The Supreme Court on Tuesday said it was “painful” to read advocate Prashant Bhushan’s statements and justifications in connection with the contempt of court case against him for his tweets on the judiciary, Live Law reported. “This is not the way a senior lawyer like Bhushan over 30 years of experience should behave,” Justice Arun Mishra observed.
The Supreme Court reserved its verdict on Bhushan’s sentencing.
Bhushan was held guilty of contempt of court on August 14. Earlier in the day, the court had given Bhushan and his lawyer 30 minutes to “think over” his statements.
“Going to press, making a tweet by a lawyer of a standing of Bhushan carries some weight,” Mishra said. “It affects the public. We welcome fair criticism. But we cannot go to press to respond to criticism.... That is the ethic we have to observe.”
The case pertains to two tweets posted by Bhushan on June 27 and 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.
During the hearing on Tuesday, advocate Rajeev Dhavan, appearing for Bhushan, referred to the first tweet and claimed that Bhushan was not trying to suggest the top court did not work, but was “commenting on the prioritisation of cases”. “If Bhushan’s statement is read as a whole, it says he has the highest respect for the judiciary but has a critical opinion about four chief justices,” the advocate said.
Dhavan added that the Supreme Court “will collapse if it does not face severe criticism”. “[The] Court is not immune from criticism,” he said. “It is the responsibility of all of us to make responsible criticism.”
The advocate said the top court’s August 20 order that stated the it will only accept an “unconditional apology” from Bhushan “is an exercise of coercion”. “Your lordships cannot question his statement,” he added. “He [Bhushan] says he is an officer of the court and that he expressed his sincere belief.”
On August 20, the Supreme Court had rejected Bhushan’s request to adjourn the hearing on the quantum of punishment in the criminal contempt case in which he was convicted last week and transfer it to another bench. The court had given the lawyer two to three days to reconsider his statements about the court and chief justice.
Dhavan urged the court to not “make Bhushan a martyr”. He said the only way to close the case is by letting off Bhushan with a warning and asking him to be “a little restrained in the manner in which he criticises the court, and be sure on facts” in the future.
He said the top court should recall the suo motu verdict, as it “contains half-truths and contradictions”.
Attorney General KK Venugopal said Bhushan, who has refused to apologise for his tweets, should be let go with a warning. “Let him go with a warning to tell him “please don’t repeat this in future”,” Venugopal told the Supreme Court. He pointed out that several sitting and retired judges had commented upon corruption in the higher judiciary.
Earlier, the court had asked Venugopal what is to be done. “We expected a different statement,” the court had said referring to Bhushan’s refusal to apologise.
Justice Mishra asked what was wrong in seeking an apology. “Tell us, what is wrong in using the word apology?” he asked. “Will that be reflection of guilt? Apology is a magical word, which can heal many things... If you have hurt anybody, you must apply balm. One should not feel belittled by that.”
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.
On August 19, Bhushan had moved the Supreme Court seeking to defer the next day’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 told the top court on Monday that his tweets were a constructive criticism of the judiciary and that retracting his statement or offering an insincere apology would amount to “contempt of my conscience”. “An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be made sincerely,” Bhushan said. “This is especially so when I have made the statements bonafide and pleaded truths with full detail which have not been dealt with by the court.”
Following the August 14 judgement, more than 3,000 members of civil society including former judges, retired bureaucrats, journalists and lawyers criticised the Supreme Court’s order. Over 1,800 members of the bar have also criticised the Supreme Court’s decision, besides Opposition leaders, lawyers, and human rights organisations.
Meanwhile, the top court Tuesday referred a 2009 contempt case against advocate Prashant Bhushan to an “appropriate bench” that will take up the matter on September 10. The case is related to Bhushan’s interview to Tehelka magazine 11 years ago in which he made allegations of corruption in the Supreme Court and said half of the previous 16 chief justices were corrupt. The contempt of court case was filed by advocate Harish Salve.