Bhushan May’ve Lost in Court, But Won Greater Battle: Sanjay Hegde

The senior advocate speaks to The Quint about the key events from the dramatic Supreme Court hearing.

Senior Advocate Sanjay Hegde (L) and Prashant Bhushan (R)

(Photo: Erum Gour/The Quint)

Video Editor: Mohd. Ibrahim

“There have been times when people have lost matters in court, but they have won the greater battle,” is how senior advocate Sanjay Hegde describes the events in the Supreme Court on Thursday, 20 August in the Prashant Bhushan contempt case.

More specifically, Hegde was referring to the remarkable statement made by Bhushan to the court in which the lawyer-activist defended his tweets – which the court had found to amount to criminal contempt. “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 had said in his statement.

Hegde believes that these words will “mark the proceedings” going forward.

“The only equivalent that I am reminded of are those words of Lokmanya Tilak which are outside the Bombay High Court courtroom where he was sentenced to six years of transportation: ‘Despite the verdict of the jury, I maintain that I am innocent. There is a higher providence that guides nations and the destinies of men and it may be that the cause that I represent is better served by my suffering than my freedom.’”

Sanjay Hegde to The Quint

The apex court bench of Justices Arun Mishra, BR Gavai and Krishna Murari has now given him till 24 August to issue an unconditional apology or it will proceed with sentencing. The court heard arguments from Bhushan’s lawyers Dushyant Dave and Rajeev Dhavan on Thursday, as well as some brief submissions from Attorney-General for India KK Venugopal.

THE AFFIDAVIT CONTROVERSY

One of the major events of the hearing was when the judges appeared to admit that they had not referred to all of Prashant Bhushan’s detailed affidavit explaining the reasoning behind his tweets when arriving at their verdict, that the tweets about the judiciary amounted to criminal contempt.

Bhushan’s lawyers had been arguing at the time that this affidavit was important when deciding whether or not Bhushan’s criticism had been meant in a bona fide manner, not just in terms of his conviction, but his sentencing as well.

“Let’s put it this way, that they did not rely upon the whole affidavit” Hegde says, noting that there appeared to have been some miscommunication among the judges and Bhushan’s lawyers about which parts of the affidavit they had referred to. He then explains why the whole affidavit should have been referred to.

“The affidavit was produced, it was relevant, the judges should have dealt with it. There are no two ways about it. How they dealt with it is not my province. But if the affidavit was there, if the affidavit had not been specifically withdrawn by counsel, I think it was incumbent to meet every argument that can legitimately said to have been made in pleadings and oral arguments. Just sidelining the affidavit or saying that it doesn’t exist, that is not something which, with due respect to the judges, is the legal process or what is required of the legal process.”

Sanjay Hegde to The Quint

‘ATTORNEY-GENERAL TODAY FINALLY FULFILLED HIS DUTY TO PEOPLE OF INDIA’

Another major talking point from the hearings was when Attorney-General for India KK Venugopal offered support for Bhushan. Not only did he request the judges to not punish the lawyer-activist, he also noted that he was also aware of how former judges of the Supreme Court had spoken out about threats to democracy and corruption in the higher judiciary.

The bench did not allow him to make his arguments in any detail and has now failed to record even his presence in the record of proceedings.

Hegde notes that there have been several problems with the way the apex court has not involved the Attorney-General in this case, beginning with how the original petition filed against Bhushan was not dismissed by the court even though it did not have his permission, which is required as the A-G is the ‘guardian of contempt’, a necessary safeguard in such cases.

The judges subsequently failed to hear him during the hearings before the verdict even after issuing notice to him and asking him to be present.

“When they proceeded suo motu and the Attorney General was present, they chose not to hear the Attorney General. When they finally chose to hear the Attorney General, he made his mind known. He told them that he told them that he doesn’t think this is a case for punishment. He told them that what has been said in the tweets has been said by many others. I would, for one, commend him for sticking to his role as Attorney General for India.”

Sanjay Hegde to The Quint

Hegde notes that the Attorney-General holds a constitutional post, where their first duty is to the people of India, not the government – and through his actions on Thursday, Venugopal had performed his duty.

Watch the video for all the comments by Hegde on the issue.