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Supreme Court has reserved its order on sentencing and granted Bhushan time till August 24 to tender an "unconditional apology".
In its suo motu contempt case initiated against Advocate Prashant Bhushan, the Supreme Court today gave the lawyer time till August 24 to reconsider his statement on the proceedings and tender an "unconditional apology".
Quite significantly, Attorney General for India KK Venugopal, as an officer of the Court, urged the Court not to proceed against Bhushan during today's hearing on sentencing.
In his statement filed in response to the August 14 verdict holding him guilty of contempt, Bhushan paraphrased the words of Mahatma Gandhi, saying,
Prashant Bhushan statement
The order was passed by the Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari, which had found Bhushan guilty of contempt of court for his tweets criticising Chief Justice of India SA Bobde and the judiciary posted earlier this year.
At the start of today's hearing, Senior Advocate Dushyant Dave, appearing for Bhushan, requested the Court to adjourn the hearing in light of the review petition intended to be filed against the Court's August 14 verdict.
However, Justice Mishra said,
"If that can be reviewed, this (sentencing) can also be reviewed."
Dave then responded,
"If that (conviction judgment) is reviewed, then sentencing will become infructuous."
Justice Gavai went on to point out that in the recent case of Vijay Kurle, the Court had rejected such a request. Justice Mishra added,
Justice Arun Mishra
Noting that the review petition was yet to be filed, Justice Gavai suggested that it appears that the review will be sought when one of the judges on the Bench (Justice Mishra) has retired. Justice Mishra retires on September 2.
However, Dave said,
"Review can be filed within 30 days. Let the impression not go that review will not be filed till Justice Mishra retires...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."
Dave went on to add,
"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 said in response,
"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?"
The Bench eventually made it clear that it would not defer the hearing.
Senior Advocate Rajeev Dhavan then said he was not in favour of deferment of the hearing. He said,
"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."
At this point, Bhushan read out his statement in response to the Supreme Court's verdict finding him guilty of contempt. The statement reads,
"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 arrived at the conclusion without providing any evidence about my motives....I believe that open criticism is necessary in any democracy to safeguard the constitutional order. Saving the constitutional order should come above personal or professional interests. My tweets were a small attempt to discharge what I consider my highest duty...
...I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose..."
"...My tweets were out of a bona fide attempt to discharge my duty as a citizen. I would have been failing in my duty if I did not speak up at this juncture of history. I submit to any penalty which the Court may inflict. It would be contemptuous on my part to offer apology..."
Dhavan then addressed the Court, arguing that in contempt cases, the nature of the contemnor, as well as the nature of the offence have to be considered.
Justice Mishra then said,
"You want us to balance, the Court is for balance, if we don't balance the whole institution will be destroyed. 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...
...Sometimes in zeal, you cross the lakshman rekha. We appreciate the cases and the work and efforts for good cases."
Justice Arun Mishra
Dhavan went on to argue that for contempt proceedings to be invoked, it has to be shown that a statement causes a substantial interference in the functioning of the justice delivery system. Referring to Bhushan's first tweet on CJI Bobde on the motorbike, he asked,
"How can a lawyer's tweet about CJI not wearing a mask affect the functioning of the Court?"
Dhavan further argued that the points made by Bhushan in his reply were not addressed by the Court in its judgment. To this, Justice Gavai replied,
"Mr Dave referred to some parts of the affidavit, that is taken into account in the judgment. He did not rely on other parts."
Referring to Bhushan's affidavit, Dhavan submitted that truth is an absolute defence in defamation and contempt cases.
The Bench then sought Attorney General KK Venugopal's views on the statement made by Bhushan, and whether he should be given more time. In response, AG Venugopal said that it would be "tremendously good" if Bhushan is given some time.
Bhushan then said that the statement he made was a well thought-out and considered statement.
"It is unlikely that there will be substantial change in my statement", he said.
The Court then said,
"We can give you time and it is better if you consider it. Think over it...we will give you 2-3 days time."
Dhavan then continued with his submissions, stating,
"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)."
He went on to add that Bhushan's sentiment had found support from retired judges and thousands of lawyers.
"Are they in contempt too?" asked Dhavan.
AG Venugopal then asked the Court not to punish Bhushan. In response, Justice Mishra asked him to consider the entire case and then make submissions after 2-3 days.
After Dhavan concluded his arguments, AG Venugopal sought to make some brief submissions. He was addressing the Court as an officer of the Court considering notice was issued to the Office of Attorney General in the contempt matter. He said,
Attorney General KK Venugopal
However, the Bench was not inclined to hear the AG on merits.
The Court ultimately said it would give Bhushan "2-3 days to reconsider his statement" made in response to the August 14 verdict. The Court's order published subsequently records that Bhushan has been granted time till August 24 to tender an "unconditional apology".
Should Bhushan make this apology, the matter will be considered again on August 25, Supreme Court's order further says also adding that the Court has reserved its verdict on sentencing.
Read today's order:
On August 14, the Court had convicted Bhushan for contempt of court and fixed the date of hearing for his sentencing on August 20.
Bhushan subsequently sought deferment of this hearing on the ground that he intends to seek a review of the judgement convicting him for contempt of court.
He sought for the sentencing hearing in the case to be deferred until his review plea is filed (within the statutory period of 30-days).
Alternatively, if the Court proceeds to impose a sentence on Bhushan tomorrow, he has urged that the same to be stayed till the proposed review petition is decided.
Following the August 14 verdict, Bhushan received support from the Bar, both in India, and abroad, with a group of lawyers stating that the majesty of the Supreme Court of India is not affected so much by criticism, as it is by its own response to it.
In fact, former Supreme Court judge, Justice Kurian Joseph had also weighed in, stating that substantial questions of law raised in the matter ought to be heard by a Constitution Bench of the Apex Court.