Prashant bhushan, Supreme Court LIVE

Contempt over Tweets: SC examines case against Prashant Bhushan following his statement refusing to apologise [LIVE UPDATES]

Yesterday, Bhushan filed a supplementary statement intimating that he would not be tendering the unconditional apology sought by the Court, and asserting that he stands by his tweets.

Bar & Bench

Aug 25, 2020, 3:27 PM IST

On August 14, the Supreme Court had found Prashant Bhushan guilty of criminal contempt of Court for two tweets criticising the judiciary. However, the question of sentence is yet to be decided.

The Court had initially fixed August 20 as the day for determining the sentence to be imposed on Bhushan. However, the Court deferred the matter further to August 25 after the August 20 hearing, to give Bhushan another chance to tender an unconditional apology.

Yesterday, Bhushan filed a supplementary statement intimating that he would not be tendering the unconditional apology sought by the Court, and asserting that he stands by his tweets.

[Breaking] Prashant Bhushan refuses to apologise in contempt case over tweets; says an apology would be insincere and contempt of conscience

Live updates of the hearing today feature on this page.

Bench begins to hear the Prashant Bhushan matter relating to the two Tweets. The Bench comprises of Justices Arun Mishra, BR Gavai and Krishna Murari

Justices Arun Mishra, BR Gavai and Krishna Murari

Rajeev Dhavan begins.

Dhavan says that Bhushan submitted a statement yesterday and written submissions have been filed.

Dhavan: Mr. Bhushan can first read the statement.

Justice Mishra: We have the statement, what is the need to read it?

Supreme Court wishes to hear Attorney General KK Venugopal first

Justice Mishra: Now you (AG) guide us. What is to be done now?

AG Venugopal: These statements would only be to tell the Court that you should look at the unclear and reform yourself.

AG: He (Bhushan) may be given a warning first and let go. He need not be punished.

Attorney General: These statements are telling the court to reform the court. They seek the improvement of the administration of justice.

Justice Mishra: Let's not go into anyone's statements.

Justice Mishra: What should be done in this case?

AG: He can be told not to repeat this and not given punishment.

Justice Mishra: But he doesn't think whatever he did was wrong. He did not submit an apology.

Justice Mishra: Mr. Venugopal, I will put one query to you...

All of us are imperfect in different degrees, if I feel I'm perfect I maybe wrong, if you feel you're perfect you may be wrong, any person xyz thinking he is perfect may be wrong...

Justice Mishra: People make mistakes, sometimes even in bona fide mistakes are made. But he does not think he did anything wrong. What to do when someone does not think they did something wrong?

AG refers to Bhushan's statement which was read out on August 20 and the supplementary statement filed on August 24

AG: Your Lordships remember I had taken a contempt out on Prashant Bhushan when he had said I had filed certain documents (regarding the Rafale case).

He expressed regret and then when I read it, I thought we should not proceed with contempt and I withdrew the same because he expressed regret.

AG: It will be a great service if Your Lordships take a compassionate view and leave it there.

Justice Mishra: When Mr. Bhushan does not think he did anything wrong then what is the point of giving him advice to not repeating it...?

AG: Then My Lord also see all the work he has done, he has filed so many PILs for the benefit of the people

Justice BR Gavai: PILs and all is good work but when it came to you, even you filed a contempt... You withdrew it only after he expressed regret. But that's not the case here.

Justice Mishra: As an Attorney General for India, you consider this... How will Supreme Court speak - we speak only through our judgments. There are very serious statements made. They are asking us to consider his defense during sentencing...

Justice Mishra: He has made so many remarks. Even in the Ramjanmabhoomi case... Only one of those judges has retired.

AG: He won't do it again.

Justice Mishra: Let him say that. But he then instead of that he gave color to those tweets.

AG: Let his response be taken off the record

Justice Mishra: How can we take this off the record?

Court: Everyone is criticizing is that we have not considered his response and the AG is saying take his response off the record... Now if this is removed, we will be blamed that we removed his response on our own

Justice Mishra: How can his response be taken off the record when he says it is his bona fide belief?

Bench refers to a statement made by Bhushan saying that the "Supreme Court has collapsed".

Justice Mishra: Isn't that objectionable?

AG: Let him express regret

Justice Gavai: For that we gave him 3 days but he filed a supplementary statement instead.

