[Breaking]'Tells Us What Is Wrong In Using The Word "Apology"': Asks Justice Mishra As SC Reserves Judgment In Prashant Bhushan Contempt Case Over Two Tweets

The Supreme Court bench headed by Justice Arun Mishra on Tuesday reserved judgment on the sentence in the suo moto contempt case against Advocate Prashant Bhushan over his tweets.

"Tell us what is wrong in using the word 'apology'? What is wrong in seeking apology? Will that be reflection of the guilty? Apology is a magical word, which can heal many things. I am talking generally and not about Prashant. You will go to the category of Mahatma Gandhi, if you apologise. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that", observed Justice Mishra while reserving Judgment.

In the afternoon session Dr. Dhavan resumed his submission stating that he wears "two hats" and that he, as a Senior Advocate, has a duty to the Court as well as a duty to his client.

"When your Lordships sentences, your Lordships should first look at the offender. This 'offender' has contributed a lot to this Court as Amicus and in public causes, as the Attorney-General pointed", said Dhavan.

Dhavan remarked that he had written over 1000 articles, with 900 of them about the Supreme Court. Further, he had said that the Supreme Court had a "middle class temperament" and asked if that could be termed as contempt.

It was argued by Dhavan that the AG submitted that Bhushan's views had been expressed by many former judges.

"I remind Justice Arun Mishra that when he was a Chief Justice of Calcutta High Court, your Lordships did not initiate contempt against Chief Minister Mamata Banerjee for her comments that judges are corrupt. Your Lordships took into account her position as Chief Minister", submitted Dhavan.

Dhavan gravely noted that the the Supreme Court would collapse if it did not face severe criticism.

'Apology cannot be escape clutches of law', Dhavan

He further noted that the convicting judgement contained "half-truths and contradictions". Observations on the August 20 Order of the Supreme Court were submitted by Dhavan before the Court as he stated that the Order giving time to Bhushan to apologize gave the impression that Bhushan was being coerced to give an apology and it was an "exercise of coercion"

"The Order which says that it will only accept unconditional apology is an exercise of coercion", averred Dhavan. Dhavan further submitted that Bhushan was sincerely expressing his bona fide belief. He added, "Tomorrow if I am indicted for contempt (I have done many contemptuous things), am I expected not to give a defence?

"An apology cannot be made to escape the clutches of law. An apology has to be sincere", submitted Dhavan.

Dhavan then referred to the impugned tweets of Bhushan, the basis on which the suo moto contempt case had been initiated. He submitted that the first tweet of Bhushan did not insinuate that the Court did not work as he was merely commenting on the prioritization of cases.

He further submitted that a sincere explanation would come within the broad contours of the term "apology".

"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 four Chief Justices. All of us are troubled by what has happened in this Court in the last 6 years. I am proud of many judgements of this Court, but I am also not proud of many judgments", stated Dhavan.

Dhavan then went on to submit that the Court was not immune from criticism and that it was the responsibility of all to make responsible criticism. He showed the Bench a page from the Daily Mirror which had called the judges of United Kingdom as "You Fools" for their judgement in the Spycatcher Case.

"When your Lordships retire, there will be a spate of articles criticizing your Lordships and some congratulating. Can they be stopped? This Court can survive only on responsible criticism.

In the present controversy, many persons like Justices Lokur, Kurian Joseph, Arun Shourie etc. have made comments in the public domain.

"Are they also in contempt?"Dhavan submitted that there was no question of withdrawal of Bhushan's statements or exorcising his Affidavit from the record, which was a part of his defence.

On the topic of whether the Court should reprimand Bhushan, Dhavan contended, "What is that the Court would tell him? When you tell him not to do it again, he will ask about what he should not do again. Can the Court ask him not to criticize the Court? Can the Court silence him?" 

Dhavan then stated that the only way for the Court to close the case would be to say that they had taken into account his (Bhushan) statement and though they disagreed with what he had said, they could caution him to be a little restrained in the manner in which he criticizes the Court and be sure of the facts.

