjan Gogoi (without