 Hello and welcome to NewsClick. I am Paranjoy Guha Thakuta and with me is senior advocate Sanjay Hegde. And we are going to discuss the proceedings in the Supreme Court of India on Thursday the 20th of April and specifically looking at the sentencing of advocate Prashant Bhushan by a three-judge bench headed by justice Arun Mishra and comprising justice Bhushan Gawai and justice Krishna Muradi. Sanjay Ji, the court took a decision to postpone the sentencing of Prashant Bhushan by two or three days. So before I ask you specifically to comment on the different observations that were made and the statement made by not just Prashant Bhushan but his lawyers, senior advocate Rajiv Dhawan and senior advocate Dushan Dhave, what are the implications? That means he has been given time for two or three days. Am I correct? Before the bench decides what should be his sentencing for contempt of court, for lowering the dignity of the Supreme Court of India, the apex court of India. So I first like you to give an overview and then I'm going to ask you a few specific questions. Previously they had found him guilty of contempt. That was the judgment a few days ago that's a 102-odd page judgment. Today the question was what sentence should be passed on him? They have finished the hearing on the sentence, they have now reserved their judgment. Their judgment will come after two, three days or four days. But that much time is given, is still available to Prashant Bhushan in case he wants to make any kind of statement, any kind of apology or if he wants to make any kind of submission which might have a bearing on the quantum of sentence. Now in contempt of court case, they could sentence him to a fine, they could also sentence him to imprisonment up to six months. This is discretionary. So if there is any statement or submission in the next few days which would have a bearing on the quantum of sentence, they are willing to hear that or take it on the record of the court. Senior advocate Sanjay Hegde, the judges, the bench asked Prashant Bhushan to think over his statement and whether he would like to modify his statement. But Prashant Bhushan was very very clear and he stated that his statement which he is issued and we can discuss that statement was well considered, well thought of and this is the exact words he used. If you, 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 for the court. It is not very likely that I will change my statement. This is what advocate Prashant Bhushan says. Now, then the question was, I mean, why would they give those extra two or three days and Justice Mishra had asked the Attorney General of India, Mr. KK Venugopal, whether the verdict should be postponed for a few days, two or three days. So kindly explain if Prashant Bhushan says it's unlikely, not very likely that he will change his statement, why then these few days and why ask the Attorney General for his views on the matter. Now, I'll come to the Attorney General's part a bit later. But as far as Prashant Bhushan and statement that it is unlikely, unlikely doesn't mean totally impossible. Not very likely. Not very likely. Absolutely impossible. There still is a little bit of a gray area there, isn't there? Absolutely. And as far as the court is concerned, the court doesn't want to rush to sentencing. It has already delivered judgment. It may not unfurl the full sentence if there is any possibility in terms of mitigation or which would influence them to remember their sense of justice with mercy as they see it fit. Then they would still like to have to give that time so that it not be said that they were in a rush to sentence. That's why the court has reserved its judgment and it will probably deliver it as I told you after three days, four days. And in any event, it has to be delivered before the 2nd of September when Justice Mishra retires. Okay, now comes to the point of the Attorney General. All right. As far as the Attorney General is concerned, the Attorney General has a very specific role under the contempt of courts act. Normally, if a private party seeks to initiate criminal contempt, the Attorney General has to give permission or in the absence of the Attorney General, the Solicitor General. If the Attorney General declines permission, the party can still go to court and challenge the Attorney General's declining of permission. Essentially, the role of the Attorney General under the contempt of courts act is to be a guardian of contempt. That is the specific phrase that textbook writers use. So here was the guardian of contempt who had not been asked exactly. Like Banko's ghost, he was hovering around the proceedings and you know, in these virtual hearing days, everybody has a link. Everybody is technically in attendance in court, but until and unless there's a specific question, good lawyers do not interrupt. So finally, the Attorney General at possibly in difference to both his constitutional position as well as his considerable standing in the bar. One of the oldest lawyers around was asked, what do you think should be done and that's his suggestions. All right. I'm going to come back to the Attorney General. Okay, I'll come back to the point about Justice Arun Mishra retiring. One of the points that was made by the Attorney General, Mr. Venugopal, and I'm quoting him exactly. He said, I request your lordships not to punish him, him meaning Prasad Bhushan. How do you interpret this observation made by Attorney General, Mr. Venugopal? If you do not implement face value, do not inflict any sentence of imprisonment. There are a vast range of options. You have convicted him already. You can find him. You can even say that his sentence till the rising of the court and rise immediately thereafter. Okay. So the authority of law is preserved by the conviction, by the recording of the conviction. As far as sentences concerned, people can go easy on the sentence. All right. You were asking something else. Yeah, you were talking about the theoretical possibilities of what