"We are not asking for mercy. We are asking for statesmanship from this Court", said Dhavan. Dhavan then asked the Bench if they desired to hear Bhushan. To this, Justice Mishra responded, "Why trouble him?"'

Don't make Bhushan a martyr

Justice Mishra then asked Dhavan that if the Court decided to punish Bhushan, what could be the punishment. In response, Dhavan submitted:

"One punishment which the Court has given in cases is to bar the contemnor from appearing in the Court. Second is the punishment prescribed in the Contempt of Courts Act.

But, my respectful submission is – don't make Prashant Bhushan a martyr."

Dhavan observed that the effect of the punishment would be that Bhushan would be made a martyr and Bhushan did not want martyrdom.

"If Bhushan is punished, there will be one set of articles calling him a martyr and another set of articles saying that he was rightly punished. We all want this controversy to end. This can only end by judicial statesmanship."

Painful to read statements of Bhushan - Justice Mishra

Senior Advocate Chander Uday Singh, permitted by the Court to make submissions as an "Officer of the Court", submitted that the AG had taken the position as "an elder statesman of the Bar".

Singh contended that if Section 13 of the Contempt of Courts Act was taken into account, there was no need for a sentence, even if the conviction was maintained as there was no substantial interference with administration of justice. 

Justice Mishra, in response, noted that it was "painful" to read all the statements of Bhushan and his justifications. He stated that this was not the way for a senior lawyer like Prashant Bhushan with over 30 years of experience should behave.

"I belong to old class. I have reprimanded lawyers for going to press in pending cases. There is difference between an officer of the Court and a politician. If you are going to the Press for everything, you are over identifying without your causes", said Justice Mishra.

Justice Mishra stated that going to the Press or making a tweet by a lawyer of the standing of Bhushan carried some weight and affected the public. He, however, observed that the Court would not be passing a sentence based on who is in his support or who is against him.

"You are part of the system. Your dignity is as good as a Judge. If you destroy each other like this, people will not have trust in the system. We welcome fair criticism. But, we cannot go to the Press to respond to criticism. As a Judge, I have never gone to Press. That is the ethics we have to observe".

Justice Mishra stated that there were so many things the Court knew, but they never approached the Press for all that as they had to protect each other and the dignity of the institution.

It was also noted by Justice Mishra that the Court had not prevented fair criticism from anyone; everybody was criticizing the Supreme Court and no action had been taken.

Further, the 2009 contempt case against Bhushan had been pending for 11 years and no action had been taken. Justice Mishra remarked, "It is very painful to note all this before demitting the office".

Dr. Dhavan, at this juncture, concurred with Justice Mishra and observed, "I support your Lordship's view that a petition cannot go to the Press before it is filed. I submit that the statement in this case should not have been pre-released".

Justice Mishra, to this, stated that live reporting of the Court proceedings were often one-sided and, in many cases, wrong, and yet the Court had not taken any action. 

Justice BR Gavai then asked Dhavan whether it was appropriate for a lawyer to give interview or sit for a webinar on pending cases.

Dhavan agreed with the same and reiterated that the pleadings and statements filed in the Court should not be pre-released to the Presss before the Court considered them.

Dhavan then, on the question of punishment, submitted, "Kindly bear this in mind, your Lordships can say this kind of criticism should not be made. I will leave it to your Lordships to decide what is to be done".

Justice Mishra then turned to Attorney-General for India KK Venugopal for his final comments.

The AG submitted to the Bench that there were third parties involved in the matter – the Judges against whom the comments had been made, and whether Bhushan's defence could be taken into account without hearing those Judges.

"Hearing those Judges would mean a never-ending inquiry. So, your Lordships can say that his defence cannot be taken into account. Therefore, your Lordships can leave the matter at rest as it is now, by saying that his defence cannot be looked into", submitted the AG. 

To this, Justice Mishra stated that there were allegations against sitting judges as well and asked the AG if those allegations should be made. AG responded that that was a different subject. 

Justice Mishra then said, "When the Judges are speechless, who will protect them? Only the Bar will protect them. Only the Attorney will protect them. How long the system will suffer this criticism?", said Justice Mishra.

