New Delhi, August 25: Lawyer-activist Prashant Bhushan, who has refused to apologise for his tweets on Chief Justice of India SA Bobde and the Supreme Court, should be pardoned with a warning, the government’s top lawyer KK Venugopal as well as his own lawyer argued Tuesday before top court judges. 

After an emotional statement by outgoing judge Arun Mishra, the court reserved its order, NDTV reported.

“If you are hurting someone, then what is wrong in apologizing,” Justice Mishra said. “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 to say you can say anything against retired judges?”

The Supreme Court had taken a 30-minute break from the hearing to allow Prashant Bhushan to think on withdrawing a 100-page statement he submitted on Monday, in which he not only refused to apologise but also said: “The hopes of the people of India vest in this Court to ensure the rule of law and the Constitution and not an untrammelled rule of the executive.” 

“Let him go with a warning to tell him ‘please don’t repeat this in future’,” the Attorney General said, urging the Supreme Court to “show statesmanship” and not use its power of contempt.

The Supreme Court said it had expected a different statement from Bhushan. “It was painful to read his reply in justification of his tweets. It was absolutely improper. This is not the way a senior lawyer like Prashant Bhushan with over 30 years of experience should behave. And it is not just him, this has become very common now,” said the court.

In his statement, Bhushan, held guilty of contempt, refused to retract or apologise for his tweets after the three-day time window given by the top court. He said the tweets represented a bonafide belief that he holds and an apology, conditional or unconditional, would be insincere. Retracting now would be a “contempt of my conscience” and the court, he said.

The government lawyer said several sitting and retired judges had commented on corruption in the higher judiciary. “These statements would only be to tell the Court that you should look at the unclear and reform yourself,” Venugopal said.

Responding to the Attorney General’s suggestion, Justice Arun Mishra said: “But he doesn’t think whatever he did was wrong. He did not submit an apology… People make mistakes, sometimes even in bona fide mistakes are made. But he does not think he did anything wrong. What to do when someone does not think they did something wrong?”

Venugopal replied: “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.” He said it would be “tremendously appreciated” if the court left it at that and took a compassionate view. 

“If he believes he has done no wrong, what’s the purpose of this warning,” Justice Mishra questioned. Noting that Mr Bhushan “gave colour” to a simple case about his tweets, Justice Mishra said: “He has made several disparaging remarks against this institution, judges of this court.”

When the Attorney General requested the court not to consider his response, Justice Mishra said: “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 we deleted this on our own.”

Venugopal argued that Bhushan had expressed regret in the 2009 contempt case over remarks on corruption in judiciary. “Let him say this in the present matter too and say he expresses regret. That will be the statesmanship.”

Justice Mishra picked another point from Bhushan’s statement. “His reply says this court is becoming executive-minded. What do you say to this? How do we not consider all this? Prioritisation of cases has also been adversely commented upon. Ayodhya case has been commented upon. Which judge is left out, sitting or retired,” he asked.

Bhushan’s lawyer Rajeev Dhavan said: “This institution must take criticism, and not just criticism but extreme criticism. Your shoulders are broad enough.” He also recalled how Justice Mishra, as a judge in the Calcutta High Court, let go of Mamata Banerjee after she said all judges were corrupt.

In the last hearing on Thursday, the court had sought an unconditional apology and had asked the 63-year-old to “reconsider” his statement. 

Bhushan’s lawyer said: “no court can pass an order like this. It was an exercise in coercion. This is wrong jurisprudence.” He said an apology “cannot be a mere incantation, an apology has to be sincerely made and he (Bhushan) sincerely says that ‘this is my belief’.”

Requesting the court to recall its judgment convicting Bhushan, Dhavan said: “An apology cannot be coerced. This was not scurrilous, this was a strong criticism of this court which is shared by several others in this country.”

He added: “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 little restrained in future should be enough.”

When the court asked what should be Bhushan’s punishment, the lawyer said: “Don’t make him a martyr, this controversy will continue depending on what punishment this court gives to him. And this controversy will end only if this court shows statesmanship.”

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