The Supreme Court bench headed by Justice Arun Mishra has directed listing of the 2009 contempt case against Senior Advocate Prashant Bhushan before another bench as per the orders of the Chief Justice of India. “I am short of time. I am demitting office,” Justice Mishra concluded.
At the last hearing, the bench comprising Justices Arun Mishra, BR Gavai and Krishna Murari, had framed 3 substantial questions of law for consideration of the bench. While deciding the case and at today’s hearing, the bench was supposed to also decide upon whether the case should be referred to a larger bench. While the case is going to be referred to another bench, it is not clear whether this will be a larger bench.
“These questions must be resolved for ‘once and for all’. The Court’s free speech jurisprudence has expanded and its impact on contempt law must be considered,” submitted Dr. Rajeev Dhavan appearing for Bhushan. Dhavan also requested that the Attorney General be issued notice in the case, but this decision has also been left for the other bench to decide.
Dhavan further stated, “The question whether Articles 129 & 215 of the Constitution enabling Court to take suo moto contempt action are powers independent of other provisions of the constitution, particularly Articles 19 and 21, goes to the very heart of Bhushan’s defence.”
This case arises from a different comment made by Bhushan and pertains to his interview to Tehelka magazine in 2009 wherein he had allegedly made statements about corruption against SC judges. Bhushan had allegedly implied that at least half of the 16 previous Chief Justices were corrupt, but he could not provide any evidence to support his claims. The SC took up the case suo moto after senior advocate Harish Salve filed a complaint.
In January 2010, a bench comprising Justices Altamas Kabir, Cyriac Joseph and HL Dattu issued notices to Bhushan as well as Tehelka’s then Editor-in-Chief Tarun Tejpal. The contempt petition was held maintainable by a three-judge bench in November 2010 and after that it was heard 17 times.
On August 4, 2020, the court asked Bhushan’s lawyer if he was willing to tender an apology. But Bhushan declined and offered an explanation instead, insisting that his words were misunderstood. The court found Bhushan’s explanation to be unacceptable and decided to hear the case on its merits.
On August 17, the last hearing, the bench framed the following questions to be addressed by Dhavan:
(i) In case a public statement as to corruption by a particular Judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard ?
(ii) What procedure is to be adopted to make a complaint in such cases when the allegation is about the conduct of a sitting Judge ?
(iii) Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of the general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?
LiveLaw reported that Dhavan, on behalf of, Bhushan has submitted a revised list of ten questions of law of considerable constitutional importance, in tune with the August 17 order of the Supreme Court:
1. Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of Court?
2. If the answer to Question 1 is in the affirmative, whether the person who expresses such an opinion about the extent of corruption in a section of judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he bona de held that opinion?
3. Whether the Supreme Court in exercise of its powers under Article 129 can curtail free speech and expression only to the strict and limited extent permissible under the Contempt of Courts Act, 1971?
4. Whether the decisions in Ex Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 and Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 are mutually inconsistent and deserve to be reconciled by a bench of the appropriate strength, and whether in any event both judgments deserve to be referred to a larger bench in order to reconcile them with the issues raised in Question 3 above?
5. a) Whether the Contempt of Courts Act, 1971 ought to bear on the manner in which the vast discretion in relation to contempt proceedings under Articles 129 and 215 of the Constitution is exercised?
(b) Whether, in answer to the foregoing question, the conflicting pronouncements of this Hon’ble Court in Pallav Sheth v. Custodian (2001) 7 SCC 549 and In re Prashant Bhushan, SMC (Crim.) No. 1 of 2020 (decided 14th August 2020) deserve re-examination?
6. Whether, in light of the law laid down by this Hon’ble Court in Dadu v. State of Maharashtra (2000) 8 SCC 437 (paras 17&18) and, the absence of any provision for appeal against conviction in a suo-motu proceeding for criminal contempt initiated by this Hon’ble Court violates Article 21 of the Constitution of India?
7. Whether, after the interconnected reading of Articles 14, 19 & 21 in RC Cooper v. Union of India (1970) 1 SCC 248 (11 Judges) and in Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Judges), the law of contempt should be subject to the concepts enumerated in these decisions, both in relation of the Contempt of Courts Act, 1971 as well as Articles 129 & 215 of the Constitution of India?
8. Whether cases relating to Section 2(c)(i) of the Contempt of Courts Act 1971 decided before its enactment need to be re-examined in the light of the Contempt of Courts Act, 1971 and judgments interpreting it?
9. Whether the in-house procedure for dealing with complaints against judges laid down in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 prevents complainants, participants in the procedure and others from discussing the matter in the public domain?
10. Whether the decision in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 is compatible with constitutional limitations including those contained in Articles 19(2) and 14?
The bench that will be assigned the case for next hearing on September 10, will decide on whether to issue notice to the Attorney General, whether the case may be referred to a larger bench for consideration of substantive questions of law and how will these 10 questions be considered by the court.
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