He then proceeded to ask the AG about whether there was any in apologizing. 

"Tell us what is wrong in using the word 'apology'? What is wrong in seeking apology? Will that be reflection of the guilty? Apology is a magical word, which can heal many things. I am talking generally and not about Prashant. You will go to the category of Mahatma Gandhi, if you apologise. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that", observed Justice Mishra.

Justice Mishra then said to the AG, "You have known him as a child. You have special love and affection for him. I don't consider myself elder enough to advise anyone".

He then noted that this was probably his last dialogue with the Attorney-Genera. On that note, the hearing was concluded.

Background

The Supreme Court bench has considered  the 'effect of the supplementary statement' filed by Advocate Prashant Bhushan whereby he refused to tender apology in the contempt case and reaffirmed that his tweets were 'constructive criticism'.

On the last day for tendering an apology, Bhushan filed a statement in SC today stating that an apology would be a "contempt of his conscience".

He stressed that as an officer of the court, he has a duty to "speak up" when he believes that the Judicial institution is deviating from its sterling record.

"Therefore I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples' rights," he said.

He said that he made bonafide remarks with full details. However, the same has "not been dealt with by the Court". Thus, declining to tender an apology Bhushan said,

"My tweets represented this bonafide belief that I continue to hold. Public expression of these beliefs was I believe, in line with my higher obligations as a citizen and a loyal officer of this court. Therefore, an apology for expression of these beliefs, conditional or unconditional, would be insincere."

He stressed that an apology cannot be a "mere incantation" but has to be made sincerely.

"This is especially so when I have made the statements bonafide and pleaded truths with full details, which have not been dealt with by the Court. 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 affidavit filed through Advocate Kamini Jaiswal read.

He added,

"I believe that the Supreme Court is the last bastion of hope for the protection of fundamental rights, the watchdog institutions and indeed for constitutional democracy itself. It has rightly been called the most powerful court in the democratic world, and often an exemplar for courts across the globe. Today in these troubling times, the hopes of the people of India vest in this Court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive."

He said he read the SC order dated August 20 where he was asked to reconsider his statements with "deep regret" and responded thus

"I have never stood on ceremony when it comes to offering an apology for any mistake or wrongdoing on my part. It has been a privilege for me to have served this institution and bring several important public interest causes before it. I live with the realization that I have received from this institution much more than I have had the opportunity to give it. I cannot but have the highest regard for the institution of the Supreme Court."

On August 14, a 3-judge bench of the Supreme Court had held Bhushan guilty of contempt of court for his tweets against the SC and the Chief Justices of India.

During the hearing on the sentence held on August 20, Bhushan affirmed his comments and made a statement justifying his comments and expressed dismay at the Court verdict.

"My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic. I did not tweet in a fit of absence mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bonafide belief. Therefore, I can only humbly paraphrase what the father of the nation Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.", Bhushan said.

The bench was not appreciative of the statement and asked Bhushan if he would like to reconsider it. The bench also asked Attorney General about granting time to Bhushan to reconsider the statement. AG agreed that time can be given to him.

However, Bhushan stood by the statement and said that it was "well considered and well thought of". He said that granting time "will not serve any purpose" as "it was unlikely" that he will change it.

Nevertheless, the bench said that it will give him two or three days for him to reconsider the statement, and posted the matter for hearing on August 25.

Speaking at a Facebook Live session organized by the Students Federation of India on the topic "Decoding Democracy" on Saturday, Bhushan stressed on the need to speak truth to power and said that one should be prepared even to go to jail for that.

"We are at a difficulty juncture of history. We have to understand the worst assault that our Republic has ever seen on every value of the Constitution. Every institution set up the Constitution is under attack. We need to resist that. There is a concerted attempt to convert India into a Hindu State. There is an attempt to prevent people from speaking up. We need to resist that. We need to speak out. We need to speak truth to power. And, in that process, if they try and victimize us, they try and jail us, we should be prepared to suffer that. If we are not prepared for that today or tomorrow, then there will be nothing left to fight for", Bhushan said.