NEW DELHI: A three-judge bench of Justices Arun Mishra, B R Gavai, and Krishna Murari reserved the verdict on the quantum of punishment to be awarded to advocate Prashant Bhushan in the suo motu contempt of court case for his two tweets criticizing the judiciary. Here is the courtroom exchange:
Justice Mishra asks Attorney General K K Venugopal: Tell us what is to be done.
Venugopal: Give him (Prashant Bhushan) a warning and let him go.
Justice Mishra: There is a positive part of the statement by Prashant Bhushan in which he says he has faith in this institution. But at the same time he says, he won't apologise since he hasn't made any mistake. Everyone makes mistakes but the person must also realise it. What to do now?
Justice Mishra: If a person says he didn't make a mistake and he won't apologise for it despite repeated opportunities, what will be the purpose of saying don't do it again. It is not about us or him. It is about the institution after all.
Venugopal: I myself wanted to file a contempt against Prashant Bhushan when two CBI officers were fighting and he said I fabricated documents. But after he expressed regret, I withdrew. Let the democracy follow in this case when he has exercised his free speech. It will be tremendously appreciated if the court leaves it at that. Even if he says he hasn't done anything wrong, this court should take a compassionate view. I speak for the Bar also.
Justice Mishra: If he believes he has done no wrong, what's the purpose of this warning?
Justice Gavai: Mr. AG, you too filed a contempt against Mr. Bhushan and withdrew it only after he expressed regret. But that's not the case here
Justice Mishra: He has made several disparaging remarks against this institution, judges of this court. Even in Ram Janma Bhoomi, only one judge has retired, the rest of them are still in this court.
Venugopal: He won't do this again.
Justice Mishra: Let him say this. It was so simple. The case was about two tweets but he later have colours to these tweets and filed additional explanations and arguments.
Venugopal: Let his response be not considered
Justice Mishra: How can we not? Everyone is criticising us that we haven't considered his response which according to us is even more derogatory. Now if we remove it, we will be blamed.
Venugopal: He has expressed regret in the 2009 matter. Let him say this in the present matter too and say he expresses regret. That will be the statesmanship.
Senior advocate Rajeev Dhavan for Bhushan: My duty as an officer of the court isn't synonymous with my duty as a lawyer for my client. I can't shut my eyes from either of the two. This isn't an offender who doesn't acknowledge his duty towards the court. He has contributed so much to this court. AG is right in pointing that out.
Dhavan: I myself described former CJI JS Khehar as a Sultan in the court and I demonstrated why and how. There was no contempt case against me.
Dhavan reminds Justice Mishra, as a judge in the Calcutta High Court, how he let go of Mamata Banerjee after she said all judges were corrupt. This institution must have criticism and not just criticism but extreme criticism. Your shoulders are broad enough.
Dhavan: If we read the last order that we give him time to submit an unconditional apology, it looks like as if a contemnor is coerced to give an apology so that it gets over. No court can pass an order like this. It was an exercise in coercion. This is wrong jurisprudence.
Dhavan: If I am indicted for contempt tomorrow, what do you expect me to do? Not raise a defence? You cited some pages and said this is wrong, this is wrong. I can take you back to those pages and say all those were his bonafide beliefs.
Hearing gets disrupted by power disconnection at Dhavan’s house
Justice Mishra: Attorney, there is no light.
Venugopal: He has thrown so much light already.
Dhavan: If Bhushan's statement is read as a whole, it says he has the highest regard for this institution but he has his opinion about the last 4 CJIs and the manner in which this court has gone wrong. We criticise this court when we feel sincere about this institution.
Dhavan: This court should invite criticism. It is the duty of all of us to make responsible criticism. Harley Davidson is hardly a criticism when this is in public domain.
Dhavan: Convicting judgment must be recalled. Apology can not be coerced. This was not scurrilous, this was strong criticism of this court which is shared by several others in this country.
Dhavan: When you say don't do it again, he is entitled to ask what is it that I don't do it again. Such reprimand or bald warning is too broad and shouldn't be done. One cannot be silenced forever. A message that he should be a little restrained in the future should be enough.
Dhavan submits that a judgment asking Prashant Bhushan to be a little restrained in the future when he criticises the courts should be like statesmanship and that this will go a long way in sending the right message.
Justice Mishra: If we decide to punish him, what should be the punishment?
Dhavan: A general message, not even a reprimand
Dhavan: If you want to bar him from practice, you will have to hear him first. If you want to impose a jail term, my advice would be don't make Prashant Bhushan a martyr. Like what happened after Babri was demolished and Kalyan Singh was convicted of contempt.
Justice Mishra: It was painful to read his reply in justification if his tweets. It was absolutely improper. There is a difference between an officer of the court and a politician. I am not commenting on Mr Bhushan. But that's what is happening nowadays. You go to press even in sub judice matters, make all kinds of comments when the court is already hearing it.
Justice Mishra: If someone with a standing of 30 years, like Prashant Bhushan, says something, people tend to believe him. They will think whatever he is saying is correct. Had it been someone else, it was easier to ignore but when Mr Bhushan says something, it has some effect.
Justice Mishra: It is about the system. If we are going to destroy each other, who will have faith in this institution? You have to be tolerant, see what the court is doing and why. Don't just attack. Judges can't go to press to defend themselves or explain.
Justice Mishra: Whatever we have to say, we have to write in our judgments. There are so many things but do we have to go to the press? I will never do that. That's the ethics for judges. If we are going to fight each other, pull each other down, we will finish this institution.
Justice Mishra: Haven't people been criticising us? So many people criticise us but how many people have we convicted or punished? There is another case against Mr. Bhushan pending since 2009, has he been punished there? I have to demit office and it is painful I have to deal with all this.
Dhavan: I completely agree that petitions should never go to press before they are heard by this court.
Justice Gavai: Will you justify statements by a lawyer to media about a case he has appeared in?
Dhavan: This shouldn't be done. I never did it after I appeared in Ayodhya case
Dhavan: Say in the judgment about the kind of code people should follow but the idea is not to silence Bhushan. A reprimand may have repercussions not clear at this stage. Please say in the judgment we don't agree with Mr. Bhushan but a code should be followed.
Venugopal: About his tweet on retired judges, can anything be said whether whatever has been said is correct or not. We cannot possibly go into this aspect without views of those judges. That would mean an inquiry that will go and on. Bhushan can't be punished until this inquiry concludes.
Venugopal: So my suggestion would be to give a quietus to this matter without getting into that exercise.
Justice Mishra: But there have been allegations against the sitting judges too. Should we call all judges here? Judges are condemned, their families are humiliated and they can't even speak. You are the leader of the bar. We expect you to be impartial. You may have love & affection for anyone but we want you to be fair. Don't take sides.
Justice Mishra: For how long the system will suffer all this. I am retiring in a few days. Will it be okay if you or others start attacking me? Why say you can say anything against retired judges?
Justice Mishra: What's so bad in apologising? If someone has made a mistake, what's wrong in seeking an apology? If you have hurt someone, why can't you apologise? I am not commenting on Mr. Bhushan right now. You go on to the extent of quoting Mahatma Gandhi but you can't apologise.