New Delhi: Attorney General (AG) K.K. Venugopal Tuesday reiterated that advocate-activist Prashant Bhushan — convicted for contempt of court — should not be punished, but he must express “regret” and withdraw his 132-page affidavit filed in support of his two tweets against the present chief justice of India (CJI) and four former CJIs.

“If there is an expression of regret, and if the affidavit is withdrawn, perhaps the case can be dropped. It will be better to resolve the issue. The court could warn him and drop the issue,” Venugopal told a bench led by Justice Arun Mishra, who assembled to hear arguments on the quantum of punishment to be imposed on Bhushan.

The court held the hearing because Bhushan had refused to tender an unconditional apology, which it had asked for during the last hearing on 20 August. After a three-hour hearing, the bench reserved its verdict.

The AG maintained that the court on its part should take a compassionate view in the case and not punish Bhushan, even as it has held him guilty of contempt.

Bhushan was on 14 August indicted for contempt of court after the SC found his tweets against the institution, the present and former CJIs derogatory. 

In his 132-page affidavit, filed in response to the court’s contempt notice, Bhushan had explained the context in which he had put out the two tweets in July, and claimed that the judiciary as an institution had collapsed and become an extension of the executive.

Justice Mishra expressed his anguish at Bhushan’s affidavit, saying citizens tend to believe in him because he has a standing of 30 years in the legal profession.

“They will think whatever he is saying is correct,” the judge added, deprecating the recent trend of lawyers speaking to the press in sub-judice matters. “There is a difference between an officer of the court and a politician,” he said.

He also added that it was painful for him to decide the case days before he is due to demit office on 2 September.

Venugopal asked to guide the court

Although Venugopal was present on the last date, the court did not hear him at length, raising eyebrows in the legal circles.

On Tuesday, the bench at the outset asked him to guide the court. Venugopal began his arguments by defending Bhushan’s remarks alleging corruption in the judiciary and pointed out statements of retired judges on the issue. He asked the court to end the matter with a warning as it was not necessary to punish Bhushan.

The AG recalled the contempt case he had filed against Bhushan last year. But the bench reminded Venugopal that he withdrew the case only after Bhushan apologised for the incorrect statement he made with regard to him.

However, in this case, the bench said, Bhushan felt he committed no wrong. “He is not at all apologetic. The only positive part of his statement is that he has the highest respect for this court. We had given him three days to think over it so that there could be a quietus to it. But he chose not to do so,” the bench said.

‘Despising remarks against judges’

Venugopal mentioned before the court the statements given by former top court judges in support of Bhushan, but the bench said they would not get influenced by it, but would surely weigh in Venugopal’s suggestions.

Justice Mishra then pointed to Bhushan’s affidavit and said: “There is criticism that we have not considered his affidavit. We have and find despising remarks against judges. He has commented on the Ram Janmabhoomi case, without realising that only one judge from that bench has retired (referring to former CJI Ranjan Gogoi), while the rest are still serving.”

The bench insisted Venugopal read the contents of the affidavit and pointed out paragraphs to him, which the AG read.

The AG disagreed with Bhushan’s comments that the institution had collapsed, and termed the impeachment case against former CJI Dipak Misra — referred in Bhushan’s affidavit justifying his tweets — political, while asserting the SC had done a lot to rescue the poor and prisoners during the Covid-19 lockdown. He even differed from Bhushan’s remarks that the judiciary had become “more executive-minded than the executive”.

Yet, the AG beseeched the bench not to punish Bhushan. “In the 2009 case, he expressed regret. Likewise, if he expresses regret in this case, that should be the end of this unfortunate case,” he said.

‘You quote Mahatma Gandhi but you can’t apologise’

Senior advocate Rajeev Dhavan, Bhushan’s counsel, also requested the court not to reprimand Bhushan, but lay down a code for people to follow. 

He urged the bench not to make Bhushan a martyr by sending him to jail. And, if the court wanted to bar him from practising, then it would have to hear him first, Dhavan submitted.

Before the bench concluded the hearing in the case, Justice Mishra spoke out against lawyers rushing to the media even before a case was heard.. 

He wondered what stopped people from apologising if they had hurt someone. “You quote Mahatma Gandhi but cannot apologise” he told Dhavan.

According to Mishra, the bar and bench need to respect each other to preserve the institution. 

Criticism, he said, was welcomed but not attack or attribution of motives. “Judges are condemned, their families are humiliated and they cannot even speak. Judges cannot go to the press. They are speechless. Who will protect them, if not the bar,” said Justice Mishra.

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