On Aug 25, a bench headed by Justice Arun Mishra had reserved orders on the sentence in the contempt case over two tweets of Bhushan, after he refused to apologize.
During the hearing, Justice Arun Mishra expressed disappointment at Bhushan issuing a supplementary statement to justify his tweets after asserting his disinclination to tender apology.
"Tells us, what is wrong in using the word 'apology'? What is wrong in seeking apology? Will that be reflection of the guilty? Apology is a magical word, which can heal many things. I am talking generally and not about Prashant. You will go to the category of Mahatma Ganghi, if you apologise. Gandhiji used to do that. If you have hurt anybody, you must apply balm. One should not feel belittled by that", observed Justice Mishra while reserving orders on sentence.
Senior Advocate Rajeev Dhavan, Bhushan's counsel, submitted that he was not seeking the mercy of the court and was seeking "judicial statesmanship".
Dhavan also submitted that punishing Bhushan will make him a "martyr".
The Attorney General for India, K K Venugopal, requested the bench to not punish Bhushan and to let him off after a reprimand or a warning.
On the last day for tendering an apology, Bhushan filed a statement in SC stating that an apology would be a "contempt of his conscience".
He stressed that as an officer of the court, he has a duty to "speak up" when he believes that the Judicial institution is deviating from its sterling record.
"Therefore I expressed myself in good faith, not to malign the Supreme Court or any particular Chief Justice, but to offer constructive criticism so that the court can arrest any drift away from its long-standing role as a guardian of the Constitution and custodian of peoples' rights," he said.
"My tweets represented this bonafide belief that I continue to hold. Public expression of these beliefs was I believe, in line with my higher obligations as a citizen and a loyal officer of this court. Therefore, an apology for expression of these beliefs, conditional or unconditional, would be insincere", his statement read.
He stressed that an apology cannot be a "mere incantation" but has to be made sincerely.
"This is especially so when I have made the statements bonafide and pleaded truths with full details, which have not been dealt with by the Court. 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 highest esteem," the affidavit filed through Advocate Kamini Jaiswal read.
"I believe that the Supreme Court is the last bastion of hope for the protection of fundamental rights, the watchdog institutions and indeed for constitutional democracy itself. It has rightly been called the most powerful court in the democratic world, and often an exemplar for courts across the globe. Today in these troubling times, the hopes of the people of India vest in this Court to ensure the rule of law and the Constitution and not an untrammeled rule of the executive."
He said he read the SC order dated August 20 where he was asked to reconsider his statements with "deep regret" and responded thus
"I have never stood on ceremony when it comes to offering an apology for any mistake or wrongdoing on my part. It has been a privilege for me to have served this institution and bring several important public interest causes before it. I live with the realization that I have received from this institution much more than I have had the opportunity to give it. I cannot but have the highest regard for the institution of the Supreme Court."
On August 14, a 3-judge bench of the Supreme Court had held Bhushan guilty of contempt of court for his tweets against the SC and the Chief Justices of India.
During the hearing on the sentence held on August 20, Bhushan affirmed his comments and made a statement justifying his comments and expressed dismay at the Court verdict.
"My tweets were nothing but a small attempt to discharge what I considered to be my highest duty at this juncture in the history of our republic. I did not tweet in a fit of absence mindedness. It would be insincere and contemptuous on my part to offer an apology for the tweets that expressed what was and continues to be my bonafide belief. Therefore, I can only humbly paraphrase what the father of the nation Mahatma Gandhi had said in his trial: I do not ask for mercy. I do not appeal to magnanimity. I am here, therefore, to cheerfully submit to any penalty that can lawfully be inflicted upon me for what the Court has determined to be an offence, and what appears to me to be the highest duty of a citizen.", Bhushan said.
The bench was not appreciative of the statement and asked Bhushan if he would like to reconsider it. The bench also asked Attorney General about granting time to Bhushan to reconsider the statement. AG agreed that time can be given to him.
However, Bhushan stood by the statement and said that it was "well considered and well thought of". He said that granting time "will not serve any purpose" as "it was unlikely" that he will change it.
Nevertheless, the bench said that it will give him two or three days for him to reconsider the statement, and posted the matter for hearing on August 25.
It was on July 22 that the bench headed by Justice Arun Mishra issued contempt notice to Bhushan in a suo moto case taken with respect to two of his tweets on judiciary and the Chief Justice of India.
The bench, also including Justices B R Gavai and Krishna Murari, prima facie, observed that his tweets "have brought disrepute to the administration of justice and are capable of undermining the dignity and authority of the Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of general public".
Read the SC order issuing contempt notice to Prashant Bhushan @pbhushan1 taking cognizance of his tweets. The Court said the tweets prima face "brought administration of justice into disrepute and are capable of undermining the dignity and authority of SC and office of CJI" https://t.co/If40NujWjm pic.twitter.com/i6AcgcMTWJ— Live Law (@LiveLawIndia) July 22, 2020