Don’t punish Prashant Bhushan in contempt case, says AG KK Venugopal

Attorney General of India KK Venugopal told the Supreme Court on Thursday that lawyer-activist Prashant Bhushan should not be punished for criminal contempt of court, in an unexpected twist to the proceedings even as the court reserved its judgment and gave time to Bhushan till August 24 to tender an unconditional apology for his tweets criticising it and Chief Justice of India (CJI) SA Bobde.

During the hearing before a three-judge bench headed by justice Arun Mishra, Bhushan stuck to his position saying speaking up was his duty as a citizen, refused to tender an apology, and indicated he was unlikely to change his mind. Senior advocate Rajeev Dhavan, appearing for Bhushan, cited the range of public interest causes Bhushan has been involved in.

The Supreme Court, on August 14, held Bhushan guilty of contempt of court for two tweets — the first, on June 27, where he was critical of the top court and the role of the last four chief justices, and, the second, on June 29, where he criticised the current CJI. The hearing on Thursday was to decide on the sentence to be imposed on Bhushan.

Appearing in his personal capacity before the three-judge bench, Venugopal — whose consent was not obtained before the matter was taken up and who was not heard by the Supreme Court during the contempt hearings — said that while he is not seeking a review of the court’s judgment, the court should be magnanimous in not imposing any punishment on Bhushan.

“I request your lordships not to punish him (Bhushan),” AG Venugopal said, adding that Bhushan had done a lot of public good.

The AG also attempted to draw the attention of the court to previous instances when judges of the Supreme Court have criticised the functioning of the court and raised concerns of corruption in higher judiciary. “I have a list of five judges of Supreme Court who said democracy has failed. I have a list of nine judges who said there is corruption in higher judiciary. Of these nine judges, two made statements while they were sitting judges and seven immediately after they retired. I myself gave a speech in 1987 at the Indian Law Institute…”

The bench, however, cut short the AG’s arguments, stating that its judgment of August 14 will not be reconsidered and the AG should not make arguments on the merits of the case since the case had already been decided. The bench asked the AG to restrict his submissions to the sentencing aspect.

“We are not on merits here. We are not hearing any review. Our judgment of August 14 stands,” justice Mishra said.

The bench, which also comprised justice BR Gavai and justice Krishna Murari, maintained that it can show leniency only if Bhushan expressed regret and reconsidered his statement where he declined to apologise.

Bhushan had prepared a statement which he read out to the court when the hearing of the case began on Thursday. He expressed dismay at the judgment of August 14, which, he said, arrived at a conclusion against him without providing any evidence of his motives. He said he stood by his tweets, and invoked Mahatma Gandhi’s stance in a case slapped against him by the colonial British government.

“I can only humbly paraphrase what the father of the nation 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,” Bhushan said, reading out from his statement.

The bench, however, said, “We can become lenient only if the person enters an apology in the real sense. Let us give him some more time to think over his statement.”

Justice Mishra told Bhushan, “We can give you time to consider it. We will give you 3 to 4 days time to think about the statement made today.”

AG Venugopal said that Bhushan was unlikely to change his stance, while Bhushan maintained that his statement was “well considered and thought out” and it was unlikely that he will make any substantial changes to it. He, however, said he would consult his lawyers and get back to the court.

The role of the AG — the government’s most senior law official — has come into sharp spotlight in the case. The case itself has its genesis in a petition filed on July 9 by Mehek Maheswhari, an advocate. As per section 15 of the Contempt of Courts Act and Rule 3 of Rules to Regulate Proceedings for Contempt of Supreme Court, a criminal contempt petition filed by a private individual can be heard by the court only if the petitioner has obtained the consent of the AG.

Maheswari had not obtained such consent, which would have normally led to the registry of the court rejecting the petition outright without listing it before the judges. But the court proceeded suo motu (on its own) with the contempt case after the registry brought the petition to the notice of the court on the administrative side.

The court listed the case for the first time on July 22 and issued notice to Bhushan the same day. The court also issued notice to AG Venugopal that day. However, when the case was heard on merits on August 5, the AG was not heard though he was present throughout the day-long hearing.

The hearing on Thursday regarding sentencing also witnessed a repeat of the same, as the bench heard the AG only towards the end of the hearing and did not allow him to complete his arguments.

Experts believe this is unusual.

“There is a reason why the AG’s consent is required before a private individual can prosecute a criminal contempt case. It is a safeguard which ensures application of mind by an independent person because in a contempt case, the court is both the prosecutor and the judge. In this case, since the AG’s consent was not taken, they issued notice to him so that they could hear him in case they need his advice. In such cases, the AG acts as a guardian and a guardian has to act or speak only when called upon to act or speak. Therefore, the AG was seen but only heard almost at the very end,” senior counsel Sanjay Hegde told HT.

Senior counsel Rajeev Dhavan, appearing for Bhushan, pointed to the activist-lawyer’s credentials and his contributions to the cause of public interest. He mentioned the coal mining case, the Odisha mining case, the case on removal of the Central Vigilance Commissioner, the 2G case, the police reforms case, the euthanasia case, the street vendors case, the Singur land acquisition case, and the RTI cases as Bhushan’s work. “All these cases are pro bono (work undertaken without charging fees). He has not received any advantage out of these,” Dhavan said.

The court appreciated Bhushan’s work but said there are limits and boundaries to the freedom to criticise courts and judges.

“We appreciate all your efforts in filing good public interest cases; we welcome all that. But there is a ‘lakshmana rekha’ (limit). Why do you cross it? You are part of the system. You forget it,” justice Mishra said.