Contempt against Prashant Bhushan over tweets: SC gives Bhushan 2-3 days to reconsider statement [LIVE UPDATES]
Litigation News

Contempt against Prashant Bhushan over tweets: SC gives Bhushan 2-3 days to reconsider statement [LIVE UPDATES]

On August 14, the Court had found Bhushan guilty of criminal contempt of Court for two tweets criticising the judiciary.

Bar & Bench

The Supreme Court is due to decide on the sentence to be imposed on Advocate Prashant Bhushan, who was found guilty of criminal contempt of Court for two tweets criticising the judiciary on August 14.

At the time, the Bench of Justices Arun Mishra, BR Gavai and Krishna Murari did not pass orders on the question of sentence and instead posted the matter on this aspect for today.

On the eve of this sentencing hearing, Advocate Bhushan preferred an application yesterday praying that the Court defer today's hearing given that he will be filing a review plea against the August 14 verdict.

Live updates of the sentencing hearing today feature on this page.

Bench assembles. A bench of Justices Arun Mishra, Gavai and Murari to pronounce the sentencing verdict

Senior Counsel Dushyant Dave addresses the Court first.

Dave requests the Court to adjourn the hearing in light of the review petition intended to be filed.

Justice Mishra: This is consequential to having been found to be in contempt.

If that can be reviewed, this (sentencing) can also be reviewed.

Dave: If that (conviction judgment) is reviewed, then sentencing will become infructuous

Justice Mishra: How?

Justice Gavai: Mr. Dave, in the case of Vijay Kurle, such a request was rejected by this Court

Justice Mishra: In the event, we decide to impose any kind of punishment we assure you that it won't be in operation till the review is decided.

Justice Mishra: Don't worry, we will be fair to you... Even if you are not fair to us

Justice Gavai: On 17th (August), Dr. Dhavan made the statement that review will be filed. You have not filed until now?

Justice Gavai suggests that it appears that the review will be sought when one of the Judges on the Bench has retired.

Dave: Review can be filed within 30 days. Let the impression not go that review will not be filed till justice Mishra retires.

Dave: If by the time review is filed, if My Lord justice Mishra retires then well and good. Every order of Justice Mishra can be reviewed but that does not mean that review has to be filed before Justice Mishra retires. There is a statutory limit of 30 days

Note: Justice Arun Mishra retires on September 2, 2020

Justice Mishra: We assure you that the sentence will not be activated till the review petition is decided.

Dushyant Dave: Heavens are not going to fall if the sentencing is deferred till the review is decided. It is not provided in the law that it has to be decided by the same Bench.

Justice Mishra: A sentencing is a continuation of him being found guilty. Will it be appropriate if another Bench decides on sentencing? Suppose I was not demitting office then would it be appropriate for another bench to decide on sentencing?

Justice Mishra: We do not propose to defer the hearing.

Dave: We have moved an application (for deferment), you may reject it. I will bow down to the decision. All I can do is I can present the law.

Justice Gavai: The review could have been filed by now Dave: there is a statutory provision for 30 days. Dr. Dhavan did not say that we will file review. I request your Lordships not to hold the counsels for what they say during the heat of the arguments.

Dave: If the review is ready, does it mean we have to file it?

Rajeev Dhavan: I did not make a statement on 14th because I was not in that case.

Justice Gavai: On 17th

Dhavan: on 17th I said I have a point argument.

Attorney General KK Venugopal: Notice was issued to me in this.

Justice Mishra: AG, they have to address us on sentencing.

Court: One thing is clear we are not inclined to defer the hearing

Dave reminds the Court that Attorney General has been waiting for making arguments.

Justice Mishra: don't remind us, we are aware of that.

Justice Mishra: Please maintain the congenial atmosphere, don't go to that extent, we have to maintain dignity of the court.

Dhavan: I am not in support of this deferment. I just want to say, at the Bar, we take our Judges as they come, we don't go Bench hunting. It is immaterial if a judge is retiring.

