The Supreme Court on Thursday rejected lawyer Prashant Bhushan’s request to adjourn the hearing on the quantum of punishment in a suo motu criminal contempt case in which he was convicted last week and transfer it to another bench. The court gave the lawyer two to three days to reconsider his statements about the court and chief justice.
Bhushan, represented by advocate Dushyant Dave, requested the court to adjourn the hearing and said he intended to file a review petition against the August 14 judgment within the stipulated 30 days time as provided under Order 47 of the Supreme Court Rules of 2013.
A bench of Justices Arun Mishra, BR Gavai and Krishna Murari said sentencing will not be implemented till the review petition is decided. “Don’t worry, we will be fair to you...Even if you are not fair to us,” Mishra said. “We assure you will not do anything to defeat your right of review. We are not proposing to defer the sentence hearing.”
Gavai claimed it appeared that Bhushan will file the review only after one of the judges in the bench retires. He was purportedly referring to Mishra, who will retire on September 3.
He also rejected Dave’s request that the matter of punishment in the case be considered by a different bench. “Heavens are not going to fall if your lordships defer the hearing till the review is decided,” Dave told the court, according to Live Law. “It is not necessary that this very bench should consider the sentence.”
Advocate Rajeev Dhavan, also representing Bhushan, told the judges that their verdict in the case would be severely criticised by academics. “About 20 pages is a clear cut and paste from Vijay Kurle case,” he added.
The lawyer cited the coal block allocation case, Orissa mining case, Foreign Contribution (Regulation) Act case and various other corruption cases which Bhushan brought before the Supreme Court. “Take all these cases together to see if this person is simply attacking the court or is he a worthy advocate of this court,” he asked. “Your lordships must examine the person. Because that goes into the roots of the bona fides. Tweets are transient in nature.”
Justice Mishra said there was a need to exercise balance and restraint. “You are part of the system,” he said. “In zeal of overdoing, you cross the lakshman-rekha [prescribed limits]. Nobody should cross. Doing good things is welcome. We appreciate efforts of filing good cases. I have not taken contempt against a single person in my judicial career. Balancing and restraint are issues.”
The judge added that the institution’s interest had to be protected, just like the counsel’s.
Rajeev Dhavan questioned how Bhushan’s tweet about a photograph of Chief Justice of India Sharad A Bobde astride a bike, without a mask, affected the court’s functioning and what they found in Bhushan’s tweets to be a “scurrilous attack”. Mishra told him that the court proceeded on the basis of the tweets and not the complaint.
It must be shown that that the act of contempt must “substantially interfere with the administration of justice”, Dhavan said, while referring to Section 13 of the Contempt of Courts Act.
When asked by Mishra if the court should give Bhushan time to reflect on his statement, Attorney General KK Venugopal said it would be “tremendously good” if the court decided to do so. However, Bhushan told the court that it was unlikely there would be any substantial changes in his statement. But, he added that he would consult his lawyers. He added that his statement was “well-considered and well thought of”.
“We will give you two-three days time,” Mishra responded. “Think [it] over. You must think over. We should not give verdict right now.”
The court permitted Dhavan to complete legal arguments today and the bench suggested purging of contempt. “We do not enjoy punishing individuals,” Mishra said. “The purpose of sentence, for me, is deterrence. Mistakes can be committed by anyone. In such a case, person must realise that and admit to it...When it comes to sentencing, we can be lenient only when the person tenders apology and realises the mistake in the real sense.”
Justice Gavai said there has to be mutual respect between the bar and the bench. “We have faith in the institution,” Dhavan said. “I do. So does Bhushan.”
During the hearing, Bhushan also addressed the court and said he was “pained” by their judgement. “I am pained that I am grossly misunderstood,” he added. The lawyer told the judges that open criticism was necessary in any democracy to safeguard the constitutional order. “Saving the constitutional order should come before personal or professional interests,” he added. “My tweets were a small attempt to discharge what I consider my highest duty.”
Bhushan added that it would be contemptuous on his part to apologise. “My tweets were out of a bona fide attempt to discharge my duty as a citizen,” he said. “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.”
The case pertains to two tweets of Bhushan’s from June 27 and June 29. The first tweet commented about an undeclared emergency and the role of Supreme Court and last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying a Harley Davidson superbike in his hometown Nagpur during the coronavirus outbreak.
On Wednesday, Bhushan had moved the Supreme Court seeking to defer Thursday’s proceedings to announce his punishment till a review petition was filed and considered. In his application, the lawyer said he wanted to file a review petition after seeking legal counsel and studying the August 14 order in detail. Bhushan also pointed out that the court can stay contempt verdicts when such review pleas are pending. Failing to provide a chance for the lawyer to file a review plea would be in violation of his fundamental rights, the application said.
In the August 14 verdict, the court had said the magnanimity of judges cannot be stretched to the extent that it “may amount to weakness in dealing with a malicious, scurrilous, calculated attack” on the judiciary. This was in response to Bhushan’s statement that that the judges needed to be magnanimous and not use the contempt of court law for remarks on individual judges or on fair criticism of the judiciary. The court, however, said allegations against the Supreme Court may lead to a loss of faith in the judiciary and of confidence among other judges.
Following the judgement, more than 3,000 members of civil society including former judges, retired bureaucrats, journalists and lawyers criticised the Supreme Court’s order. The signatories said that expressing concern about the functioning of the judiciary was the fundamental right of every citizen. The signatories included former Supreme Court judges Ruma Pal, B Sudershan Reddy, Madan B Lokur, activist Harsh Mander and historian Romila Thapar.
But, the Bar Council of Maharashtra and Goa on Wednesday unanimously passed a resolution to support the Supreme Court’s decision to hold lawyer Bhushan guilty of criminal contempt.