Thread by @LiveLawIndia, Prashant Bhushan Contempt : SC bench headed by Justice Arun Mishra to [...]

Prashant Bhushan Contempt : SC bench headed by Justice Arun Mishra to hear Prashant Bhushan @pbhushan1 on sentence for the offence of criminal content by scandalizing the court. On Aug 14, the SC had held him guilty for contempt of court over two tweets against CJI & SC.

Bhushan has filed an application seeking to defer the hearing by stating that he intends to file a review against the contempt verdict within the statutorily prescribed limitation period of 30 days. #PrashantBhushan https://www.livelaw.in/top-stories/prashant-bhushan-files-application-to-defer-sentence-hearing-in-contempt-case-161651

'Undertakes To File Review In 30 Days' : Prashant Bhushan Files Application To Defer Sentence...

A day ahead of the sentencing hearing in the contempt case, Advocate Prashant Bhushan filed an application before Supreme Court seeking deferment of the hearing on his sentencing. In his...

https://www.livelaw.in/top-stories/prashant-bhushan-files-application-to-defer-sentence-hearing-in-contempt-case-161651

Meanwhile, former SC judge, Justice Kurian Joseph, issued a statement suggesting that there should be a provision for intra-court appeal in suo moto contempt cases. https://www.livelaw.in/top-stories/prashant-bhushan-justice-kurian-joseph-seeks-intra-court-appeal-for-suo-moto-contempt-verdict-161646

[Breaking] Justice Kurian Joseph Seeks Intra-Court Appeal For Suo Moto Contempt Verdict; Says...

Former Supreme Court judge, Justice Kurian Joseph, has suggested that there should be a provision for intra-court appeal in verdicts passed by the top court in suo moto contempt cases.The

https://www.livelaw.in/top-stories/prashant-bhushan-justice-kurian-joseph-seeks-intra-court-appeal-for-suo-moto-contempt-verdict-161646

Prashant Bhushan Contempt : The matter has been taken. Senior Advocate Dushyant Dave making submissions.

Dave requests the bench to refer to Article 137 of the Constitution on the review power of the Court.

#PrashantBhushan

Dave also refers to Order 47 of SC Rules on the review power.

Justice Mishra says, 'we have no doubt about that'

#PrashantBhushan

Dave refers to Order 47 Rule 2 to say that 30 days time is available for filing review.

#PrashantBhushan

'I have got 30 days time to file review' : Dave submits for Bhushan.

#PrashantBhushan

Dave adds that the remedy of curative petition is also available.

#PrashantBhushan

Justice Mishra says that sentence hearing is consequential to the conviction. Both can be reviewed, right?, he asks.

"Can you say that consequential order cannot be passed. Judgment will be complete when it is totally pronounced", Justice Mishra.

#PrashantBhushan

'In the event we impose any punishment, we assure you that it will not be activated until the review is decided', Justice Mishra tells Dave.
#PrashantBhushan

'We will be fair to you, whether or not you are fair to us': Justice Mishra tells Dave.

#PrashantBhushan

Justice Gave says the review could have been filed even now.

#PrashantBhushan
@pbhushan1

Justice Gavai says that there should not be an impression that there is an effort to avoid the bench of Justice Mishra.

#PrashantBhushan
@pbhushan1

Dave replies, why the bench should give the impression that this bench wants to decide everything before Justice Arun Misra retires.

#PrashantBhushan #contemptofcourt

Dave urges that the matter of punishment be considered by a different bench.

Justice Gavai says that request cannot be accepted.
#PrashantBhushan #contemptofcourt

Dave : Heavens are not going to fall if your lordships defer the hearing till the review is decided. It is not necessary that this very bench should consider the sentence.
#PrashantBhushan #contemptofcourt

Justice Mishra says that it is never done like that.

"It (referring sentence hearing to another bench) is not appropriate. It is against established procedure and norms. Suppose if I am not emitting office, can it be ever thought of?", Justice Mishra says.

#PrashantBhushan

Justice Mishra reiterates the assurance: "We assure you will not do anything to defeat your right of review. We are not proposing to defer the sentence hearing".

