Decision on awarding punishment deferred, AG urges SC against sentencing
Advocate Prashant Bhushan’s contempt case took a queer turn on Thursday when the Supreme Court deferred its decision on awarding him punishment and asked him to reconsider his statement on the proceedings. Interestingly, Attorney General KK Venugopal also asked the court not to proceed against Bhushan, who refused to tender an apology.
The Bench had found him guilty of contempt of court for his tweets criticising Chief Justice of India SA Bobde and the judiciary posted earlier this year.
The court sought an unconditional apology from Bhushan by August 24. “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, an apology is submitted, the case to be posted for consideration on the same, on 25.08.2020,” the court said.
“There is no person on earth who cannot commit a mistake. You may do hundreds of good things but that doesn’t give you a licence to do 10 crimes. Whatever has been done is done. But we want the person concerned to have a sense of remorse,” said Justice Arun Mishra.
In its suo motu contempt case against Bhushan, while the apex court Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari, gave the lawyer four days’ time to reconsider his statement on the proceedings, the advocate refused to blink and seek court’s “mercy.”
Thousands of lawyers, civil right activists and retired judges have appealed to the Supreme Court not to proceed with any punitive action against Bhushan.
On Thursday, the Human Rights Committee of England and Wales (BHRC) expressed concern over the SC’s decision to hold Bhushan guilty of contempt of court.
The BHRC defended the right of the lawyers to criticise the institution and to exercise their right to freedom of speech in the process. The BHRC asked the Supreme Court to review this decision and discharge Bhushan of this charge. Incidentally, the UK abolished the statutory offence of criminal contempt of court in 2013.
In his statement filed in response to the August 14 verdict holding him guilty of contempt, Bhushan quoted Mahatma Gandhi, saying, “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.”
When the court started the hearing in the matter for awarding sentence to Bhushan, Senior Advocate Dushyant Dave, appearing for Bhushan, requested it to adjourn the case as Bhushan was going to file a review petition against the court’s August 14 verdict.
“If that can be reviewed, this (sentencing) can also be reviewed,” Justice Mishra said, rejecting the plea.
Dave then responded, “If that (conviction judgment) is reviewed, then sentencing will become infructuous.”
“In the event we decide to impose any kind of punishment, we assure you that it won’t be in operation till the review is decided. Don’t worry, we will be fair to you... Even if you are not fair to us,” Justice Mishra added.
At this point, Justice Gavai said it seemed that the review will be filed after one of the judges on the Bench retires. Justice Mishra retires on September 2.
But Dave countered him, saying, “Review can be filed within 30 days. Let the impression not go that review will not be filed till Justice Mishra retires...Every order of Justice Mishra can be reviewed, but that does not mean that review has to be filed before Justice Mishra retires. There is a statutory limit of 30 days.”
Dave went on to add, “Heavens are not going to fall if the sentencing is deferred till the review is decided. It is not provided in the law that it has to be decided by the same Bench.”
Refusing to defer the hearing, Justice Mishra said, “A sentencing is a continuation of him being found guilty. Will it be appropriate if another Bench decides on sentencing? Suppose I was not demitting office, then would it be appropriate for another Bench to decide on sentencing?”
At this point, Bhushan read a statement on the court’s verdict finding him guilty of contempt. The statement read: “I am pained at the verdict that the court held me guilty. I am pained that I am grossly misunderstood. I am shocked that the court arrived at the conclusion without providing any evidence about my motives....I believe that open criticism is necessary in any democracy to safeguard the constitutional order. Saving the constitutional order should come above personal or professional interests. My tweets were a small attempt to discharge what I consider my highest duty...I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose...”
Bhushan went on to say that his tweets were out of a bona fide attempt to discharge his duty as a citizen. “I would have been failing in my duty if I did not speak up at this juncture of history. I submit to any penalty which the court may inflict. It would be contemptuous on my part to offer apology...”
Senior advocate Rajeev Dhavan then addressed the court, arguing that in contempt cases, the nature of the contemnor, as well as the nature of the offence have to be considered.
Justice Mishra then said, “You want us to balance, the court is for balance, if we don’t balance the whole institution will be destroyed. But if counsel’s interest has to be protected, at the same time the institution also has to be protected. You all are part of this institution, this system...
...Sometimes in zeal, you cross the lakshman rekha. We appreciate the cases and the work and efforts for good cases. In my entire judicial career, I have never held any one person guilty of contempt.”
Dhavan went on to argue that for contempt proceedings to be invoked, it has to be shown that a statement causes a substantial interference in the functioning of the justice delivery system. Referring to Bhushan’s first tweet on CJI Bobde on the motorbike, he asked, “How can a lawyer’s tweet about CJI not wearing a mask affect the functioning of the court?”
When Dhavan referred to Bhushan’s affidavit and pleaded that truth is an absolute defence in defamation and contempt cases,, the Bench sought Attorney General KK Venugopal’s views on the statement made by Bhushan and whether he should be given more time. The AG said that it would be “tremendously good” if the court gave Bhushan time.
But Bhushan was not inclined to seek the court’s indulgence and said, “It is unlikely that there will be substantial change in my statement”, he said.
The court then said, “We can give you time and it is better if you consider it. Think over it...we will give you 2-3 days time.”
Senior advocate Rajeev Dhavan then argued that the court has not spelled out any reasons on how the tweets were “scurrilous”. “The conclusion was reached without considering the justification of Prashant Bhushan. Dave did not want to embarrass the court (by going into the details of the affidavit).”
Dhavan pointed out that retired judges and thousand of lawyers have supported Bhushan’s and asked the court, “Are they in contempt too?”
At this stage AG Venugopal requested the court not to punish Bhushan. On this, Justice Mishra asked him to consider the entire case and then make submissions after 2-3 days.
The AG said, “I have a list of nine judges who had said that there is corruption in the higher levels of the judiciary. I had myself said it in 1987...”
The court ultimately gave Bhushan 2-3 days to reconsider his statement made in response to the August 14 verdict.