The Supreme Court on Thursday asked civil rights lawyer Prashant Bhushan to take “two or three days” to “reflect on”, and possibly modify, a statement that he read out to judges , in which he refused to apologise for his tweets.
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One tweet was about a photograph of Chief Justice of India (CJI) Sharad A. Bobde astride a bike and another on how posterity would perceive the role played by the apex court in the past six years.
On August 14, Mr. Bhushan was found guilty of contempt by scandalising the court.
Thursday’s one-page order said the hearing in the case had concluded and the court reserved its decision on his sentence. It, however, gave Mr. Bhushan time till August 24 to submit an “unconditional apology, if he so desires”. The case would be posted on August 25 if an apology is submitted, it stated.
The three-judge virtual Bench led by Justice Arun Mishra wrapped up the oral arguments on Mr. Bhushan’s punishment.
Mr. Bhushan said he shall cheerfully submit to whatever punishment the court imposed on him. The tweets embodied his bona fide belief. It would be contemptuous on his part to apologise for something he believed in.
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Quotes Mahatma
The senior lawyer quoted Mahatma Gandhi asking for neither mercy nor magnanimity from the judges. He said he was neither a cheerleader nor a courtier. He had, after all, served for 30 years as a humble guard of the court’s majesty.
But the Bench persisted, asking him to “think over” his statement. He politely agreed but observed that he may not at the end make any substantial changes in its text. “The statement I made is well thought-out and considered”, he submitted.
Attorney General K.K. Venugopal, in the capacity of his constitutional office, urged the court not to punish Mr. Bhushan . “He has done tremendous amount of public good... You have convicted him but do not punish him”, he said.
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Justice Mishra replied, “He might have done a lot of good but he should not cross the Lakshman Rekha... We can be very, very lenient, but only if the person tenders an apology in the real sense”.
Mr. Venugopal said, “I have before me a list of five judges of the Supreme Court who said democracy has failed. I have a list of nine judges who said there is corruption in higher judiciary. Of this, two made statements while in court and seven immediately after they retired. I myself gave a speech...”.
Justice Mishra intervened, “we are not hearing a review. Our judgment stands”. At one point early in the hearing, he said the court would inflict punishment on Mr. Bhushan only after his review petition is decided. Besides, the lawyer’s professional profile would weigh in while considering the suitable punishment.
“You may not be fair to us but we will be fair to you”, Justice Mishra said.
Dismisses Dave’s plea
The Bench refused a plea by senior advocate Dushyant Dave to defer the sentence hearing till Mr. Bhushan files a review and it is decided.
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Senior advocate Rajeev Dhavan, also appearing for Mr. Bhushan, reminisced that the “last six years have indeed been very difficult for the court and very difficult for lawyers. One day, history will look at these years again and again and again”.
Justice Mishra reacted, “We are not astrologers. That is for the future to decide”.
Mr. Dhavan said, “Exactly, and that is what Bhushan has tweeted”. He argued that the court did not really explain how it found Mr. Bhushan guilty of mounting a “malicious and scurillous attack”, which “destabilised the very foundation of this important pillar of Indian democracy”.
Justice Mishra responded, “We have taken contempt only on the tweets, nothing else”.
Mr. Dhavan submitted, “But tweets are transitory. They are like fireflies in the night. Explain what you found in the tweets which was a substantial interference with law? Truth is an absolute defence”.
Balanced criticism
To this, Justice Mishra said criticism should be balanced and not aimed to “destroy the institution”.
“We do not punish for contempt so easily. Balancing has to be there, restraint has to be there. There is a Lakshman Rekha for everything. Why should you cross the rekha? Doing good things is welcome. We appreciate all those efforts? But why is balancing forgotten?”, he observed.
Mr. Dhavan replied, “Balancing should be found in Your Lordships' judgment. Balancing is also there in Article 19 [right to free speech and expression] of the Constitution”.
The judgment convicting Mr. Bhushan would suffer severe criticisim when it reached the legal academies, he said.
Justice Mishra retorted, “We always welcome fair criticism”.