#PrashantBhushan #contemptofcourt
@pbhushan1

'If your lordship's conscience dictates that the hearing on sentence should be done now, I bow down. Your lordships have made a fair suggestion' : Dave.

#PrashantBhushan #contemptofcourt
@pbhushan1

Justice Gavai : You could have filed review even now. Statement was made by Dr. Dhavan on Aug 17 that review will be filed.

Dave : Why should I file review now? Then SC Rules must be amended to say review should be filed within 24 hours.

#PrashantBhushan
@pbhushan1

Dr Rajeev Dhavan now requests the bench to hear the Attorney General on the issue and says that he will make submissions on hearing after that.

#PrashantBhushan
@pbhushan1

Attorney General : Your lordships had issued notice to me. If your lordships want to hear me, I will be happy to submit.

#PrashantBhushan
@pbhushan1

Justice Mishra tells AG that the bench is not inclined to entertain the petition for deferring hearing, and that there was no need to hear AG on that application.

#PrashantBhushan #contemptofcourt
@pbhushan1

Dave tells the bench that the AG has been waiting in the matter after notice.

Justice Mishra says "we are not aware of it. Don't remind us about that".
#PrashantBhushan #contemptofcourt
@pbhushan1

"Please have a congenial atmosphere. Don't go to all this extent, Dave saab. We have to maintain the dignity of our system" , Justice Mishra tells Dave.

#PrashantBhushan #contemptofcourt
@pbhushan1

Dr. Dhavan says that he does not support the adjournment application.

"We don't go judge-hunting. It is immaterial if this judge is retiring or that judge is hearing", Dhavan says.
#PrashantBhushan #contemptofcourt
@pbhushan1

Dhavan says that Bhushan @pbhushan1 would like to make a statement.
#PrashantBhushan #contemptofcourt
@pbhushan1

I am pained at the verdict that the Court held me guilty. I am pained that I am grossly misunderstood. I am shocked that the court concluded at the conclusion without providing any evidence about my motives : Bhushan submits.
#PrashantBhushan #contemptofcourt
@pbhushan1

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 : Bhushan submits.
#PrashantBhushan #contemptofcourt
@pbhushan1

I believe that open criticism is necessary in any democracy to safeguard the constitutional order. Saving the constitutional order should come about personal or professional interests. My tweets were a small attempt to discharge what I consider my highest duty : Bhushan

"I do not ask for mercy. I do not appeal for magnanimity. I cheerfully submit to any punishment that court may impose", Bhushan says quoting Gandhi.

#PrashantBhushan #contemptofcourt

My tweets were out of a bona fide attempt to discharge my duty as a citizen. 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. It would be contemptuous on my part to offer apology : Bhushan

Dhavan now making submissions.

"There has been a considerable disquiet about four Chief Justices over six years", he submits.

@pbhushan1
#PrashantBhushan

Dhavan submits that these issues have been commented about a lot in public.
@pbhushan1
#PrashantBhushan #contemptofcourt

"I ride a Royal Enfield. But when I go out I always wear a mask" : Dhavan.

@pbhushan1
#PrashantBhushan #contemptofcourt

Dhavan says the nature of the person also should be taken into consideration.

He says the Kurle case was a "nasty case".
@pbhushan1
#PrashantBhushan #contemptofcourt

Dhavan says two factors are important for sentence. :

1. Nature of offence - there are already public discussions about the working of judiciary in recent times.

2. Nature of person/contemnor

#PrashantBhushan #contemptofcourt

'Your lordships must examine the person. Because that goes into the roots of the bona fides", Dhavan submits that the character and contributions of Bhushan @pbhushan1 must be taken into account for the purpose of the sentence.

#PrashantBhushan #contemptofcourt

Dave refers to several Prashant Bhushan cases - coal scam, Orissa mining case, FCRA case (whether foreign funds can be used for political funding), powers of CVC, 2G case, SIT in high profile corruption cases etc.

#PrashantBhushan #contemptofcourt @pbhushan1

'These proceedings have attracted more attention than the original tweets themselves, which are transitory", Dhavan.