could happen after a few days. Let me go back to a point you made. When Prasad Bhushan's lawyers pointed out as per the rules of the Supreme Court, a review petition can be filed in 30 days. That is, if the order of the Supreme Court was on the 14th of August, then a month down the line, a review petition can be filed. At which point of time, Justice Bhushan Gawai reportedly intervened and said it appears that the review petition will be filed only after one of the judges retires. Now, he was obviously without naming his brother judge who was on the bench. He was talking about Justice Arun Kumar Mishra who is chronologically the senior most judge in terms of age. And he's supposed to, he scheduled to retire on the 3rd of September. What are your observations? No, Justice Bhushan Gawai was stating fact. Normally, a review petition goes to the same set of judges who heard the original case. He was only pointing out that the same set of judges would not be available because Justice Mishra would have retired. That obviously a third judge would have to be named by the Chief Justice to join the bench and to hear the review. He possibly was telling the counsel that do not give an impression that you are avoiding any particular judge or you're seeking to avoid any particular judge. Finally hearing or disposing of the last stages of the matter. Okay. Senior Advocate Sanjay Hedde. Let's look at some of the points that were raised by Prashant Bhushan's lawyers. Not just Bhushan Gawai, in this case Mr. Rajeev Dhawan, the senior advocate. He pointed out there were five judges, five retired judges including four who retired from the Supreme Court and he named them actually. And their names are well known. Who had said that democracy had failed in the Supreme Court and that there was corruption in the judiciary. And these were retired judges, Madan Lokor, Justice Lodha, Justice Joseph and of course Justice A.P. Shah. So he also pointed out that these judges had supported Mr. Prashant Bhushan and did not want him. To be held guilty of contempt of court. And it's not just him, not just the former judges. It's interesting that there were over 1500 lawyers who have signed a statement or supporting him. And then and over a hundred of them actually stood in the rain in protest. And there have been over 3000 members of civil society and I include myself in that category who signed a statement saying that the apex court of the land was perhaps being, not perhaps was being excessively harsh on Prashant Bhushan by convicting him for contempt of court. So I'd like your thoughts on what I've said just now. No, it is obvious that many members of the bar and the public see this as something much beyond Prashant Bhushan. If somebody like Prashant Bhushan who has almost spent over 30 plus years in the Supreme Court, done very many cases, cases that have had consequences on the politics and the destiny of this country. If he has not not indulged in more verbal abuse, that's what I'm so is an idiot so and so is this and that. But has criticized the court in a tweet which says that future historians will say some are likely to remark upon what has happened in the past six years. Now that is criticism. That is dissent. That is not disrespect. It is not lowering the authority of the court or impeding its working in any manner whatsoever. It does not, to my mind at least, come within the definition of criminal contempt. So, and my views, I was one of those 1500 that you lawyers that you spoke of, but the number actually is, I think, currently at over 2000 people have kept on signing that thing on the internet. The point however is that the judiciary consists not of the judges alone. The court consists both of the bar, as well as the bench. We work together. What happens on the other side affects us also. And what happens to us, then affects the citizens right to seek justice, which is independent and impartial. If even lawyers of the court have to be so circumspect in what they say that they almost seem to be bowing and scraping and doffing their hats to exalted lordship sitting above. Then that does not make for a strong bar or for an independent judiciary. Therefore, there was much more at stake than simply two tweets. Or the court's response to that. But let's look at the tweets are transitory tweets are transitory. All right, but your response defines institutions. I got you. But but let's briefly have a look at the tweets. You know, one was a picture of just the Chief Justice of India Justice Bob day sitting on a Harley Davidson bike that belong to a BJP leader. And and he was not wearing a mask and and Prashant Bhushan said while the court is locked down and justice is being denied. This is what Justice Bob day is doing. And the second tweet was really what you already mentioned about history will judge and a reference to four former judges who who said that what has happened is that the exact words is destruction of democracy in the Supreme Court. I mean, these two tweets are responsible for Prashant Bhushan being convicted of contempt of court. What what are your views you think the apex court of the land overreacted. I think the court should have been far more, not just thick skinned, but benevolent and magnanimous and more respectful of the fundamental right that every citizen has of the right to free expression article 19 one a of the Constitution. What are your views. Long ago, or in 1936, I think Lord Atkins said justice is no cloistered virtue. It must be allowed to suffer the respectful if outspoken comments of ordinary men. Prashant Bhushan may not be an ordinary man. But the comments were outspoken. But was it disrespectful. It is what future historians might remark on. I way I'm quite reminded of what Winston Churchill once said about a lot of people say he said all these men will be history, and I will be writing that history. So they what historians will write you have you had one more thing saying that history would be kinder to him than the media. Then the