Noted civil rights lawyer Prashant Bhushan on Thursday turned down an offer from the Supreme Court to “unconditionally apologise” to a Bench led by Justice Arun Mishra, but admitted he made a “genuine mistake” in his February 1, 2019 tweets claiming the government misled the apex court about the appointment of M. Nageshwar Rao as interim CBI Director.
In turn, the Bench of Justices Mishra and Navin Sinha decided to go ahead and pass orders on an application by Mr. Bhushan, through his counsel and senior advocate Dushyant Dave, seeking Justice Mishra to recuse from hearing the back-to-back contempt petitions filed by Attorney-General K.K. Venugopal and the Centre for his tweets.
The Bench would also consider a second application filed by Mr. Bhushan to recall a February 6 order in which contempt notice was issued against him. The same order had seen the Bench agree to examine the possibility of imposing curbs on advocates and litigants from airing their views in the media , including social media platforms like Twitter, about pending cases.
Justice Mishra said if a lawyer has grievances with the administration of justice by a court, he should return to the court with his queries rather than voice them in the media. “This is troubling all of us as an institution. This is happening in all cases of importance. Motives are attributed to judges,” Justice Mishra observed.
Senior journalists like N. Ram, Arun Shourie, author Arundhati Roy, activist Aruna Roy and former chief information commissioner Wajahat Habibullah have filed intervention applications against gagging lawyers and litigants from commenting on sub judice cases. They said it would tantamount to shackling the media. Mr. Venugopal has agreed to assist the court in this issue. The hearing would start after the Holi break.
During the hearing, Mr. Venugopal submitted that the tweets were an attempt to “poison the minds of the public.” He said another contempt petition was already pending against Mr. Bhushan for his alleged comments that several Supreme Court judges were corrupt.
Solicitor-General Tushar Mehta said the recusal application was part of a “pattern.” He recalled how the Supreme Court had severely criticised Mr. Bhushan for asking Justices D.Y. Chandrachud and A.M. Khanwilkar to recuse from the Justice Loya death case because they hailed from the Bombay High Court.
However, as the hearing progressed, Mr. Venugopal sought permission to withdraw his contempt petition in the light of Mr. Bhushan acknowledging his mistake. The AG said he did not want Mr. Bhushan “punished.”
But the Bench was in no mood to let go. Justice Mishra said it was up to the court, once it has taken cognisance, to decide the future course.
The intense hearing witnessed a volley of acerbic exchanges. One such was between Justice Mishra and senior advocate Rajeev Dhavan, who appeared for the intervenors. When Mr. Dhavan picked on Mr. Mehta, Justice Mishra advised him to “keep his cool.” To this, Mr. Dhavan replied “I am cool. Fortunately, I have no blood pressure.”
“Get it checked,” Justice Mishra retorted.
“I constantly do. My Lord should get your blood pressure checked,” Mr. Dhavan said.
Justifying the plea for recusal, Mr. Dave said past judgments and observations given by Justice Mishra against Mr. Bhushan have given rise to anxiety in the mind of the lawyer of “sub-conscious bias” on the part of the judge.
“It is ultimately the test of conscience of a judge whether he should recuse or not. That is the ultimate test… A lawyer should not come to court with preconceived notions. A lawyers should not bring his philosophy to the court. He argues for his client,” Justice Mishra observed.
Justice Mishra prima facie said he had no intention to recuse. The judge referred to his January 28 judgment in Muthukrishnan vs. Madras High Court wherein he had held that attributing “political colours” to judges amounted to sheer contempt — a power wielded rarely by judges like the ‘Brahmastra.’
“We are not against criticism. We do not want the Bar to be sycophantic. But in any civilised society, the judiciary should be able to function independently if rule of law is to prevail and if the system has to survive,” Justice Mishra addressed Mr. Dave.
“But the apprehension (of bias) is to be seen from the mind of the litigant, not from the mind of the court,” Mr. Dave submitted.
