Supreme Court To Prashant Bhushan: What Is Wrong In Apologising?

The Supreme Court on August 25, reserved its verdict on sentencing advocate Prashant Bhushan who was held guilty of contempt for his July tweets that were "false, malicious and scandalous". The top court's decision came after hearing day-long arguments from Attorney General KK Venugopal and Bhushan's counsel senior advocate Rajeev Dhavan.

On August 24, Bhushan had filed a supplementary affidavit indicating that he stood by what he said in his first statement and refused to apologise submitting it "would be insincere". "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 the highest esteem," the supplementary statement read.

On August 20, the bench led by Justice Arun Mishra advised Bhushan to take "two to three days" to reconsider the statement he made during the hearing on sentencing. At the time, Bhushan had said that the statement he had made "was well-considered and thought out".

"It is unlikely there shall be a change. I don't want to waste your time," Bhushan had then said.

Court must show statesmanship

During the hearing, the bench asked Venugopal to "guide" the court on this issue. The AG reiterated the opinion he made in the last hearing and asked the court to forgive Bhushan.

"From time to time, retired judges and sitting judges have been making comments. These statements could only be We have serious statements by five judges about Supreme Court having failed to maintain democracy."

"These statements are telling the court to reform the court…that you should look at the unclear and reform yourself. They seek the improvement of the administration of justice," the top law officer added. Venugopal said Bhushan could be let go with "A warning to 'please' not repeat this in future."

"He need not be punished," Venugopal said.

"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 and leave it at that," Venugopal said adding that he was also speaking for the bar.

Punishing Bhushan under the contempt of courts act would not resolve the issue, Venugopal said. I don't think you should go to the extent, Venugopal observed.

"Let this court show statesmanship and not use the powers of the contempt because of this affidavit," Venugopal said.

What is wrong in apologizing?

The apex court, however, was not inclined toward Venugopal's opinion. The court observed that reprimands would not work. How can we let Bhushan with a simple reprimand when he (Bhushan) admits he hasn't made a mistake?" the bench said.

"Everyone makes a mistake but the person must also realize it. What to do now?" Justice Mishra said responding to Venugopal's suggestion. "If he believes he has done no wrong, what's the purpose of this warning?" the bench, which also comprised Justices BR Gavai and Krishna Murari, added.

Referring to the Bhushan's reply in the matter where Bhushan had criticized the court for being "executive-minded", the court said, "What do you say to this? How do we not consider all this? Prioritization of cases has also been adversely commented upon. Ayodhya case has been commented upon. Which judge is left out (in Bhushan's criticism), sitting or retired?"

Do not make Bhushan a martyr

When the hearing resumed after lunch, Dhavan who is representing Bhushan, submitted that the supplementary affidavit could be construed as "regret", but not an apology. An apology must not be made just to get out of court, Dhavan said. If you invite me for contempt, don't I have a right to defend myself? He added.

Referring to the matter where Justice Mishra—when he at the Calcutta High Court—had pardoned West Bengal Chief Minister Mamata Banerjee for her comment against the judiciary, Dhavan said, "This institution must have criticism, & not just criticism but extreme criticism. Your shoulders are broad enough."

"Courts will only survive on strong criticism," he added. Referring to former top court judges Madan Lokur and Kurian Joseph along with former Delhi high court judge AP Shah who had also commented on Chief Justice of India SA Bobde's tryst with the Harley Davidson—this was the subject of Bhushan's contemptuous tweet—Dhavan said, it then follows that they must also be held in contempt.

Rejecting, Venugopal's suggestion of a reprimand, Dhavan asked, "Should your Lordship reprimand, what is it that he won't do again? Never criticize the court? Put forth his opinion?"

A judgment asking Bhushan to exercise caution and to be a "little restrained" in future when he criticizes the courts should be statesmanlike and would go a long way in sending a right message. If you bar him from practising in court, you must hear him first, Dhavan said, but if you jail him, you will make him a martyr. "Do not make Prashant Bhushan a martyr," Dhavan submitted before the bench.

In conclusion, Dhavan advised the bench to end this controversy, which would gain traction should the court penalize Bhushan.