Supreme Court urges rethink, Prashant Bhushan stands firm: no apology, my duty to future

“We have given time to the contemnor to submit unconditional apology, if he so desires. Let it be filed by 24.08.2020. In case apology is submitted, the case to be posted for consideration on the same, on 25.08.2020”, the bench of Justices Arun Mishra, B R Gavai and Krishna Murari ordered.

“I find it hard to believe that the Court finds my tweet ‘has the effect of destabilising the very foundation of this important pillar of Indian democracy.’ I can only reiterate that these two tweets represented my bonafide beliefs, the expression of which must be permissible in any democracy”, Bhushan said in the statement.

Asked if he wanted to reconsider his statements and make any amends, Bhushan told the Bench: “I don’t want to reconsider the statement…If your Lordships want to give me time, I welcome. But I don’t think it will serve any purpose…It is not very likely that I will change my statement”.

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The reply came as the bench repeatedly asked him whether he would like to look into his statement and make amends.

Justice Mishra remarked that the court would “like to give you time. Later on, there should not be a complaint that time was not given”.

Bhushan said his statement was “well-considered and well thought of”.

“We will give you two-three days time. Think over…You must think over”, observed Justice Mishra.

This came even as Attorney General K K Venugopal urged the Supreme Court to spare Bhushan from any punitive action. “I will request you not to punish Prashant Bhushan”, Venugopal told the court.

Justice Mishra told the AG “please don’t argue on merits” and said it had never punished anyone without following due procedure.

“We cannot consider your proposal unless he rethinks his statement…You please first go through his reply. Consider if that’s a defence or an aggravation…Read it and then tell us what we should do,” Justice Mishra added.

Turning to Bhushan’s counsel Senior Advocate Rajeev Dhavan, Justice Mishra continued: “Mistake can happen from anyone…But the person should admit the mistake”.

The AG then added: “I have a list of five retired judges of Supreme Court who said democracy has failed in SC. At least, nine former judges have said there is corruption in higher judiciary”.

Intervening, the Bench said the conviction order is already there and it is not hearing a review petition.

Later, Venugopal clarified that he was not speaking on behalf of the government but responding to the notice issued to the office of the AG. Incidentally, Thursday’s court order does not mention the presence of the AG in the proceedings.

Earlier, Bhushan read out his statement. “I have gone through the judgment of this Hon’ble Court. I am pained that I have been held guilty of committing contempt of the Court whose majesty I have tried to uphold — not as a courtier or cheerleader but as a humble guard – for over three decades, at some personal and professional cost.

“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…

“We are living through that moment in our history when higher principles must trump routine obligations, when saving the constitutional order must come before personal and professional niceties, when considerations of the present must not come in the way of discharging our responsibility towards the future.

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“I did not tweet in a fit of absent 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.

“Therefore, 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.”

As arguments proceeded, Justice Mishra asked the AG if Bhushan should be given two to three days to think and come back to the court.

Venugopal replied that it will be “good” if the court can give him some time and added that Bhushan had done some “tremendous good work” over the years.

On Wednesday, Bhushan had filed an application urging the court to defer Thursday’s hearing on sentencing until he files a review petition against the August 14 conviction and it’s decided.

Senior Advocate Dushyant Dave raised this before the bench Thursday.

However the court rejected the prayer.

“Can you argue consequential order should not be passed. Judgment will be complete only when it is totally pronounced”, Justice Mishra said and added that if the court sentenced him, “We assure you that it will not be activated until the review is decided.”

Justice Gavai said an impression should not go out that that there is an effort to avoid the bench of Justice Mishra.

Dave replied that there should also not be any impression that the bench wanted to decide the matter before Justice Mishra retires.

Justice Mishra is due to retire in the first week of September.

Dave then contended that the question of sentence should be considered by a different bench. But the court disallowed this.

“It cannot be accepted”, said Justice Gavai. Justice Mishra echoed this. “It is against established norms and procedure. Suppose if I am not demitting office, can it be ever thought of?”, he said.

Dhavan said that the August 14 judgment would be severely criticised. “Don’t worry about that. We don’t mind fair criticism,” said Justice Mishra.

Agreeing that the power to punish for contempt under Article 129 must be used only sparingly and with restraint, Justice Mishra said: “I have not taken contempt against a single person in my judicial career….Balancing and restraint are the real issues”.

As Dhavan sought to express concern about how the history of the court would be written, Justice Mishra said: “Let us leave it for the future to see what history shows. Let us not predict…”.

Dhavan said Bhushan’s comments have been supported by former Supreme Court judges Justices R M Lodha, Madan B Lokur, Kurian Joseph and Madan B Lokur and asked if they, too, were in contempt.

Justice Gavai said Justice Lodha’s comment was only about the procedure. Dhavan added that over 1000 lawyers had expressed support too. The bench said the court has taken up several cases via virtual hearings despite the lockdown.