Justice Mishra: He instead said consider my defense (during sentencing)

AG is citing the judgment in the Arundhati Roy contempt case

The Bench is referring to the reply that was filed by Bhushan.

Justice Mishra: Which Judge is left out, sitting or retired? (Referring to the various allegations made by Bhushan)

Justice Mishra: AG, your advice should be also for withdrawal of the statements.

AG: They should withdraw the statements, I have nothing more to add.

Supreme Court Bench breaks for lunch.

Justice Mishra: We will come back after thirty minutes, think over it.

Bench assembles after Lunch.

Rajeev Dhavan begins.

Dhavan: I wear two hats, one I represent my client and second is my duty towards the Court. My duty towards Court is not synonymous to the duty towards the Client.

Dhavan: As a senior counsel, your Lordships have asked me about my submissions on sentencing.

Dhavan says he has submitted his written submissions.

Justice Mishra: I have read every word of this.

Dhavan: The offence of scandalizing is very vague, it can make anything. In the S Mulgaokar case guidelines, Justice Krishna Iyer has said the same thing.

I have been writing on the Supreme Court for a long time. Even when a certain CJI retired, I had written how he was acting like a Sultan and no contempt was taken, Dhavan

I have now written 1,031 articles out of which 900 are on the Supreme Court and I don't write unless there is something to say, Dhavan

Dhavan cites his books, articles written about the SC and asks if that would all amount to Contempt.

Dhavan: But this idea of "scandalous and scurrilous" is not a subjective idea at all

I had earlier reminded your Lordships of the time when Justice Mishra was Chief Justice of Calcutta HC and Mamata Banerjee had called judges corrupt, Dhavan

Dhavan: Judgement was written and she was let off and your Lordship presided and agreed with the judgement. That is an important judgement. Your Lordships have broad shoulders to take on any criticism.

Dhavan: Even during the last time, I had pointed out about the defence and the statements made in the affidavit and you had said don't take names.

Justice Mishra: Even AG was there, it (affidavit) was not referred to.

Dhavan is now referring to the Court's Judgment of August 14, says certain paragraphs favour Prashant Bhushan.

Your previous order was almost as though the contemnor was being coerced into tendering an apology, Dhavan

Dhavan: This is not what the Supreme Court does - (to say) "we give you so many days, tender an apology".

This is wrong jurisprudence, No court can pass an order like this, Dhavan.

Dhavan is now breaking down Bhushan's statement before the Court, says:

"When a person is called for a contempt case, is he not supposed to offer a defense?"

Dhavan: An apology cannot be a mere incantation, an apology has to be sincerely made and he (Bhushan) sincerely says that "this is my belief".

If your Lordships invite me for contempt, am I not supposed to offer my defence? And he (Bhushan) has systematically offered defence for each of the statements (in tweets) made by him.

Dhavan has been disconnected from the proceedings due to power cut.

Justice Mishra: Last time also it happened at the crucial point.

Dhavan reconnects and resumes: Your Lordships should look at his entire statement

Dhavan: Look at his first tweet. What he is essentially saying is that he wishes that things in Court should have happened differently. When it is juxtaposed against the Harley Davidson it was a bit odd, but intent of this has to be seen.

The tweet referred to by Dhavan in his submission

Dhavan: He is saying that prioritization has to be done.

Dhavan on Bhushan's Second tweet: We are all concerned about what has happened in the Supreme Court in the last six years. If Bhushan's statement is read as a whole, it says he has the highest respect for the judiciary but has a critical opinion about the last four Chief Justices.

Dhavan: I'm not saying that the Court is immune from criticism but I'm saying that all of us have the duty to make a fair criticism

Dhavan: Is this (a comment on the Harley Davidson picture) really a matter of contempt?

Dhavan: When your Lordships retire or even when you don't retire, there will be articles saying that the court decided some cases correctly or some cases incorrectly. They can't be stopped. Court can survive only on responsible criticism.

Dhavan refers to retired Judges - Justices Madan Lokur, Kurian Joseph and AP Shah - who have all made similar statements.

Dhavan: Are they also in contempt?