#PrashantBhushan #contemptofcourt @pbhushan1

Dhavan continues to recount cases fought by Bhushan : Police reforms case, slum dwellers cases, gram nyayala case, RTI cases etc.
#PrashantBhushan #contemptofcourt @pbhushan1

"All these cases are pro bono.

So, please consider - is this persons simply attacking the court or is criticising for improving the administration of justice", Dhavan.
#PrashantBhushan #contemptofcourt @pbhushan1

'When your lordships August 14 judgment reaches various academies, it will be severely criticized. Most of the judgment is 'cut-paste' from Vijay Kurle judgment and other judgments' : Dhavan.

#PrashantBhushan #contemptofcourt @pbhushan1

'Dr. Dhavan, don't worry about that. We don't mind fair criticism' : Justice Mishra tells Dhavan.

#PrashantBhushan #contemptofcourt @pbhushan1

Justice Mishra says that there is a need for balancing and restraint.
"You are part of the system. In zeal of overdoing, you cross the lakshman-rekha. No body should cross. Doing good things is welcome. We appreciate efforts of filing good cases".
#PrashantBhushan @pbhushan1

"I have not taken contempt against a single person in my judicial career. Balancing and restraint are issues" : Justice Mishra.
#PrashantBhushan @pbhushan1 #contemptofcourt

Justice Mishra says he agrees with Dhavan that the power to punish for contempt under Article 129 must be used sparingly and with restraint.

#prashanthbhushan #contemptofcourt @pbhushan1

Dhavan refers to a judgment of Justice Arun Mishra as CJ of Calcutta HC which refrained from taking contempt against Mamata Banerjee for her remarks against judges.

#prashanthbhushan #contemptofcourt @pbhushan1

Dhavan says that the balance of contempt power under Article 129 comes from Article 19 of the Constitution.

#prashanthbhushan #contemptofcourt @pbhushan1

Dhavan refers to Section 13 of the Contempt of Courts Act.
#Bhushan
#PrashantBhushan
@pbhushan1

It is not enough that there should be some technical contempt. It must be shown that that the act of contempt must "substantially interfere with the administration of justice" : Dhavan says referring to Section 13 of the Contempt of Courts Act.

It is not enough for the court to say that the remarks as scurrilous and all. The Court has to state that the comments have "substantially interfered with the administration justice" : Dhavan.

#Bhushan #PrashantBhushan @pbhushan1

As some commentator has said, how can a comment about CJI seated on a bike affect the administration of justice : Dhavan.

#Bhushan #PrashantBhushan @pbhushan1

Dhavan now refers to Section 13(2) of the Contempt of Courts Act to say that 'truth is defence' in contempt proceedings.

#Bhushan #PrashantBhushan @pbhushan1

Dhavan says that the copy of the complaint was not served to Bhushan @pbhushan1 though he applied for it.

Justice Mishra says that the Court proceeded on the basis of the tweets and not the complaint. You have not disputed the tweets too, Justice Mishra says.

#Bhushan

Dhavan says " I am entitled to the copy of the complaint. Vijay Kurle (decision) says it".

Justice Mishra says if the case is taken suo moto ,the complaint is irrelevant.

#Bhushan #prashanthbhushan #contemptofcourt

Dhavan submits that the reply of Bhushan was not simply taken into account.
#Bhushan #prashanthbhushan #contemptofcourt

Justice Mishra in reply says that Dave said to ignore all that (affidavit) and only argued other points.

#Bhushan #prashanthbhushan #contemptofcourt

Justice Gavai says that Dave only referred to the earlier part of the affidavit, which was considered in the judgment and did not rely on the other parts of the affidavit.

#Bhushan #prashanthbhushan #contemptofcourt

Justice Gavai says that Dave had only taken us to page 40 of the affidavit and did not refer to the other parts.

#Bhushan #prashanthbhushan #contemptofcourt

Dhavan says that what Dave said was that it would be embarrassing to read the other portions of the affidavit.
#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Justice Mishra : Dr. Dhavan why you are entering into all this?

Dhavan : Section 13(2) gives the defence of truth.

Justice Mishra : Is this a defence or an aggravation?

