Regret, martyr buzzwords as Supreme Court reserves sentencing
The court was urged by Bhushan’s lawyer Rajeev Dhawan and Attorney General (AG) of India KK Venugopal -- the top law officer of the Union government who was appearing in his personal capacity -- to not punish Bhushan, and to let him off with a reprimand.
The Supreme Court reserved its verdict on the sentence to be handed to Prashant Bhushan -- after giving the activist-lawyer a fresh opportunity on Tuesday to apologise, withdraw his comments, or express regret -- days after it held him guilty of criminal contempt of court for two tweets against the apex court and Chief Justice of India (CJI) SA Bobde.
The court was urged by Bhushan’s lawyer Rajeev Dhawan and Attorney General (AG) of India KK Venugopal -- the top law officer of the Union government who was appearing in his personal capacity -- to not punish Bhushan, and to let him off with a reprimand.
“The effect of a punishment is it will make Prashant Bhushan a martyr. Do not make Bhushan a martyr. We do not want this controversy to continue. This controversy will continue depending on the sentence that you give Bhushan,” Dhavan said.
The court, which considered these requests, wanted Bhushan to apologise before it could take a lenient view in the matter. The bench, headed by justice Arun Mishra, suggested that Bhushan must “express regret” for his tweets, and subsequent statements defending those tweets.
“Tells us what is wrong in using the word ‘apology’? Is it a reflection of guilt? It is a magical word which can heal. If you have hurt someone, you should apologise. There is no need to feel belittled by that,” justice Mishra, who will retire on September 2, said.
At one point on Tuesday, the court on gave Bhushan time to think over his responses and consider retracting his statements. But no apology or retraction was offered by the activist-lawyer, who has maintained in his replies to the court than an apology would be ingenuous and a “contempt of his conscience”. He has also argued that his criticism came with the best interests of the court in mind as a long-serving officer of the law.
The bench said that the court welcomes fair criticism, but those criticising the courts should not attribute motives to judges. “We tolerate fair criticism and welcome it. But do not attribute motives to judges when criticizing. We cannot go to the press to defend ourselves,” said justice Mishra.
He added that lawyers and judges are part of the same institution and should work together to ensure that the dignity of the institution is not compromised. “You [lawyers] are part of the system. We are not separate from the Bar. We [judges] have also come from the Bar.”
Several eminent jurists -- including former AG Soli Sorabjee, and justices RM Lodha and MB Lokur -- have over the past week said that the court was being overly harsh in initiating criminal contempt proceedings against Bhushan.
According to the Contempt of Courts Act, the offence of criminal contempt carries a punishment of up to six months in prison or a fine up to Rs 2,000 or both. The court has also, in previous instances, barred lawyers found guilty of contempt, from practising before the court for a limited period while refraining from imposing any jail sentence.
The morning session of Tuesday’s hearing witnessed an engaging discussion between the bench and Venugopal on the punishment to be handed down to Bhushan -- with the AG urging the court to let off Bhushan with a warning, and the court insisting on the activist-lawyer tendering an apology.
The bench said that Bhushan has declined to apologise and has also filed statements sticking to his stance. “We have given him time to think over. He says he is not ready to apologise. So, what should we do now?” asked Justice Mishra.
Interestingly, the bench pointed out that Venugopal himself filed a contempt of court case against Bhushan in 2019 for a remark made by Bhushan accusing the AG of misleading the court in a case relating to appointment of CBI director.
“I withdrew that case,” said Venugopal told the bench.
“Yes, but only after he (Bhushan) expressed regret,” said Justice Gavai.
Venugopal maintained that Bhushan should express regret, and the court should close the case. “Your Lordships should reprimand him and tell him not to repeat it in future. But do not punish him. It will be greatly appreciated at the Bar. That will be a fitting end to this case,” he said.
Bhushan had posted two tweets, one against the Supreme Court on June 27 and another against CJI Bobde on June 29.
Mehek Maheshwari, an advocate, filed a petition before the Supreme Court on July 9 seeking initiation of contempt of court proceedings against Bhushan for the tweets. Based on his petition, the court took suo motu (on its own) cognisance of the matter and listed it for the first time on July 22 and issued notice to Bhushan the same day.
The court then heard the matter on August 5 and held Bhushan guilty of a contempt of court in a judgment delivered on August 14. It then posted the case for hearing on August 20 to decide the sentence to be given to Bhushan.
When the matter was heard on August 20, Bhushan read out a statement expressing dismay over his conviction. He said that he was standing by his tweets, which he described as an attempt to discharge his duty towards the country.
The three-judge bench last week said it could show leniency only if Bhushan expressed regret and reconsidered his statement declining to apologise. It gave Bhushan time to submit an unconditional apology by Monday failing which it would proceed against him.
Bhushan submitted a supplementary statement before the court on Monday persisting with his stance and refusing to offer an apology. He submitted his views represented his bona fide (good faith) beliefs and, therefore, offering an apology for expressing them would be insincere.
His tweets were not intended to malign the apex court or the CJI but only offered constructive criticism “so that the court could arrest any drift away from its longstanding role as a guardian of the Constitution”, the statement by Bhushan added.
Rajeev Dhavan suggested on Tuesday that court should close the case after issuing a general direction that the Bar should exercise restraint while criticising the court. He specifically requested the court not to impose any punishment on Bhushan.
Dhavan also pointed out instance when lawyers and judges have criticised the court and its judgments. One of Bhushan’s main arguments was that criticising courts is protected by free speech and will not amount to contempt.
“Statements have been made (criticising the Supreme Court) not just by lawyers but also by judges. This court is often criticised and it will be criticised again and again. This institution will collapse if it does not suffer criticism,” Dhavan said.
It is not clear when the sentence will be announced, but it is expected before justice Mishra’s retirement.
