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Wednesday, September 30, 2020

Explained: In Prashant Bhushan case, the larger questions over contempt

The Supreme Court has deferred the hearing of a 2009 contempt case against lawyer Prashant Bhushan because 'larger' questions are involved. What are these questions that need to be examined by a new Bench?

Written by Apurva Vishwanath | New Delhi | Updated: September 1, 2020 9:52:53 am
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On Tuesday, the Supreme Court deferred the hearing in a 2009 contempt-of-court case against advocate Prashant Bhushan, and reserved its verdict on the quantum of sentencing in the contempt case initiated this year. The three-judge Bench led by Justice Arun Mishra directed that the case records of 2009 be placed before the Chief Justice of India, who can list it before an appropriate Bench. The Bench deferred the hearing as the case involved “larger” questions, and since Justice Mishra retires on September 2 and would not be able to conclude the hearing.

Prashant Bhushan: What are the cases against him about?

The 2009 case against Bhushan was filed by senior advocate Harish Salve in connection with an interview published in Tehelka magazine, in which he made allegations of corruption in the judiciary. Apart from Bhushan, then Tehelka editor Tarun Tejpal was also charged with contempt of court.

In 2010, a three-judge Bench headed by Justice Altamas Kabir had issued notices to Bhushan and Tejpal, but the case only came up for hearing when the SC recently initiated a fresh contempt case against Bhushan.

The fresh case involves two tweets by Bhushan about the Supreme Court’s functioning and the Chief Justice of India. On August 14, the Supreme Court found the two tweets amounting to “serious contempt of court”. In this case, Bhushan has refused to apologise and has stood his ground that the tweets reflected his “bonafide beliefs”, even as the Supreme Court gave him time to rethink and tender an unconditional apology or withdraw his statement. The court has now reserved its verdict on the quantum of punishment, if any, to be imposed on Bhushan.

Also read | Prashant Bhushan writes: Open criticism of any institution is necessary to safeguard the constitutional order

What are the “larger” questions in the 2009 case?

Bhushan has argued that the 2009 case would involve questions that required interpretation of the Constitution and hence it must be referred to a larger Bench.

On August 24, through his lawyer Kamini Jaiswal, he submitted a list of 10 questions that needed to be addressed by a Constitution Bench. The most crucial of these questions is whether expressing “bonafide opinion about the extent of corruption in any section of the judiciary” would amount to contempt of court.

Bhushan also pointed out several conflicting rulings on the subjects of contempt of court, and bar against speaking in the public domain about complaints against a judge, and sought reference to a larger Bench to settle the law on these issues. In a 1995 ruling, Ravichandran Iyer v Justice A M Bhattacharjee, the Supreme Court had said that lawyers must inform the Chief Justice of that court about allegations against any judge, with prima facie evidence, so that the CJ can look into the matter.

Bhushan asked if this procedure is compatible with the “reasonable restrictions” imposed on free speech by the Constitution.

Also read | Contempt case: What Supreme Court, Prashant Bhushan and AG Venugopal said

Although the 1971 Contempt of Courts Act recognises truth as a defence in cases, one of the questions that Bhushan has raised is whether the contemnor has to prove the allegation or remark on corruption.

How is a reference to a larger Bench made?

As per Article 145(3) of the Constitution, “the minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution” shall be five. A bench of at least five judges is set up to hear significant Constitution cases.

When different rulings of same Bench strength are not consistent with one another, a ruling by a larger Bench of an odd number of judges is preferred to harmonise the law. Once the questions to be settled are identified, these are placed before the CJI who will then assign it to a larger Bench. The CJI, as the master of the roster, decides which Bench would hear the case.

In Bhushan’s case, the case will be listed before another Bench on September 10.

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What about the other case?

The Supreme Court has already held Bhushan guilty of “serious contempt of court” for his two tweets. Generally, a separate hearing for sentencing follows conviction, with the court hearing arguments again to decide the quantum of punishment.

On August 20, during the sentencing hearing, the Supreme Court gave Bhushan more time to “think over” and tender an apology to the court. This extension was despite Bhushan’s stand that he had not tweeted in a “fit of absent-mindedness” but had expressed what he termed a “bonafide belief” he held on the state of the judiciary.

On August 24, he filed another affidavit, reiterating his stand and informing the court that tendering an insincere apology would in fact constitute contempt of court. The court once again heard arguments by Bhushan’s lawyer and Attorney General for India K K Venugopal on why the court must not award any punishment to Bhushan and concluded the hearing.

Venugopal also told the court that while Bhushan may be warned, he should not be awarded a punishment.

Why is the court repeatedly asking for an apology?

The Contempt of Courts Act 1971 lays down the procedure to be followed in contempt cases. It also says that the offence is punishable with simple imprisonment for a term which may extend to six months, or with fine which may extend to Rs 2,000, or both.

However, Section 12 of the Act also adds an exception to the punishment prescribed. “Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court,” the law says.

Editorial | The Supreme Court has broad shoulders. By convicting Prashant Bhushan for contempt, it diminishes itself

Hence, a statement of apology to the court by Bhushan would allow the court to let him off without punishment even though the Supreme Court has found him guilty of contempt of court.

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