media of this. So what would it would historians agree with Prashant Bhushan's tweet or would it agree with a hundred and two page judgment. You should leave it to history to decide. Can you hold history in contempt. Okay that that's an interesting viewpoint you express. Whereas justice Arun Mishra and the bench he headed said that there was need to exercise balance and restraint. And they said that Mr Prashant Bhushan had crossed that proverbial Lakshman Rekha. And the Supreme Court clearly wanted him to have a sense of remorse or a sense of remorse for everything that he has done. But it seems to me that Prashant Bhushan if you go by his statement, he was not exactly remorseful. He said he was pain. He said he's been grossly misunderstood. He said the court did not provide him a copy of the complaint. And of course he quoted the father of the nation Maunthas Karamchand Gandhi and the exact quotes. I do not ask for mercy. I do not appeal for magnanimity. I will what he says cheerfully submit to any punishment that the court may impose. If I remember right was Mahatma Gandhi when he was convicted for sedition in Ahmedabad. The thing is that Mahatma Gandhi was also a lawyer. And two lawyers there are there is the gun path and there is the path of Savarkar where you write an apology. So let's say that Mr Bhushan has made his choice. Is it a wiser choice according to the times that we live in that that we let the court take a call on and history will judge. History always judges history. Now today would any judge of any court in India want to be compared with Chief Justice A.N. Ray. Who gave the judgment in EDM Jabalpur during the emergency. And who superseded a number of judges that was when he was made the Chief Justice of India. When he was made Chief Justice. That's right. And from what I've heard of the government. Yes. And the emergency government and from what I've heard about Chief Justice A.N. Ray. He was generally a nice man. He generally it was a very conservative judge. He thought he was doing the right thing. But history has judged him for what he did when he was Chief Justice. We are all subject to the judgment of history. And specifically if we do not want to be pitiful men dressed in a little brief authority. And if I may just briefly refer to go back to the what you referred to. What to place more than four and a half decades ago or roughly four and a half decades ago. Would you agree that history will hold Justice A.N. Ray. And put him on a lower pedestal than they would say Justice Khanna who resigned in protest. Yes. Absolutely. Absolutely. Justice Khanna's portrait is there in court number two from which he which he retired or he resigned when once justice baked superseded him. Even today when we argue in court, we are stuck sometimes. Some of us superstitiously look at that portrait gives us strength gives us courage to go on. There are dissents which speak to a future day to the wisdom of a future day saying that maybe they've got it wrong this time. But there always is tomorrow to set it right. Yeah, and we are all you know sort of waiting to see what would happen in a few days from now. But but if you sort of what are the big lessons that we need to learn from the current episode of Prashant Hushan's conviction. What are the big takeaway irrespective of whatever be the quantum or the nature of his sentencing which will which we will know a few days from now. Whether he's put behind bars whether he's you know sort of quote unquote the judges are lenient towards him whether they find him 2000 rupees we don't really know what would happen. But what are the big lessons that we need to draw from the present episode and I'm just a brief intervention. You will remember that the present rulers though the party was very, very critical of Indira Gandhi during the emergency and and the the super session of justice. So I'm just saying it's the same people who are critical for the kids back or four and a half decades back who are today in power in Delhi. Yeah, sorry it might sound a bit sexist but sometimes people say that every bride grows up to be like a mother in law. And sometimes when I when I when I when I turn my historians gaze at some of the BJP people are very young Arun Jaitley who was in prison with the rest of the opposition when in power. I don't think he actually stood up greatly for free speech or or against the dawning of a police state. So, yeah, here you also mentioned the super session. Now, when the Janta Party came in to power after the emergency. The question was whether justice is Chandrachudh senior and Justice Bhagwati should be superseded because they too had been party with Chief Justice and Ray to the judgment in the EDM Jabalpur. EDM Jabalpur judgment. I believe it was. Yes, EDM Jabalpur. So I believe it was the then speaker of the Lok Sabha justice case had a who almost became president of India, who said no, do not supersede them. And that is how the general rule against super session has come in, but not superseding somebody is not the only guarantee of judicial independence. Judicial independence does not mean only immunity of the judges from scrutiny or from comment or from peer review. Judicial independence also means a fiercely independent bar. And if you look at the subcontinent, it was the lawyers of Pakistan who took out a military dictator in general Musharraf. There are never mess around with subcontinental lawyers. Okay, that's the big takeaway is it? That's the lesson that we need to draw. That is a lesson which is available to be drawn whether they draw it or not. I don't know. Thank you so much. Thank you so much senior advocate Sanjay Hegde for speaking to Newsclick and giving us your views and we'll know what will happen in the next few days. And ladies and gentlemen, you've just heard senior advocate Sanjay Hegde analyzing and observing on the proceedings in the Supreme Court pertaining to the sentencing of advocate Prashant Pushad. Thank you for being with us and keep watching Newsclick.