Prashant Bhushan contempt case: SC refuses to defer sentence hearing or transfer proceedings

The Supreme Court on Thursday rejected lawyer Prashant Bhushan’s request to adjourn the hearing on quantum of punishment in a suo motu criminal contempt case in which he was convicted last week and transfer it to another bench.

Bhushan, represented by advocate Dushyant Dave, requested the court to adjourn the hearing and said he intended to file a review petition against the August 14 judgment within the stipulated 30 days time as provided under Order 47 of the Supreme Court Rules of 2013.

A bench of Justices Arun Mishra, BR Gavai and Krishna Murari said sentencing will not be implemented till the review petition is decided. “Don’t worry, we will be fair to you...Even if you are not fair to us,” Mishra said. “We assure you will not do anything to defeat your right of review. We are not proposing to defer the sentence hearing.”

Meanwhile, Gavai claimed that it appears that Bhushan will file the review only after one of the judges in the bench retires. He was purportedly referring to Mishra, who will retire on September 3.

He also rejected Dave’s request that the matter of punishment in the case be considered by a different bench. “Heavens are not going to fall if your lordships defer the hearing till the review is decided,” Dave told the court, according to Live Law. “It is not necessary that this very bench should consider the sentence.”

Advocate Rajeev Dhavan, also representing Bhushan, told the judges that their verdict in the case would be severely criticised by academics. “About 20 pages is a clear cut and paste from Vijay Kurle case,” he added.

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The lawyer cited coal block allocation case, Orissa mining case, Foreign Contribution (Regulation) Act case and various other corruption cases which Bhushan brought before the Supreme Court. “Take all these cases together to see if this person is simply attacking the court or is he a worthy advocate of this court,” he asked. “Your lordships must examine the person. Because that goes into the roots of the bona fides. Tweets are transient in nature.”

Justice Mishra said there was a need to exercise balance and restraint. “You are part of the system,” he said. “In zeal of overdoing, you cross the lakshman-rekha [prescribed limits]. Nobody should cross. Doing good things is welcome. We appreciate efforts of filing good cases. I have not taken contempt against a single person in my judicial career. Balancing and restraint are issues.”

The judge added that the institution’s interest had to be protected, just like the counsel’s.

Dhavan questioned how Bhushan’s tweet on a photograph of Chief Justice of India Sharad A Bobde astride a bike, without a mask, affected court’s functioning and what they found in Bhushan’s tweets to make a “scurrilous attack”. Mishra told him that the court proceeded on the basis of the tweets and not the complaint.

It must be shown that that the act of contempt must “substantially interfere with the administration of justice”, Dhavan said, while referring to Section 13 of the Contempt of Courts Act.

‘Pained by



the judgement’: Prashant Bhushan

During the hearing, Bhushan also addressed the court and said he was “pained” by their judgement. “I am pained that I am grossly misunderstood,” he added. “I am dismayed that the court has arrived at the conclusion without providing any evidence about my motives. I am pained and shocked that the court did not provide me with the complaint on the basis of which the contempt was taken. I am dismayed that the court did not consider my reply affidavit.”

He told the judges that open criticism was necessary in any democracy to safeguard the constitutional order. “Saving the constitutional order should come before personal or professional interests,” he added. “My tweets were a small attempt to discharge what I consider my highest duty.”

The lawyer then quoted Mahatma Gandhi and said: “I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose.”

Bhushan added that it would be contemptuous on his part to apologise. “My tweets were out of a bona fide attempt to discharge my duty as a citizen,” he said. “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.”

The case

On Wednesday, Bhushan had moved the Supreme Court seeking to defer Thursday’s proceedings to announce his punishment till a review petition was filed and considered. In his application, the lawyer said he wanted to file a review petition after seeking legal counsel and studying the August 14 order in detail. Bhushan also pointed out that the court can stay contempt verdicts when such review pleas are pending. Failing to provide a chance for the lawyer to file a review plea would be in violation of his fundamental rights, the application said.

In the August 14 verdict, the court had said the magnanimity of judges cannot be stretched to the extent that it “may amount to weakness in dealing with a malicious, scurrilous, calculated attack” on the judiciary. This was in response to Bhushan’s statement that that the judges needed to be magnanimous and not use the contempt of court law for remarks on individual judges or on fair criticism of the judiciary. The court, however, said allegations against the Supreme Court may lead to a loss of faith in the judiciary and of confidence among other judges.

Following the judgement, more than 3,000 members of civil society including former judges, retired bureaucrats, journalists and lawyers criticised the Supreme Court’s order. The signatories said that expressing concern about the functioning of the judiciary was the fundamental right of every citizen. The signatories included former Supreme Court judges Ruma Pal, B Sudershan Reddy, Madan B Lokur, activist Harsh Mander and historian Romila Thapar.

Over 1,800 members of the bar have also criticised the Supreme Court’s decision, besides Opposition leaders, lawyers, and human rights organisations.

But, the Bar Council of Maharashtra and Goa on Wednesday unanimously passed a resolution to support the Supreme Court’s decision to hold lawyer Bhushan guilty of criminal contempt.