The Supreme Court of India has sentenced Mr. Prashant Bhushan, Advocate ("Bhushan") on August 31, 2020 after rendering a guilty verdict on August 14, 2020. The Court, while sentencing Bhushan observed the following:
"92…… 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).
93. We, therefore, sentence the contemnor with a fine of 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."
It is noteworthy that the Supreme Court has imposed a 'nominal' Rs. 1 fine, but in case he refuses to deposit (it is inconceivable that Bhushan, or for that matter, any person will not be able to arrange Rupee 1 in 15 days.) the fine, he has to serve three months in jail and will also be prohibited from practicing before the Supreme Court for three years In this article, my analysis is limited to an assessment of the power of a court to impose a default sentence in case a person can/does not pay the fine.
Law on imposition of default sentence:
It is important to understand the difference between a sentence of substantive imprisonment and an imprisonment in default of payment of fine. It is settled law that any term of imprisonment that is imposed in default of payment of fine is not a sentence. Legally, a sentence in fault is only is only a penalty for non-payment of the fine imposed. The Supreme Court in Shahejad khan Mahebub khan Pathan v State Of Gujarat, (2013) 1 SCC 570 after discussing the principles guiding imposition of default sentence held as under:
"It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine………."
In Shahejad Khan (supra), the Supreme Court followed the principles on sentencing reiterated in its earlier judgment in Shantilal v. State of M.P. (2007) 11 SCC 243. In an erudite judgment in Shantilal, the Court analysed the position of law with respect to the imprisonment in default of payment of fine by referring to the various provisions of the Indian Penal Code 1860 ("IPC"), Code of Criminal Procedure, 1973 ("the Code" or "CrPC") and the General Clauses Act, 1897 and held that "even in absence of specific provision in the Act empowering a Court to order imprisonment in default of payment of fine, such power is implicit and is possessed by a Court administering criminal justice." It further held that a bare reading of Section 25 of the General Clauses Act, 1897 "makes it explicitly clear and leaves no room for doubt that Sections 63 to 70, IPC and the provisions of CrPC (Sections 30, 31) relating to the award of imprisonment in default of payment of fine would apply to all cases wherein fines have been imposed on an offender unless the Act, Regulation, Rule or Bye-law contains an express provision to the contrary."
The observations on applicability of Clause 25 of the General Clauses Act, 1897 on sentencing is important as it establishes that the provisions in IPC and CrPC on sentencing in default of payment of fine apply to even those offences/criminal proceedings which are not governed by IPC. For instance, in Shantilal (supra) the Court was dealing with Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS). Similarly, a sentence imposed in the exercise of criminal contempt must also comply with the relevant provisions of sentencing under IPC and CrPC even though there is no offence under IPC.
Default imprisonment cannot exceed one-fourth of six months:
Section 64 of IPC provides the power to the Court which sentences an offender to state that, in default of payment of a fine, the offender shall suffer imprisonment. However, as per Section 65 of IPC, if the offence is punishable with imprisonment as well as fine, the term of imprisonment in default of payment will not exceed one-fourth of the longest term of imprisonment prescribed for the offence. Thus, the purpose of providing for default punishment is to ensure the payment of the fine, but the said default punishment cannot be excessive. Under Section 12 of the Court of Contempt Act, 1971, contempt of court may be punished with simple imprisonment for six months, or with a fine which may extend to two thousand rupees, or with both. The maximum possible sentence in default of the maximum fine of Rs. 2000 under Section 12 of the Contempt of Courts Act cannot be more than one-fourth of six months, that is one and half month.
Having discussed the one-fourth of maximum imprisonment rule for imposition of sentence in default for understanding the legal, the facts of this case, in fact, do not merit calculating one-fourth of maximum punishment for the purposes of the default sentencing. It is for the reason that the default imprisonment in a particular is not based automatically on maximum imprisonment rule (which is just the upper limit) but has to tempered and correlated with the actual fine imposed in a case. For a 'nominal fine' as in this case, an exemplary default sentence cannot be imposed. In fact, the default punishment, which in law, is not a sentence at all, but only a penalty for default in not paying the fine, must independently satisfy the proportionality rule laid down in many judgments including in Shahejad Khan and Shantilal mentioned above. In Shahejad Khan, the default sentence for an order of payment of fine of Rs. 1, 50,000 was reduced by the Supreme Court from a rigorous imprisonment of three years to a rigorous imprisonment for six months. Similarly, taking a reasonable view, in Shantilal too, the Supreme Court reduced the default sentence of three years to six months on account of non-payment of an order of Rupee one lakh fine.
