As Prashant Bhushan seeks 'statesmanship', SC reserves order on sentence

The Supreme Court on Tuesday reserved its judgment of the quantum of punishment for Prashant Bhushan over his tweets against the higher judiciary.

The Supreme Court had found Bhushan guilty of contempt of court over the tweets on August 14. During his sentencing hearing last week, the three-member Supreme Court bench, headed by Justice Arun Mishra and comprising Justices B.R. Gavai and Krishna Murari, had given Bhushan time until Monday to reconsider his statements and tender an apology. However, Bhushan issued a supplementary statement in which he refused to apologise.

Referring to Bhushan’s statement, Justice Mishra observed, “We expected something better than this”. Justice Mishra was quoted by Live Law as asking, “What can be done if he thinks he [Bhushan] has done no wrong?”

Justice Gavai noted the bench had given Bhushan three days to issue an apology, but he instead filed a supplementary statement. Rajeev Dhavan, who was representing Bhushan, declared the Supreme Court’s order last week for Bhushan to apologise was an “exercise in coercion”. Arguing that the Supreme Court could only survive with constructive criticism, Dhavan cited previous critical comments made by retired top court justices such as Madan Lokur and Kurian Joseph.

Dhavan sought that the contempt verdict against Bhushan be "suo moto recalled". Dhavan also emphasised “there is no question of withdrawing Bhushan's statements or excising his affidavit from the record, which is a part of his defence,” Live Law reported. Earlier in the day, the Supreme Court had granted 30 minutes time to Bhushan to consider expressing regret on his statements. Dhavan was quoted by Live Law as saying, “We are not asking for mercy. We are asking for statesmanship from this Court.” Dhavan told the court, "don't make Prashant Bhushan a martyr", when asked what punishment should be given to him. “The effect of the punishment could be, he will be made a martyr. Please do not do that. He does not want martyrdom,” Dhavan was quoted by Live Law as saying.

However, Justice Mishra regretted Bhushan's approach, noting this was not how a senior lawyer "with over 30 years" of experience should behave. Mishra said he belongs to the "old class" and had reprimanded lawyers for going to the press in pending cases. "There is a difference between an officer of the court and a politician. If you are going to press for everything, you are over identifying without your causes," Justice Mishra was quoted by Live Law as saying.

Mishra also emphasised the importance of an apology, describing it as a "magical word, which can heal many things". He claimed, "You will got to the category of Mahatma Gandhi if you apologise. Gandhiji used to do that."

A G reiterates support

Interestingly, Attorney General K.K. Venugopal reaffirmed his stance Bhushan should be shown leniency. Venugopal argued the court can take a "compassionate view" of the case, which would be appreciated by the bar and "befit the status" of the top court. Venugopal also argued the court should consider Bhushan's record as an activist who had filed several PILs for the "benefit of the people", Live Law reported. Venugopal appealed to the bench to take Bhushan's remarks off the court records and close the case. However, Justice Mishra objected to the request, noting, "How can they be taken off the record when Bhushan himself says they are his bona fide belief," Live Law reported.

Venugopal even suggested Bhushan be given "one more chance" to express regret.

Bhushan’s statement

On Monday, Prashant Bhushan issued a statement, in which he refused to apologise over his tweets. In his statement, Bhushan had said as an officer of the court, he believes it was a duty to speak up when he believes there is a deviation from its sterling record.

“Therefore I expressed myself in good faith, not to malign the Supreme Court or any particular chief justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples’ rights,” Bhushan had said in his statement.

He said, “My tweets represented this bona fide belief that I continue to hold. Public expression of these beliefs was I believe, in line with my higher obligations as a citizen and a loyal officer of this court. Therefore, an apology for expression of these beliefs, conditional or unconditional, would be insincere.”

The Supreme Court had said it would hear the matter on Tuesday for considering the "unconditional apology" if filed by Bhushan.

The same Supreme Court bench also heard another contempt of court case against Bhushan related to comments he made in a 2009 interview. Justice Arun Mishra ordered that the case related to 2009 be heard of September 10, by another bench, subject to orders of chief justice of India. Bhushan and journalist Tarun Tejpal are the accused in that case. Justice Mishra retires on September 2.