Prashant Bhushan refuses to apologize; says he will cheerfully submit to any penalty; AG tells SC not to punish

Advocate Prashant Bhushan on Thursday refused to apologise for the two tweets for which he was found guilty of criminal contempt of court.

"My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic. I did not tweet in a fit of absence mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bonafide belief", Bhushan said.

Reading out his statement before a three-judge bench of Justices Arun Mishra, B R Gavai and Krishna Murari, a defiant Bhushan paraphrased what Mahatma Gandhi had said in his trial:

"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".

The top court was hearing arguments on the sentencing when Bhushan read out his statement expressing no remorse for his tweets.

Bhushan said he was pained that he had been held guilty of committing contempt of the Court whose majesty he hadn't tried to uphold — not as a courtier or cheerleader but as a humble guard – for over three decades, at some personal and professional cost.

"I am pained, not because I may be punished, but because I have been grossly misunderstood", Bhushan told the bench.

Significantly, Attorney General for India (AG) K K Venugopal urged the Court not to punish Bhushan. AG added he had a list of five judges who talked about lack of democracy in the Supreme Court. He said he had a list of nine judges who talked about judicial corruption.

Justice Arun Mishra who was presiding the bench, however, told the AG that the court was not hearing a review petition and no argument on the merits of the case could be made at this stage.

Also Read: Contempt Unbound: The Supreme Court on Prashant Bhushan

The court also said that the request not to punish Bhushan could be considered if he reconsiders his statement refusing to apologise.

Bhushan, in response, said his statement was well-considered and thought out. He added he could consult his lawyers, but there may not be substantial changes in it.

At the outset, the bench also assured senior counsel Dushyant Dave who appeared for Bhushan, that any punishment inflicted upon Bhushan would not come into effect till the review petition was decided. This assurance came from the bench when Dave sought to seek a deferment of the hearing on the sentencing until the review petition (yet to be filed) was decided.

Taking note of the fact that the review petition was yet to be filed, Justice Gavai said "it appears that the review will be sought when one of the judges on the Bench (Justice Mishra) retires.

Justice Mishra is set to retire on September 2.

In response, Dave said –

"Review can be filed within 30 days. Let the impression not go that review will not be filed till Justice Mishra retires…Every order of Justice Mishra can be reviewed, but that does not mean that review has to be filed before Justice Mishra retires. There is a statutory limit of 30 days."

Heavens are not going to fall, Dave said, if the sentencing is deferred until the review is decided. He added It is not provided in the law that it has to be decided by the same Bench.

Justice Mishra, in response, said-

"A sentencing is a continuation of him being found guilty. Will it be appropriate if another Bench decides on sentencing? Suppose I was not demitting office, then would it be appropriate for another Bench to decide on sentencing?"

Eventually, the plea seeking deferment of the hearing on the sentencing did not find favour with the bench.

Senior Advocate Rajeev Dhavan who was also appearing for Bhushan submitted that he was not in favour of deferment of the hearing. He said,

"I just want to say, at the Bar, we take our judges as they come, we don't go Bench hunting. It is immaterial if a judge is retiring."

Dhavan argued that in contempt cases, the nature of the contemnor, as well as the nature of the offence have to be considered. To this, Justice Mishra remarked-

"You want us to balance, the Court is for balance, if we don't balance the whole institution will be destroyed. But if counsel's interest has to be protected, at the same time the institution also has to be protected. You all are part of this institution, this system. Sometimes in zeal, you cross the lakshman rekha. We appreciate the cases and the work and efforts for good cases."

Dhavan further argued the Court did not examine how the tweets were "scurrilous". The conclusion was reached without considering the justification of Prashant Bhushan.

Also Read: What do former CJIs and Senior Advocates have to say about Prashant Bhushan's contempt verdict?

Referring to statements made by Justices R M Lodha, AP Shah, Justice M B Lokur and K M Joseph supporting Bhushan, Dhavan sought to know from the bench whether they too were in contempt?  To this Justice Mishra said  "Please don't invite our comments on that. Please don't argue all this".

Dhavan went on to state that a supposed contemptuous statement if repeated will be contempt. Affirmation of contempt will be contempt. This is where all newspapers and publications will come in. Justice Mishra told Dhavan to restrict himself on the arguments on sentencing.

"We do not enjoy punishing individuals. The purpose of the sentence, for me, is deterrence. Mistakes can be committed by anyone. In such a case, a person must realize that and admit to it", Justice Mishra said.

After having heard the arguments for the day, the court directed that Bhushan may submit an unconditional apology if he so desires. In case, an apology is submitted, the case to be posted for consideration of the same, on August 25.

Background

On August 14, the Supreme Court held advocate Prashant Bhushan guilty of the contempt of court for his two tweets regarding the institution of the Supreme Court and the office of the Chief Justice of India (CJI).

In his first tweet on June 27, Bhushan had said, "When historians in future look back at the last six 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."

Also Read: Legal Professionals call for a review of the 'iron hand' by the Constitutional Court of India

Likewise, the second tweet dated June 29 commented on a viral picture that showed CJI Bobde on a Harley Davidson bike. The tweet in question read: "CJI 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!"

A three-judge bench of Justices Arun Mishra, B R Gavai and Krishna Murari held that the tweets were an attempt to shake the very foundation of constitutional democracy and hence must be dealt with an 'iron hand'.

The bench added that if the attack is not dealt with, with a requisite degree of firmness, then it may affect the national honour and prestige in the comity of nations.

Also Read: Bar Human Rights Committee of England and Wales seeks stay on the sentencing of Prashant Bhushan

Read the statement of Prashant Bhushan

http://theleaflet.in/wp-content/uploads/2020/08/Statement-Prashant-Bhushan.pdf