Dhavan says before he addresses the Court on sentencing, Bhushan will make a statement

Bhushan's statement: "I am pained at the verdict that the Court held me guilty. I am pained that I am grossly misunderstood. I am shocked that the court concluded at the conclusion without providing any evidence about my motives..."

"..I am pained and shocked that the Court did not provide me with the complaint on the basis of which the contempt was taken. I am dismayed that the Court did not consider my reply affidavit..."

Bhushan: "...I believe that open criticism is necessary in any democracy to safeguard the constitutional order. Saving the constitutional order should come about personal or professional interests. My tweets were a small attempt to discharge what I consider my highest duty..."

Bhushan: "...I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose..."

Dhavan makes submissions now, says there has been disquiet about previous CJIs

Dhavan: Nature of the offence also has to be considered. There is already a lot of public discussion on the working of the judiciary in recent times.

Dhavan cites all the old cases which got a thrust and boost on account on Prashant Bhushan to show Bhushan's bona fide.

"These are the cases that are Prashant Bhushan cases"

Dhavan: Put these cases together and examine if this person is simply attacking the Court?

Dhavan: Tweets are transient in nature.

Dhavan: This has to be reconciled and Your Lordships have decided to reconcile. I say this with the deepest respect but when your Lordships' 14th August judgment reaches top institutions, it will be heavily criticised. About 20 pages is a clear cut and paste from Vijay Kurle case

Justice Mishra: Don't worry Dr Dhavan. Fair criticism is welcome (smiles)

Read the Full Statement by Prashant Bhushan:

Justice Mishra: You talk of balancing... You want us to balance, the Court is for balance. If we don't balance the whole institution will be destroyed.

Justice Mishra: But if counsel's interest has to be protected, at the same time the institution also has to be protected. You all are part of this institution, this system.

Justice Mishra: Sometimes in zeal, you cross the lakshman rekha. We appreciate the cases and the work and efforts for good cases

Justice Mishra: But the restraint also has to be balanced. In my entire judicial career, I have never held any one person guilty of contempt.

Justice Mishra: Balancing and restraint are the issues and Article 139 must be used sparingly, but now you show the balance

Dhavan is now citing a judgment delivered by justice Mishra as Chief Justice of Calcutta High Court where the court restrained from taking contempt against Mamata Banerjee for her remarks against judges. "And the words used were Lakshman Rekha."

Dhavan: Balance of contempt power under Article129 is drawn from A.19 of the Constitution

Dhavan: The objective of the Court is not to arrive at a finding that the statement is "scurrilous" etc. But, it has to be shown that such statements have a substantial interference in the functioning of the justice delivery system.

Dhavan refers to the first tweet in question (CJI Bobde and motorbike) and asks how can a lawyer's tweet about CJI not wearing a mask affect the functioning of the Court?

Dhavan: Copy of the complaint was not served even though applied for it

Justice Mishra: Cognizance was taken on the tweets, not on the complaint.

Dhavan: Vijay Kurle judgment says that he is entitled to a copy of the complaint

Justice Mishra: But if cognizance is taken suo motu then the complaint is not relevant.

Dhavan: The reply filed by Bhushan was not taken into account.

Justice Mishra: Mr. Dave only argued other points

Justice Gavai: Mr Dave referred to some parts of the affidavit, that is taken into account on the judgement. He did not rely on other parts

Justice Gavai points out that Mr Dave has relied on Affidavit till page 40 only

Dhavan reading out from the later parts of the affidavit says truth is a defence.

Justice Mishra: If you want us to deal with it, we will.

Dhavan: Section 13(2) provides for truth as a defence. Truth is an absolute defence in defamation and contempt cases

Justice Mishra: defence or an aggravation?

Dhavan seeks to take the Court through the contents of the affidavit filed by Bhushan in the contempt case which referred to the basis of Bhushan's tweets on previous 4 CJIs

Justice Mishra: Please don't take any names.

Justice Mishra: We wanted to avoid all this

Dhavan: But that is the point

Dhavan: These parts are relevant to show the bonafide and truthfulness

Dhavan: these last 6 years have been difficult for this institution... The history of this Court...