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Justice Mishra: I request you. Think over. If you invite us to read all this, we will have to decide all this. We will have to decide if it is a defence or an aggravation. You might be thinking it is a defence.

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Dhavan : Even if this affidavit had not been filed earlier, I can say even at the sentencing stage that truth is my defence.
#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Dhavan refers to paragraph 62 of the affidavit. Mentions it is about (names the CJI).

Jusitce Mishra : Please don't take names. It is not good for the system. Not necessary, Dr.Dhavan.

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Dhavan now refers to various paragraphs of the affidavit of #Bhushan (without taking names) where he justifies his statements with respect to past Chief Justices.

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Dhavan reiterates that these portions are relevant for the bona fides and truthfulness of #Bhushan with respect to sentencing in the contempt case.

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

The relevant issue here is, did Mr. Bhushan has provided any justification or foundation for his tweets : Dhavan.
#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Justice Mishra : Dr. Dhavan, let us not go into all this. It is not necessary to make all this.

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Why is a tweet which says that history will examine the court in a particular manner be held to be contempt? Dhavan asks.
#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

It is necessary to go into the question of 'substantial interference with justice' : Dhavan.

#Bhushan #prashanthbhushan #contemptofcourt
#SupremeCourt

Justice Mishra says "we are quite impressed by the list( of cases fought by #Bhushan pro bono)".

This will weigh in your favour (with respect to sentencing) : Justice Mishra says.

#JusticeMishra #PrashanthBhushan @pbhushan1

'Should we not give an opportunity to #PrashanthBhushan to think over and come back to us after 2-3 days?' Justice Arun Mishra asks Attorney General.

#JusticeMishra #PrashanthBhushan @pbhushan1

'It would be good for your lordships to give him time. Please give him time' : Attorney General says.

#JusticeMishra #PrashanthBhushan @pbhushan1

Justice Gavai asks Bhushan : Would you like to reconsider your statement?

Bhushan : I don't want to reconsider the statement. As regards giving time, I don't think it will serve any useful purpose.
#JusticeMishra #PrashanthBhushan @pbhushan1

Justice Mishra : But we would like to give you time. Later on, there should not be a complaint that time was not given.
#JusticeMishra #PrashanthBhushan @pbhushan1

#Bhushan says that his statement was "well-considered and well thought of".

"If your lordships want to give me time, I welcome. But I don't think it will serve any useful purpose and it will be a waste of time of Court. It is not very likely that I will change my statement".

We will give you two-three days time. Think over. You must think over. We should not give verdict right now : Justice Mishra.

#PrashanthBhushan #Bhushan #JusticeMishra

Justice Mishra says Dhavan can complete the legal arguments today, and the bench will give time to Bhushan to think over his statement.
#PrashanthBhushan #Bhushan #JusticeMishra

Dhavan refers to General Clauses Act to refer to meaning of 'bona fides'. Says a thing done honestly will be regarded as bona fide, even if it was done negligently.

#PrashanthBhushan #JusticeMishra #Bhushan

Dhavan refers to Mulgoakar case, where Justice Krishna Iyer suggested that judiciary should ignore comments against it.

Mulgoakar guidelines are a part of 'lakshman rekha'.
#PrashanthBhushan #JusticeMishra #Bhushan

Dhavan says the Court did not examine how the tweets were "scurrilous". The conclusion was reached without considering the justification of #PrashantBhushan, he says.

@pbhushan1 #JusticeMishra #Bhushan

Dhavan : Dave did not want to embarrass the court (by reading the full affidavit). I do not want to embarrass the court. But the Court did not consider the affidavit.

@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

#Bhushan's statements have been echoed and supported by Justices Lodha, AP Shah, Lokur and Joseph. Are they in contempt also? They also take the view that the proceedings are wrong : Dhavan.

@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

Justice Gavai says that Justice Lodha's comment was only on the point of procedure.

Dhavan says others have endorsed Bhushan's statements. Over 1000 lawyers have expressed supported him, he adds.
@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

The bench says that during virtual hearing several cases were heard.

Section 6 HSA case was decided in virtual hearing, Justice Mishra says.

@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

Due to some connection problems, Dhavan has got disconnected.