In this case, it is significant that the Court did not choose to imprison the contemnor but imposed only a 'nominal' fine of Rupee one, ("by showing magnanimity, instead of imposing any severe punishment") arguably the lowest possible punishment in terms of fine, the default sentencing can only be nominal. Applying these well-entrenched legal principles to this case, it is absolutely perverse to prescribe a default sentence of three months and also bar the contemnor from practice before the Supreme Court for three years if he choose not to deposit Rupee 1 with the Registry. When the sentence is only for Rupee one, even one day imprisonment in default would appear excessive and disproportionate.
Is the default sentence the next (only) step when a person refuses to pay fine?
The Supreme Court gave a separate hearing on sentencing extending to two dates and passed along judgment on the sentence on 31 August 2020. Given the indulgence to the contemnor in hearing him separately for the sentence after his conviction, in accordance with the principle of CrPC, it is perplexing to see that the Court failed to invoke the regular provisions of the Code to recover the 'nominal fine'.
Section 68 of IPC expressly provides that any imprisonment which is imposed in default of payment of a fine terminates whenever that fine is either paid or levied by process of law. What this means is that the payment of fine is not only dependent on the will of the convict. A court is entitled to levy the fine in accordance with law and recover the same. Since the Court was apprehensive that the contemnor may refuse to pay the penalty, it exercised the general principles recognized in Section 64 of IPC to impose a default sentence of Rupee one. However, a default sentence for recovery of such 'nominal fine' would not have been required since the said nominal fine could have easily been levied by invoking the Court's power under Section 421 of CrPC ("warrants for levy of fine"). Section 421 provides that when an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine through attachment of movable or immovable property or as arrears of land revenue or both. In the present case, in fact, since a fine of Rupee one only was imposed, it is clearly reasonable to assume that Rupee 1 could have been easily recovered by either attachment of his property and/or as an arrear of land revenue. Practically, there was no occasion for a default sentence (that too with such extreme consequences on a person's life, liberty, and profession.) as non-recovery of one rupee was not even a possible circumstance.
Bar from practice for three years as additional default sentence:
As discussed above, the Court has imposed a default imprisonment of three months in case of non-payment of Rupee 1. Further, additionally, again as a default punishment, it has also barred him for practising before the Supreme Court of three years.
It is well recognised that the Court may "prevent the contemnor advocate to appear before it till he purges himself of the contempt"………and " in a case of contemptuous, contumacious, unbecoming or blameworthy conduct of an Advocate-on-Record, this court possesses jurisdiction, under the Supreme Court Rules itself, to withdraw his privilege to practice as an Advocate-an-Record because that privilege is conferred by this court and the power to grant the privilege includes the power to revoke or suspend it. The withdrawal of that privilege, however, does not amount to suspending or revoking his license to practice as an advocate in other courts or Tribunals."
Thus, if the Court had deemed it fit to sentence Bhushan by barring him from practising before it, there would have been no jurisdictional error. Significantly, Bhushan has not been barred from practice before the Supreme Court as a part of the sentence. However, the Court has declared that there shall be a bar on his practice as an advocate as a result of default in payment of one rupee fine, which is 'nominal' even as per the Court, is totally contrary to the principles of sentencing and unknown to law. There is no power under IPC or CrPC to substitute payment of fine with any other mode of punishment other than imprisonment, much less by a means which has a deleterious effect on the fundamental right to practice his profession and also earn his livelihood.
A default sentence of three months of imprisonment and three years of bar to practice before the Courts because a contemnor may refuse to pay a fine of one rupee, is disproportionate, harsh, excessive and makes bad law. Since the Supreme Court judgments declare the law under Article 141 of the Constitution, this particular judgment distorts the law on default sentencing by introducing factors beyond the well-recognized principles under IPC, CrPC, and General Clauses Act and previous judgments of the Apex Court. It is important to reiterate again that a default sentence is not a sentence imposed by the Court but only a penalty for non-payment of fine. It is inconceivable that a non-payment of fine of one rupee to the Supreme Court Registry can only be substituted and compensated not only by a simple imprisonment of three months but also by barring Bhushan from practising before the Supreme Court for three years.
Postscript: It is well-publicized that Bhushan is likely to file a review petition before the Court against his conviction. After the pronouncement of the sentence, Bhushan also appears to be inclined mount a challenge to the sentencing order in the review petition. Since the sentencing portion on the default sentence contains apparent errors, the said part is clearly impeachable even within the limited grounds of review. The review hearing may also provide an early opportunity to the Court to lay down the correct law for posterity in this regard even if Bhushan agrees to pay the fine (assuming the review gets dismissed).
Tahir Ashraf Siddiqui is an Advocate- on- Record, Supreme Court of India and practices before courts in Delhi. He may be reached at [email protected] . Views are personal.