Dhavan: Now as for removal of defence from the records, and now I speak for my client, it is a part of my defence - There is no question of excising the affidavit. The convicting judgement should be suo motu recalled

Dhavan: What is the Court going to say to him - don't do it again? He (Bhushan) will ask "don't do what again"? Can the court silence him and ask him not to criticize the court again?

Dhavan: We are not asking for Mercy from this court, we are asking for Statesmanship from the Court.

Dhavan: This is all I have to say. Now, if the Court wishes to hear Mr. Bhushan, then he may make his submissions also.

Justice Mishra: Why to trouble him?

Justice Mishra inquires from Dhavan about his suggestions as a Senior Counsel on the kind of punishment that can be inflicted.

Dhavan: AG said reprimand, I'm saying a general message should go out.

Court asks about the provisions under the law.

Dhavan apprises the court about the kind of punishments provided for contempt in the statutes, which may include being banned from practicing or imprisonment among others.

Dhavan: My humble and most respectful submission is don't make Prashant Bhushan a martyr.

Dhavan: Don't make him a martyr by punishing him. When Kalyan Singh was sent to jail, he was celebrated. My respectful submission is not only should this case be closed but this controversy should also be closed.

Dhavan: We don't want a string of controversies after this with Articles either calling Bhushan a martyr or others applauding Court's decision. We only want this case and controversy to end and this can be closed only with judicial statesmanship

Senior Counsel CU Singh allowed to make submissions as an officer of the Court.

Singh agrees with the position taken by the AG "as an elder Statesman of the Bar" that the judgment maybe retained but Bhushan may not be punished

Justice Mishra: But if you read the tweets and his statements, it is painful to read. This is not what is expected from a senior member like Prashant Bhushan. And it is not just him, this has become very common now.

Justice Mishra: I belong to old class. I have reprimanded lawyers for going to 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 referring to the contempt case that was initiated by AG.

"I am demitting office so now I can say something about it. What happened there was AG and Supreme Court were wrongly quoted."

Lawyers of Bhushan's standing when they say something, tweet something, it goes somewhere.

Justice Mishra: You have to differentiate somewhere. Fair criticism is not a problem, it is for the benefit of the institution.

Justice Mishra: You are part of the system, you cannot destroy the system. We have to respect each other.

Justice Mishra: We're not separate from Bar, we have come from the Bar only. After doing every sacrifice, what we obtain? We cannot go to Press.

Justice Mishra: Now I'm demitting office, I'll never go to Press. Can we go to press? We cannot go to press, that is the ethics we have to maintain.

Justice Mishra: So many things in and out we know, but we cannot go to Press. We have taken an oath, we are bound by it.

Justice Mishra: Everybody is criticising us, but have we taken any action? Now Prashant is convicted, but has he been punished? Tell us.

Justice Mishra: Consider our pain. We are giving our comments right now!

Dhavan intervenes to support justice Mishra's comment

"I agree, before a case comes before the Court, it should not go to the Press. If something is placed on record, it should not be pre-released", Dhavan says.

Justice Mishra: Even everything that is transpiring in Court everyday, everyday this Bar & Bench and LiveLaw are reporting one sided and incorrectly.

Justice Gavai asks if it is appropriate for lawyers to interview or attend or give webinars on sub judice matters.

Dhavan agrees that lawyers "have no business" making comments on sub judice matters.

Dhavan: Now I don't think the Bar should say anything more than this.

Court wants to hear AG's final comments

AG: I see Your Lordships' trouble that Judges cannot defend against the allegations made.

Attorney General: Can his defence be taken into account without hearing the Judges who are third parties?

He has again and again reiterated that he has greatest respect for the institution: AG

AG: Your Lordships can say that the defence cannot be accepted and leave the matter at that.

Justice Mishra: But why such statements should be made?

AG: That is a different subject

Justice Mishra: How long will the system suffer criticism? Who will protect the system? The Bar has to protect them.

Justice Mishra: What is bad in apology?

AG: Admission of guilt is perhaps what it feels like.

Justice Mishra: If you are hurting someone, then what is wrong in apologising? I'm not commenting on Prashant right now, but I'm saying generally.

Justice Mishra refers to Mahatma Gandhi and on apologising for causing hurt to someone's feelings.

Justice Mishra: You should apply balm if you have caused hurt

Hearing concludes. Justice Mishra thanks everyone.

Supreme Court of India Contempt of Court Prashant Bhushan