The Supreme Court on Tuesday wondered about the consistent resolve shown by civil right lawyer Prashant Bhushan in not tendering an apology in the face of contempt, saying “you have hurt someone, you must remove the hurt”.
"What is wrong in seeking an apology? Is it a sin to apologise? Will that be a reflection of guilt? 'Apology' is a magical word which can heal. You will all go to the category of Mahatma Gandhi if you can apologise" Justice Arun Mishra asked on Tuesday.
"Mahatma Gandhi used to fast. Not for his, but for that of others’s sins," Justice B.R. Gavai said. Justice Krishna Murari, the third judge on the Bench, remained silent throughout.
Attorney General K.K. Venugopal urged the court not to punish Mr. Bhushan. He said this was an opportunity for the court to enhance its greatness through its compassion.
Senior advocate Rajeev Dhavan, Mr. Bhushan's lawyer, advised the court to not make his client a "martyr" by punishing him. “What is needed is judicial statesmanship and not mercy,” he said.
Mr. Bhushan has refused to apologise in his two statements to the court . He was found guilty of scandalising the court with his tweets on a picture of Chief Justice S.A. Bobde astride a heavy bike and the role of the court in the past six years. The lawyer said the tweets were his bona fide opinions.
In his sentence hearing on August 20, Mr. Bhushan quoted the Mahatma saying he asks for neither mercy nor magnanimity from the court.
Though the court reserved the case for deciding his punishment, it nevertheless gave him an opportunity to tender an "unconditional apology" by August 24 . But the senior lawyer, in his second statement to the court, said an insincere apology amounts to contempt of his conscience and to the institution he holds in high esteem. The hearing was scheduled on August 25 to study the "effect" of the statement.
"We expected something better [from Bhushan]," Justice Mishra said, referring to the second statement.
But Mr. Venugopal suggested the court should "warn Mr. Bhushan and let him go".
"Many sitting and retired judges have spoken about the institution in the past... It was to tell the court to look within and reform, to seek improvement for advancement of justice. No, it is not necessary to punish him," Mr. Venugopal submitted when the court asked him for guidance.
Mr. Dhavan said an effect of inflicting punishment would be "you making him a martyr".
"Look at what happened to Kalyan Singh after Babri Masjid demolition. He was punished for contempt and was seen as a martyr... Martyrdom is not what he [Bhushan] wants. We don't want this matter to continue. This controversy will continue depending on the punishment you give to Bhushan. Not only should this case be closed, but controversy should be closed," Mr. Dhavan submitted.
Justice Mishra, referring to Mr. Bhushan's statements and his reply alleging corruption by Chief Justices in the past, said "we could advice him not to commit this in the future. But he [Bhushan] has no inkling that he has done anything wrong..."
Mr. Dhavan said, he wears two hats — one as Mr. Bhushan's counsel and the other as an officer of the court.
Donning the first cap, Mr. Dhavan said the August 20 order of the court demanding an "unconditional apology" from Mr. Bhushan was "nothing but an exercise in coercion" against a senior lawyer who has done much public good.
Wearing the second hat, Mr. Dhavan said "the institution will collapse if it does not suffer criticism, if it does not suffer extreme criticism. This court can only survive on the basis of strong criticism".
Mr. Dhavan asked what the court expects by drawing a statement from Mr. Bhushan that he "will not do this again".
"Do what again? Not to criticise the court? Never to express his bona fide opinion, even if truth is his defence. That will silence him forever... No, he will always be critical. One of the court's greatest critic was H.M. Seervai... If he was asked not to do it again, Seervai would say 'I would do it again'," Mr. Dhavan argued for his client.
At one point, Justice Mishra asked Mr. Dhavan for his opinion on a suitable punishment.
Mr. Dhavan said "scandalising the court" was an ambiguous ground for contempt. Even reprimanding Mr. Bhushan would be out of place.
"Although the Attorney General says a reprimand is in order, I'll say a general statement from you is enough. There is no need for a reprimand," Mr. Dhavan submitted.
He said, an advice to maintain restraint could be included.
Justice Mishra pointed out that the court has not punished Mr. Bhushan despite "a series of contempt petitions pending".
He said judges cannot speak except through their judgments. Lawyers' are the voice of the judiciary. The Bar and the Bench cannot be at loggerheads.
"If Bar and Bench are going to destroy each other, who will have faith in this institution? Don't just attack. Judges cannot go to Press to defend themselves. You [lawyers] are our voice," Justice Mishra said.
“Criticise, but do not attribute motives to us," the judge, who is retiring on September 2, said while wrapping up the hearing.