Day 3 Arguments

25 August 2020

On August 14th, the Bench headed by Justice Arun Mishra had convicted Prashant Bhushan of criminal contempt of court. At the previous hearing on August 20th, Sr. Adv. Rajeev Dhavan appearing for Prashant Bhushan had concluded his arguments on sentencing. Prashant Bhushan had also read out a statement in court stating his unwillingness to apologise and that his tweets were his bonafide belief.  The Court had asked Prashant Bhushan to take 2-3 days to reconsider his statement. While he had reiterated that he would not apologise, he took time to reconsider his statement. The order for August 20th subsequently stated that the court had given Prashant Bhushan time to submit an ‘unconditional apology’.

On August 24th, Prashant Bhushan filed a supplementary statement, where he noted: ‘If I retract a statement before this court that I otherwise believe to be true or offer an insincere apology, that in my eyes would amount to the contempt of my conscience and of an institution that I hold in highest esteem.’ The matter was listed today to consider the effect of the supplementary statement filed by Bhushan.

Today, the hearing began with the Bench calling upon the Attorney General (AG) K.K. Venugopal to make his submissions on whether he believed that Prashant Bhushan should be punished and on the nature of punishment.

 

Attorney General Urges Justices to Put the Case to Rest

Attorney General K.K. Venugopal insisted that the Court not punish Prashant Bhushan for his tweets, and should instead put a rest to the ongoing controversy. He noted that several retired judges had made serious statements in various newspapers regarding the functioning of the Supreme Court on which no contempt had been initiated. He urged that such statements which critique the functioning of the Court must be seen in totality and be considered for the improvement of justice. On further questioning by the Bench, the AG stated that at best, the Court could warn Bhushan not to repeat such conduct, but there was no question of imposing any punishment.  The Bench noted that Bhushan did not believe that he had made a mistake or that his actions were wrong and even though the first part his statement indicated that he respected the Court, he did not place an apology on record. J. Mishra pointed out that even after thinking the issue over, Bhushan had not apologised.

The AG pointed out that in an earlier contempt petition against Bhushan that Venugopal had himself initiated, Bhushan had expressed regret and the petition was withdrawn. The Court, he added, must have a compassionate view in this case. Moreover, Bhushan’s work was centred around public welfare and the public good. Gavai J pointed out that the AG had withdrawn his petition only after Bhushan had expressed regret. Drawing parallels to the current case, Gavai J observed that Bhushan had not taken a similar stance here. The Attorney pointed out that this case had reached this point because the Court had decided to proceed with the contempt. Lastly, the AG invoked Arundhati Roy’s contempt case to argue that the Court should have ‘broad shoulders’ to take criticism. The Court should not exercise any other power except that of ‘statesmanship’, he added. He reiterated that the Court could remove Bhushan’s defence, as presented in his detailed reply, off the record. He further added that Court could not adjudicate on this case without having heard the judges against whom allegations were levied and taking on record Bhushan’s defence.

 

Rajeev Dhavan Asks the Court to Recall its Judgment

Sr. Adv. Rajeev Dhavan relied on his written submissions to begin his arguments. First, he spoke about the ‘offender’, Prashant Bhushan: First, he argued that the Court must take into account that Prashant Bhushan did not go to the press repeatedly about the Court, and that he had a sterling record in bringing important public interest cases before the Supreme Court. Second, he argued that ‘scandalising the court’ has a vague and undefined scope, and as such should be ‘handled with care and only in extreme cases’. Moreover ‘scandalous’ cannot have subjective meanings and applications. To reiterate the point that contempt must not be disparately applied, Dhavan pointed to several cases in which similar statements had been made, but the Courts had not gone ahead with contempt proceedings – including a case before the Calcutta High Court where J. Mishra decided not to go ahead with contempt proceedings against Mamata Banerjee. Third, Dhavan argued that the defence of truth must be considered while sentencing. However, he did not elaborate on this point.

Dhavan contended that the Court’s order seeking an unconditional apology from Bhushan seemed coercive. Further, he argued that the Court must take note of Bhushan’s supplementary statement in its entirety; his statements which praise the Court and its institutions must be considered as well.  He sought that the Court recall its judgment which pronounced Bhushan guilty, and not award any sentence. Mishra J asked Dhavan too, about what would constitute an appropriate punishment. Dhavan noted that a general message to lawyers to be cautious would be enough. If the Court were to specifically reprimand Bhushan or award him with any sentence, he would become a martyr in his own case.

The Court concluded its hearings and has reserved its order.

 

(This report was based on contributions from Cheryl D’Souza, Advocate, Supreme Court of India.)