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On Tuesday, 25 August, the Supreme Court reserved its order on sentencing in the contempt case relating to Bhushan’s recent tweets about the judiciary. This followed a long hearing in which Attorney General for India KK Venugopal continued to bat for Prashant Bhushan, urging the Supreme Court to show “statesmanship” and forgive the lawyer activist.

Bhushan’s lawyer Rajeev Dhavan also asked the court to show it had “broad shoulders” and not punish Bhushan, arguing that “severe criticism” was essential for the functioning of the court. The bench of Justices Arun Mishra, BR Gavai and Krishna Murari expressed their concerns over the allegations made by Bhushan in his reply affidavit to the court, and raised concerns about the constant criticism of the court in recent times.

They also said that they “don’t feel that they have prevented fair criticism” from anyone, noting that there is another contempt case against Bhushan that has been going on for 11 years without any action.

The judges were conducting a hearing to consider the “effect” of Bhushan’s supplementary statement, submitted to the court on Monday, in which he had refused to apologise for the tweets which the court has held amounted to criminal contempt.

The same judges had held on 14 August that two tweets by Bhushan – one about CJI SA Bobde and a superbike and the other about the court’s role in the destruction of democracy over the last 6 years – amounted to criminal contempt, as they ‘scandalised’ the court.

The judges had not specified the penalty for this contempt in their verdict, instead conducting another hearing on 20 August where Bhushan’s lawyers were allowed to argue on sentencing. In that previous hearing, they had decided to give Bhushan till 24 August to offer an ‘unconditional apology’.

Instead of an apology, however, Bhushan submitted a supplementary statement on the day confirming that he still held to his beliefs, and that as a result, any apology from him would be “insincere”.

ATTORNEY GENERAL URGES COURT TO SHOW ‘STATESMANSHIP’

When the hearing commenced, senior advocate Rajeev Dhavan, appearing for Bhushan, asked the judges to let Bhushan read out his supplementary statement. Justice Mishra said there was no need for this as the judges had already read the statement.

Attorney General KK Venugopal was then asked by the judges to “guide us”. The AG proceeded, suggesting that this was a “fit case” to forgive Bhushan. He noted that five retired judges of the Supreme Court had also raised similar concerns.

"“From time to time My lords, retired judges and sitting judges have been making comments. We have serious statements by five judges about Supreme Court having failed to maintain democracy.”" - Attorney General KK Venugopal

Venugopal said that such statements should be viewed as requests for self-improvement in the administration of justice.

The judges then pointed out that Bhushan, in his supplementary statement, has said that the Supreme Court didn’t consider his reply (contained in a detailed affidavit). They repeated what they said at the last hearing, that Bhushan’s lawyers had not referred to the whole affidavit during their oral arguments, and hence they had not considered the whole affidavit.

Justice Mishra then suggested that the contents of that affidavit could in fact be taken as an “aggravation”, given the allegations it contained. Reference was made to allegations against former CJI Dipak Misra, as well as Bhushan’s comments in the affidavit about the Ayodhya judgment and the way the apex court was becoming more “executive-minded”.

“No judge, sitting or retired, has been spared,” Justice Mishra observed.

AG Venugopal suggested that these allegations could be withdrawn, and that if Bhushan then made an expression of regret similar to the one he’d made in the 2009 contempt case on corruption allegations against the judiciary, "that would be a fitting end to this matter.”

COURT’S DEMAND OF UNCONDITIONAL APOLOGY IS COERCION: RAJEEV DHAVAN

Senior advocate Rajeev Dhavan then began his arguments for Bhushan. He began by noting that Bhushan had contributed a great deal to the court in the public causes he had taken up, and in his role as amicus curiae to it.

He pointed out that Justice Arun Mishra, when Chief Justice of the Calcutta High Court, had refused to hold Chief Minister Mamata Banerjee in contempt for her comments about judges being corrupt.

Dhavan argued that there was nothing wrong with criticism of the court, even “strong criticism”, rather that the contrary was true. “The Supreme Court will collapse if it does not face severe criticism,” he said.

He also contended that the court’s order of 20 August, in which it said it was giving him till 24 August to issue an unconditional apology was an “exercise of coercion”.

Dhavan then explained why he had asked for Bhushan’s statement to be read out to the court. He said that the judges were only focusing on what he said about not apologising, but the statement needed to be read as a whole, including his statement of respect for the court.

“An apology shouldn’t be made just to get out of clutches of the court,” Dhavan suggested, adding that “an apology must be sincere.” A sincere explanation, he according to him, should be considered to fall within the term ‘apology’.

Dhavan once again argued that “responsible criticism” was essential for the functioning of the court, and it was the duty of lawyers to do so. “The court is not immune from criticism,” he said, noting that while one could be proud of many judgments of the court (including its recent one by Justice Mishra on ensuring equal inheritance rights for Hindu women), there had been many troubling ones as well.

He concluded his arguments for Bhushan by saying that that the verdict holding Bhushan guilty on 14 August should be suo motu recalled by the court. He said that if it comes to punishment, the court in its reprimand can hardly tell Bhushan not to criticise it again.

In its order, he instead suggested that the court can express its disagreement with the things Bhushan has said, and urge Bhushan to be “a little restrained” in his criticism, and to make sure he gets his facts right.

Finally, he reiterated the AG’s request for “statesmanship” by the court, and urged them not to make Bhushan “a martyr” by imposing punishment.

WHAT HAPPENED AT THE PREVIOUS HEARING ON 20 AUGUST?

During an extraordinary hearing, Bhushan refused to apologise, his lawyers argued that he had acted in good faith and the judges appeared to admit they had not referred to Bhushan’s detailed reply affidavit when passing their verdict.

In a major development, Attorney General for India KK Venugopal also came out in support of Bhushan, asking the judges to not punish the lawyer-activist, while also pointing out that retired judges of the Supreme Court had said things similar to the contents of his tweets.

However, the court did not allow the senior law officer to make any detailed arguments, and said that they could not consider his suggestion to not punish Bhushan, unless Bhushan were to rethink his decision not to apologise.

Justice Mishra also informed Bhushan’s lawyers that despite Bhushan’s long record of service and the many good causes he had fought for over the years, they could not be lenient in their sentence unless he realised he had made a mistake and admitted this.

Although the judges rejected an application by Bhushan in which he had requested them to defer the sentencing till after his review petition against the court’s decision on contempt was heard, they assured him that if any sentence is passed against him, it would not be activated until his review petition had been decided.

Bhushan has till 30 days from the date of the court’s original verdict, to file a review petition.

BHUSHAN’S REFUSAL TO APOLOGISE

Bhushan first said he would not apologise in a statement to the court on 20 August itself, when he said he would not ask for “mercy”, and, paraphrasing Mahatma Gandhi, he would “cheerfully submit” to any punishment the court specified for him. When the judges urged him to rethink this statement, he said he was unlikely to change his mind but would think about it.

On 24 August, the deadline for him to submit an apology, he reiterated his decision not to apologise. Affirming his respect for the Supreme Court as an institution, he said that he had only been fulfilling his duty as a citizen and a lawyer by pointing out what he felt was a deviation from its sterling record. As a result, he said:

"“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.”"