The Supreme Court on Thursday, 20 August, gave lawyer-activist Prashant Bhushan till 24 August to ‘reconsider’ a remarkable statement made by him in which he said his critical tweets about the judiciary, found contemptuous by the court, were an attempt to discharge his duty to speak up, and that he does not ask for mercy.
While accepting any penalty the judges wished to impose on him, Bhushan said that:
“I am shocked that the court holds me guilty of ‘malicious, scurrilous, calculated attack’ on the institution of administration of justice. I am dismayed that the Court has arrived at this conclusion without providing any evidence of my motives to launch such an attack.”
On 14 August, an apex court bench of Justices Arun Mishra, BR Gavai and Krishna Murari had held that two recent tweets by the public interest lawyer and activist about the judiciary amounted to criminal contempt. They had not decided the penalty for this on the day, scheduling a hearing on sentencing for 20 August.
Bhushan made the statement to the court during this hearing, following which the judges asked him to reconsider it, before they would decide on whether to penalise him or not.
“We will give you 2-3 days time. You must think it over. We should not give the verdict right now,” Justice Arun Mishra said. Bhushan replied that his statement was “well-considered” and he did not think it likely he would change his statement, but agreed to think it over.
The court order has now specified that Bhushan has till 24 August to submit an unconditional apology if he so desires. If such an apology is provided, then the case will be listed before the court on 25 August for consideration.
CAN’T BE LENIENT IN SENTENCING UNLESS BHUSHAN ADMITS MISTAKE: SC
The hearing was an extraordinary one, featuring powerful statements from Bhushan’s lawyers on truth as a defence for contempt, and what appeared to be an admission by the judges that they had not referred to the entirety of Bhushan’s detailed affidavit replying to the allegation of contempt.
In an interesting turn of events, Attorney-General of India KK Venugopal – who had not been heard by the court previously despite being issued notice in the case – came out in support of Bhushan.
First, he suggested to the judges that they should not punish Bhushan, and later, while arguments on whether Bhushan’s criticism of the court was bona fide, he noted that several retired judges had made statements saying the same things as the lawyer in the dock.
The judges informed Venugopal that they could not accept his suggestion that Bhushan should not be punished unless he rethinks his statement, which they said they would have to assess as “a defence or an aggravation”.
The judges concluded the hearing after noting that despite Bhushan’s long record of service and the many good causes he had fought for over the years, they could not be lenient in their sentence unless he realised he had made a mistake and admitted this.
“When it comes to sentencing, we can only be lenient when the person tenders apology and realises the mistake in the real sense,” Justice Mishra said.
Earlier in the hearing, Bhushan’s lawyers Dushyant Dave and Rajeev Dhavan had noted all the cases where Bhushan had fought pro bono for good causes, including the coal scam, 2G, FCRA cases, corruption cases. They argued that the court had to consider these to decide whether Bhushan had acted in a bona fide manner, which was essential to determining sentencing.
Although the judges rejected an application by Bhushan in which he had requested them to defer the sentencing till after his review petition against the court’s decision on contempt was heard, they assured him that if any sentence is passed against him, it would not be activated until his review petition had been decided.
Bhushan has not yet filed the review petition, for which he has 30 days from the date of the verdict.
COURT ADMITS TO NOT READING BHUSHAN’S REPLY FULLY?
During the hearing, Bhushan’s lawyers noted that Section 13 of the Contempt of Courts Act 1971 expressly states that a person should not be punished for contempt unless the court is satisfied that the contemptuous actions in question substantially interferes with the administration of justice – which they argued wasn’t the case with Bhushan’s tweets.
“These proceedings have attracted more attention than the original tweets themselves, which were transient,” Dhavan quipped.
They also noted that Section 13 of that Act allows a person to argue truth as a valid defence if this is in the public interest, and the request for invoking this is bona fide.
It was during the discussion on this that Dhavan noted that Bhushan’s reply affidavit, in which he had explained why his criticisms were bona fide, “was simply not taken into account,” according to Live Law.
In what came as a major shock, the judges then appeared to admit that they had not referred to the entirety of the affidavit. Justice Mishra claimed Dave had argued parts of the affidavit during the main hearing in the case on 5 August, and told the bench to ignore the rest, while Justice Gavai said that Dave had only referred to the contents till para 40 of the affidavit.
Justice Gavai admitted that the earlier part of the affidavit referred to by Dave had been taken into account, but not the rest.
Dhavan retorted that what Dave had actually said was that it would be “embarrassing” to read the rest of the portions of the affidavit, not that it should not have been referred to.
In the 142-page affidavit, Bhushan had provided detailed reasons supporting his belief that the Supreme Court had played a role in the destruction of democracy in the last six years, and why he felt CJI Bobde’s decisions on how the court would operate during lockdown had led to a denial of access to justice.
The last 87 pages were spent on the claim about destruction of democracy, including a list of all the controversies at the court during the tenures of the last four Chief Justices of India.
Dhavan then proceeded to refer to parts of that affidavit, including the allegations against specific Chief Justices, but Justice Mishra asked him to stop taking names. When Dhavan continued without mentioning the names of the judges, Justice Mishra said that the court had not wished to go into “all this” and asked him to move on.
It was immediately after this that the judges decided to give Bhushan time to rethink his statement. Dhavan later also tried to bring up the issue of Bhushan’s opinion being bona fide when the judges were suggesting he should apologise, but again Justice Mishra asked him not to go into the reasons for the same, especially when Dhavan noted that former judges of the Supreme Court such as Justice Madan Lokur have supported Bhushan.
This was the same point that Venugopal also tried to raise with the judges, when he said that he had a list of five Supreme Court judges who had said democracy was under threat and nine judges who had said there is corruption in the higher levels of the judiciary, as reported by Bar and Bench.
However, he was abruptly cut off by the court when trying to do so, with Justice Mishra saying they were not hearing him on merits. The hearing ended after this.
(With inputs from Live Law, Bar and Bench)