Justice Mishra: All this is not necessary. Let us leave it for the future to see what history shows. Let us not predict, we are not astrologers.

Dhavan: Your Lordships keep emphasizing on balancing but balancing depends on what weight you put on one side and what weight you put in the other.

Dhavan: Coming back to the tweet itself, why should a tweet which questions how the Supreme Court will be examined in the future amount to contempt?

Dhavan: It is important to go into the question of "substantial interference with justice."

Justice Mishra: Question is, you are justifying the statement but, right or wrong, we have found him (Prashant Bhushan) guilty, we have heard his statement, now we think AG should take time to think about the statement also.

Justice Mishra: When somebody has been convicted whether they should be given time or not...

AG: My submission would be...

Justice Mishra: No we don't want to hear you on merits right now

Justice Mishra asks AG, if Prashant Bhushan should be given time and opportunity of 2-3 days.

AG says it would be "tremendously good" if Bhushan is given some time

Prashant Bhushan to Supreme Court: Statement I made was well thought out and considered statement. It is unlikely that there will be a substantial change in my statement.

Justice Mishra: We can give you time and it is better if you consider it. Think over it.

Bhushan: I will consult my lawyers also but it is unlikely there will be a change in it.

Justice Mishra: You think over it, we will give you 2-3 days time

Dhavan continues to make his submissions

Dhavan addressing the Court on the meaning of bona fide, refers to the General Clauses Act

Dhavan now addresses the Court on the point of "lakshman rekha" and cites a judgemnt rendered by Justice Krishna Iyer in the Mulgaokar case. It was said that Judiciary must ignore the comments made against it

Dhavan: The Court did not give reasons on how the tweets were "scurrilous". The conclusion was reached without considering the justification of Prashant Bhushan. Dave did not want to embarrass the Court (by going into the details of the affidavit).

Dhavan says that Bhushan's sentiment had found support even from retired Judges and thousands of lawyers

"Are they in contempt too?", Dhavan asks

Dhavan has been logged out of the hearing on account of connectivity issues.

Bench addresses Attorney General KK Venugopal in he meantime.

AG urges the Court not to punish Bhushan.

Justice Mishra asks AG to consider the entire case and then make submissions after 2-3 days. He reiterates that the Bench does not want to be influenced by AG right now

Dhavan reconnects, continues to make his submissions on bona fide and Lakshman rekha.

Dhavan: while interpreting your power under Article 129, it is important to show that the statement in question is mala fide

Dhavan: Repetition of contemptuous statement is also contempt.

Dhavan: Three former judges of the Supreme Court have supported Bhushan.

Justice Mishra: Please don't invite our comments on that. Please don't argue all this

Justice Mishra: Are you arguing on review or on sentencing ... Sentencing for me is not about how to punish someone.

Justice Mishra: Sentencing for me is deterrence. Mistake can be committed by anybody.

Dhavan refers to High Court judgments that have held that criticism of judges cannot be contempt.

Justice Mishra: But my question is what about the institution part?

Justice Gavai: The judgment has concluded that the tweets affect the entire judicial institution.

Justice Mishra referring to a Kerala High Court judgement rendered by Justice KT Thomas, says contemnor has to purge himself.

Dhavan: Purging of contempt can be done only in civil contempt cases.

Justice Mishra: We can be lenient when the contemnor realises his mistake and apologises. Just because you have done good work does not mean your wrong can be overlooked.

Justice Gavai: There has to be mutual respect between the Bar and the Bench.

Dhavan concludes his arguments. AG seeks time to make some brief submissions.

AG: I have a list of five Supreme Court judges who said Democracy was under threat which is what Bhushan said

AG: I have a list of nine Judges who had said that there is corruption in the higher levels of the judiciary. I had myself said in 1987...

Justice Mishra: We are not hearing you on merits right now, Sir

Hearing concludes for the today.

  • Dhavan has concluded his arguments;

  • Bench suggests purging of contempt;

  • AG sought to argue in favour of Bhushan and against him being punished;

  • Bhushan given 2-3 days to reconsider his statement.

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