AG, Dhavan call for judicial statesmanship as SC reserves order in Bhushan’s sentencing

The Supreme Court Tuesday reserved its order on sentencing noted human rights lawyer Prashant Bhushan for the two tweets for which he was found guilty of contempt of court and for which he refused to tender an apology despite being given the opportunity by the court to do so.

A three-judge bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari after hearing the Attorney General for India (AG) K K Venugopal and senior advocate Rajeev Dhavan for Bhushan, said that the court could tolerate fair criticism and would welcome it.

The bench added it was painful to read the justification offered by Bhushan to his tweets.

The presiding judge, Justice Mishra also remarked that judges and advocates were part of the same institution and both should work together to maintain the dignity of the institution. He added there was nothing wrong in apologizing if someone was hurt.

Also Read: Will not retract tweets, will not apologize, reiterates Prashant Bhushan

Justice Mishra expressed his displeasure at lawyers going to the press in pending cases and also deprecated the practice of making allegations against retired judges.

"When lawyers go to the press or make statements (against judges) that is a problem. We cannot go to the press. How long can a system suffer? Why is it that you can say anything against retired judges," Justice Mishra asked.

Attorney General

Attorney General K K Venugopal said that the statement made by Prashant Bhushan should be viewed as a request to the court to improve itself. He added that retired and sitting judges have themselves made comments about the Supreme Court.

"At least five judges have made comments about the SC having failed to protect democracy", AG Venugopal submitted.

Venugopal urged the bench not to punish Bhushan for his tweets.

"Your lordships should warn him and tell him not to repeat it in future. But do not punish him," he said.

In response, the bench asked if there was any point in warning when Bhushan had not realized his mistake.

The AG, in response, submitted that this was one case where the court should forgive him and take a compassionate view.

"It will be greatly appreciated at the Bar and will befit the status of the court", said the AG.

The AG also highlighted the good work done by Bhushan for the institution and public good. He also suggested that Bhushan may express his regret as he did in the 2009 contempt case against him.

Venugopal also suggested that the reply filed by Bhushan be taken off the record. Justice Arun Mishra, in response, wondered how that could be done when Bhushan had said it was his bona fide belief?

In essence, the AG pleaded to the Court not to punish Bhushan and close the matter by showing judicial statesmanship.

Senior Advocate Rajeev Dhavan

Senior advocate Rajeev Dhavan, who appeared for lawyer Prashant Bhushan, urged the Court not to punish Bhushan and make a martyr of him. He suggested that the Court close the matter after issuing a general direction that Bar should be restrained while criticising the court.

"The effect of sentencing Prashant Bhushan may result in making him a martyr. We don't want this controversy to continue. This controversy will continue depending on the sentence that you give Bhushan", Dhavan submitted.

Dhavan, speaking for himself, said he has been writing on the Supreme Court for a long time. Even when a certain CJI retired, he had written how he was acting like a Sultan and no contempt was taken.

Referring to the Court's previous order giving Bhushan time to tender an unconditional apology, Dhavan submitted that the said order looked as if a contemnor was being coerced to give an apology. It was an exercise in coercion.

Dhavan also referred to retired judges namely Justices Madan B Lokur, Justice Kurian Joseph, and A P Shah who made the statements in support of Bhushan, and asked the bench whether they are also in contempt?

"When a person is indicted for contempt, is he not expected to offer a defense?", Dhavan asked.

Dhavan went on to argue that an apology should not be to get out of the clutches of the court. It should be sincere. What Bhushan had said was his sincere belief.

On being asked by Justice Mishra as to what he would suggest as an officer of the court if the court proposes to punish Bhushan, Dhavan replied that the AG had suggested a reprimand but he would say not even a reprimand but a general statement that the Bar should be a little restrained in criticizing the court.

"We only want this case and controversy to end and this can be closed only with judicial statesmanship," Dhavan said.

Background

The top court on August 20 had directed that Bhushan may submit an unconditional apology if he so desired.

This followed a statement read out by Bhushan before a three-judge bench of Justices Arun Mishra, B R Gavai and Krishan Murari, refusing 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 had said.

In response to the court's order, Bhushan filed a supplementary affidavit on August 24 reiterated his two tweets for which he was found guilty of contempt of court and declined the offer of the Supreme Court to express an unconditional apology.

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

Bhushan, in an affidavit filed today, said his tweets represented the bonafide belief he continues to hold. Public expression of these beliefs was he believed, in line with his higher obligations as a citizen and a loyal officer of the court.

He, thus, said an apology for expression of these beliefs, conditional or unconditional, would be "insincere".

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 led by Justice Mishra 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.