@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

Bench now discussing with Attorney General.

"I request your lordships not to punish him (Bhushan)", AG Venugopal says.

@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

'We cannot consider your proposal(of not punishing him) unless he rethinks his statement', Justice Arun Mishra tells Attorney General.

@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

'We will have to consider whether his statement was defence or aggravation', Justice Mishra tells AG. Requests AG to consider the complete submissions and entire gamut of statement before taking a stand.
@pbhushan1 #JusticeMishra #Bhushan #PrashanthBhushan

Dhavan has now re-connected. Continuing submissions.
@pbhushan1 #JusticeMishra #Bhushan #prashanthbhushan #SupremeCourt

Dhavan submits that unless the Court shows how the statements were 'substantial interference with administration of justice', the purpose of Section 13 of the Contempt of Courts Act will be defeated.

#SupremeCourt #PrashantBhushan

Dhavan reiterates that three former judges of the SC have supported Bhushan.

"Please don't invite our comments on that. Please don't argue all this", Justice Mishra tells Dhavan.

#PrashantBhushan #Bhushan @pbhushan1

A supposed contemptuous statement, if repeated will be contempt. Affirmation of contempt will be contempt. This is where all newspapers and publications will come in : Dhavan.

#PrashantBhushan #Bhushan @pbhushan1

'Are you arguing review or sentence?': Justice Mishra asks Dhavan.

#PrashantBhushan #Bhushan @pbhushan1

Dhavan says that as per Section 12 of Contempt of Courts Act, an apology cannot be rejected merely because it is conditional or qualified. Bona fides is the relevant factor.

#PrashantBhushan #Bhushan @pbhushan1

'When we hear on sentence, on the point of bona fides, the person must realize that he has made some mistake. That realization must come from the person' : Justice Mishra.
#PrashantBhushan #Bhushan @pbhushan1

'We do not enjoy punishing individuals. The purpose of sentence, for me, is deterrence.
Mistakes can be committed by anyone. In such a case, person must realize that and admit to it' : Justice Mishra.
#PrashantBhushan #Bhushan @pbhushan1

Dhavan says that there are HC judgments which say criticism of HC judges cannot be contempt.

"What about the institution part?", Justice Mishra asks.

#PrashantBhushan #Bhushan @pbhushan1

Justice Gavai says that the judgment has come to the conclusion that the tweets affect the entire institution and not a few individual judges.
#PrashantBhushan #Bhushan @pbhushan1

'As far as contempt is concerned, you have to purge it. You have to purge yourself', Justice Mishra says referring to a precedent of Justice K T Thomas.

'The question of purging comes only in civil contempt', Dhavan replies.
#PrashantBhushan #Bhushan @pbhushan1

'When it comes to sentencing, we can be lenient only when the person tenders apology and realizes the mistake in the real sense', Justice Mishra.

#PrashantBhushan #Bhushan @pbhushan1

The fact that you are doing many good things does not mean that your wrongs can be neutralized: Justice Mishra.
#PrashantBhushan #Bhushan @pbhushan1

There has to be mutual respect between the bar and the bench : Justice Gavai.

We have faith in the institution. I do. So does Bhushan : Dhavan
#PrashantBhushan #Bhushan @pbhushan1

Attorney General says that he has a list of five judges of SC saying that democracy has failed in Supreme Court.
He adds that he has extracts from statements of retired judges that there was corruption in higher judiciary.
#PrashantBhushan #Bhushan @pbhushan1

"If five judges of this court have held that democracy has failed...", AG says. Justice Mishra interferes before AG completes and says "we are not hearing on merits, Mr. Attorney".

#PrashantBhushan #Bhushan @pbhushan1

Senior Adv C U Singh submits that he has challenged the Registrar's order which rejected the application filed by persons to intervene in the contempt case.

"Registry has usurped judicial function. This will create problem in future', C U Singh.

#PrashantBhushan @pbhushan1

Justice Mishra tells CU Singh 'appeal is dismissed'.
#PrashantBhushan @pbhushan1

The hearing has concluded. The bench rises.

#PrashantBhushan @pbhushan1 #SupremeCourt #contemptofcourt

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