With advocate Prashant Bhushan, convicted of criminal contempt of court over two tweets he posted this June, refusing to apologise, the Supreme Court Tuesday expressed anguish over his criticism of “sitting and retired” judges.
The bench of Justices Arun Mishra, B R Gavai and Krishna Murari, while considering a supplementary statement filed by Bhushan, said criticism is welcome, but one “should not attribute motives to judges” since they cannot go to the press to defend themselves and “can only speak through our judgments”.
The bench reserved its order on the quantum of punishment for Bhushan.
On August 14, it had held him guilty of contempt of court for two tweets which it said were based on “distorted facts”, constituted a “scurrilous/malicious… attack” on the “entire Supreme Court”, and had the effect of “destabilising the very foundation” of the judiciary.
“Which judge is left out, sitting or retired,” Justice Mishra asked Attorney General KK Venugopal, referring to criticism by Bhushan. “He has made so many remarks… Even in the Ramjanmabhoomi case… Only one of those judges (who delivered the judgment) has retired… He is targeting sitting judges also. How can they defend?”
Justice Mishra said it is “painful” to hear such comments every day. “This is not expected of a lawyer like Bhushan with 30 years of experience… This is something derogatory. Very disparaging comments have been made against this court,” he said.
Deprecating the practice of some lawyers running to the press even on pending matters, Justice Mishra said judges, however, cannot go to the press to defend themselves. “That’s the oath we are under… We can only speak through our judgments,” he said.
“If you are going to the press for everything… you are overidentifying with the cause… You can criticise, but do not attribute motives,” he said.
The bench said it will not be influenced by opinions appearing in the media about the case.
“Let us not get into comments. We should not be affected by anybody’s comments that are coming in the media etc… we cannot go on like that. When we have a judicial process of decision-making, we cannot go into… by all these opinions… We cannot be influenced by all these factors… if we do, we will be failing in our duties,” Justice Mishra said.
“What the AG says is relevant, what (senior advocate) Rajeev Dhavan (appearing for Bhushan) says is relevant for us, and not what comes in papers,” he said.
He made these remarks when Venugopal pointed out that even former judges like Justice Madan B Lokur and others had come out in support of Bhushan’s views on the judiciary.
Venugopal, who had urged the court during the last hearing to spare Bhushan of any punitive action, reiterated this Tuesday. But he said Bhushan must “express regret” and “withdraw in entirety” the “allegations” in the affidavit he filed in his defence.
Justice Mishra also sought to know “what is wrong in an apology if we have hurt somebody”.
At this, Venugopal said: “Perhaps he feels it’s an admission of guilt.”
In an apparent reference to Bhushan’s statement, Justice Mishra said: “You go to the extent of quoting Mahatma Gandhi, then what’s wrong in apologising… Gandhi used to do that… If you have hurt anybody, you must apply balm to it.”
Justice Gavai added: “Mr AG, Gandhi used to fast not for himself, but for the sins of others.”
“It’s not my job to advise, you have known him since he was a child. It’s your job to advise him. I leave it to you and Dhavan,” Justice Mishra said.
Justice Gavai asked Dhavan for his views on litigants giving interviews on sub-judice matters and speaking about it at webinars etc.
Dhavan said he was against it and believed that anything that has to be submitted to court should not be pre-released.
Justice Mishra said: “We have not prevented fair criticism… Everybody is criticising the Supreme Court. Have we taken any action?”. He pointed out that the Supreme Court had not taken any action for the last 11 years in the 2009 contempt case against Bhushan.
Turning to Venugopal, Justice Mishra said “you should be impartial… As Attorney General for India, how do you consider this… How will SC speak except through judgments?”
“When judges are speechless, who will protect them? Only the Bar will protect them. The Attorney will protect them.” He said the Bar and Bench have a responsibility to fight together, that the institution will suffer if they draw daggers at each other.
Earlier, Venugopal told the bench, “We have serious statements made by former judges about the Supreme Court having failed democracy… I also have a complete list of former SC judges making comments about corruption in the judiciary.”
Referring to critical remarks against the court, the AG said “these statements are telling the court to reform. They seek the improvement of the administration of justice”.
He said Bhushan’s case “is one where your Lordships should forgive him or perhaps warn him… It is not necessary to punish him.”
“The court should warn, advise Bhushan if necessary, and let him go. That will be appreciated as a compassionate view,” Venugopal said.
Asked what punishment he proposed for Bhushan, the AG said: “Your Lordship should tell him: please don’t repeat this.”
At this, Justice Mishra said: “But if Bhushanji is not having any inkling that he has done anything wrong, what effect do you think such advice will serve?”.
“He is not apologetic… He says he has the highest respect, and in the process he has said all this… If we feel we are perfect, then we are wrong… a mistake is always a mistake… The person should be able to realise it,” he said.
Justice Gavai added “we gave him three days for this”.
The bench also posed questions to Venugopal about his 2019 plea seeking contempt action against Bhushan for his tweets in a matter relating to the appointment of IPS officer M Nageswara Rao as interim Director of CBI.
Venugopal said he did not press the matter after Bhushan said he had made a genuine mistake. He said the court should let Bhushan go if he expresses regret.
“But you filed… And you withdrew only when he apologised,” Justice Gavai reminded the AG.
The bench then took Venugopal through the contents in Bhushan’s affidavit. “He says the court has collapsed. Isn’t that objectionable,” asked the bench.
Venugopal said Bhushan should “withdraw this in entirety” and also express regret. He said Bhushan had expressed regret in the 2009 contempt case and could do so in this case too.
Dhavan told the bench that the order asking Bhushan to tender an unconditional apology “was nothing but an exercise in coercion”. He said Bhushan was “very troubled about what happened in this court in the last six years”.
On the statement issued by Bhushan, he said “read in total, it says I have the highest respect for judiciary”. He said the court should be open to criticism. “It’s on the basis of this criticism that the Constitution has been reinterpreted… It’s the duty of all to make responsible criticism… This court can only survive on the basis of strong criticism,” he said.
The affidavit submitted by Bhushan, Dhavan said, must remain on record and not be taken off as it is the basis of his defence.
“Should he be reprimanded? If your Lordships tell him you should not do this again… he is entitled to ask, what is it that I should not do again,” Dhavan said.
“He is an officer of the court… You can tell him we may not be with you on many points… That will go out in a statesmanship-like way than telling someone we punish you… may be, caution the Bar to be a little restrained in the manner they criticise the court… based more on facts,” he said.
“Please don’t make him a martyr. After Babri Masjid was demolished, there were crowds to welcome Kalyan Singh. So don’t make him a martyr… We don’t want this controversy to continue… there will be another line of articles in the media that Bhushan is a martyr, and another set saying he must be punished,” Dhavan said.
“So not only should the case be closed, the controversy should also be closed, and that requires judicial statesmanship,” he said.
Meanwhile, the bench adjourned hearing in the 2009 contempt case against Bhushan until September 10 with Justice Mishra stating that a new bench will take a call since he is demitting office soon.
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