The Supreme Court reserved its verdict on the sentence to be awarded to activist-lawyer Prashant Bhushan in the criminal contempt case against him.
During the hearing, the bench headed by Justice Arun Mishra gave around 30 minutes to Prashant Bhushan to “think over” and reconsider his stand in the matter. Meanwhile, Attorney General KK Venugopal urged the court to take a “compassionate view”.
Expressing his displeasure at the practice of lawyers going to the press in case of matter that are sub-judice, Justice Mishra observed that lawyers have to be tolerant and should not just attack the judiciary. He said that while fair criticism is always welcome, judges cannot go to the press to explain or defend themselves and are often humiliated and condemned.
On August 24, activist-lawyer Prashant Bhushan refused to offer an apology to the Supreme Court for his two tweets against the judiciary, saying that the same represented his bonafide belief. He said that issuing an apology for what he said were an expression of his beliefs would be “insincere and contemptuous”.
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 system suffer? Why is it that you can say anything against retired judges”justice Mishra asked.
Earlier, Attorney General KK Venugopa had also requested the court to close the case against Prashant Bhushan after reprimanding him.
“Your lordships should warn him and tell him not to repeat it in future. But do not punish him”Venugopal said.
Justice Mishra then said,
“But he doesn’t think whatever he did was wrong. He did not submit an apology…What to do when someone does not think they did something wrong?”
The AG then reminded the Bench of the time he had proceeded against Prashant Bhushan in connection with the Rafale case.
“He (Bhushan) expressed regret and then when I read it, I thought we should not proceed with contempt and I withdrew the same because he expressed regret…it will be a great service if Your Lordships take a compassionate view and leave it there.”
Justice Mishra went on to say,
“When Mr. Bhushan does not think he did anything wrong then what is the point of giving him advice to not repeat it?”
When the AG pointed out the good work Prashant Bhushan has done by filing PILs before the Court, Justice Gavai remarked,
“PILs and all is good work but when it came to you, even you filed a contempt…
…You withdrew it only after he expressed regret. But that’s not the case here.”
Justice Mishra added,
“There are very serious statements made. They are asking us to consider his defense during sentencing…He has made so many remarks. Even in the Ramjanmabhoomi case…Only one of those judges has retired.”
When Venugopal said that Prashant Bhushan would not do it again, the Court replied,
“Let him say that. But he then instead of that he gave colour to those tweets.”
Venugopal then suggested that Prashant Bhushan’s response be taken off record. However, Justice Mishra said,
“Everyone is criticizing us that we have not considered his response and the AG is saying take his response off the record… Now if this is removed, we will be blamed that we removed his response on our own.”
Justice Arun Mishra
The Bench went on to refer to a statement made by Prashant Bhushan saying that the “Supreme Court has collapsed”.
“Isn’t that objectionable?”, asked Justice Mishra.
Referring to the various allegations made by Prashant Bhushan in his filings, Justice Mishra said,
“Which judge is left out, sitting or retired?”
The Court then broke for lunch.
When the hearing resumed, Dhavan made submissions on behalf of Bhushan. He began by stating,
“I wear two hats, one I represent my client, and second is my duty towards the Court. My duty towards Court is not synonymous to the duty towards the client.”
Dhavan then criticised the Supreme Court’s order allowing Bhushan time to reconsider his statements and apologise.
“This is not what the Supreme Court does – ‘we give you so many days, tender an apology’. This is wrong jurisprudence, no court can pass an order like this”, Dhavan argued.
“When your Lordships retire or even when you don’t retire, there will be articles saying that the Court decided some cases correctly or some cases incorrectly. They can’t be stopped. Court can survive only on responsible criticism.”
Dhavan then made it clear that there is no question of excising the affidavit filed by Bhushan. He thus sought a recall of the Court’s August 14 judgment finding Bhushan guilty of contempt.
When the Bench sought his views on what action should be taken against Bhushan, Dhavan said,
“AG said reprimand, I’m saying a general message should go out.”
Dhavan went on to ask the Court not to make Bhushan a “martyr” by punishing him.
“We don’t want a string of controversies after this with articles either calling Bhushan a martyr or others applauding the Court’s decision. We only want this case and controversy to end and this can be closed only with judicial statesmanship.”Rajeev Dhavan
When the Court sought the views of Senior Advocate CU Singh on what course of action should be taken, he agreed with the AG’s view that that the judgment may be, retained but Bhushan may not be punished.
An emotive Justice Mishra went on to say,
“We’re not separate from Bar, we have come from the Bar only. After doing every sacrifice, what do we obtain? We cannot go to Press…You are part of the system, you cannot destroy the system. We have to respect each other.”
The Bench ultimately reserved its verdict in the matter, and thanked all counsel who appeared.