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Wednesday, September 23, 2020

Why Supreme Court should act, suo motu, to stop miscarriage of justice in Prashant Bhushan case

One can only hope and trust that the Supreme Court as an institution, and the Court comprising of all the judges, would act suo motu to stop gross miscarriage of justice and ensure that a citizen is not deprived of his liberty by its wrongful decisions and orders.

Written by Dushyant Dave | Updated: August 24, 2020 9:13:12 am
prashant bhushan convicted, Supreme Court Prashant Bhushan case, Prashant Bhushan case, Prashant Bhushan contempt case, Supreme Court Prashant Bhushan punishmentConviction of Bhushan is founded on gross illegalities and serious jurisdictional errors.

Contempt law is strictly procedural and its procedures must be complied with. However, they appear to have been followed in breach in Prashant Bhushan. Where contempt is committed in the face of the Supreme Court (SC) or a high court (in its presence or hearing), the Court initiates proceedings forthwith. In P N Duda v. P Shiv Shanker, the SC held that “…cognisance for criminal contempt could be taken by the court by three methods namely, on its own motion, or on the motion of the Attorney-General or the Solicitor-General or on motion by any other person with the consent of the Attorney-General or the Solicitor-General.”

The contempt proceedings against Bhushan for his tweets reflect an extraordinary assumption of jurisdiction by the SC, where none existed. On July 9, 2020, a petition was filed by Mahek Maheshwari, advocate, for contempt based on the tweet against the CJI, with an application for exemption from producing consent of the Attorney General (AG) or the Solicitor General (SG), sitting on a motorbike. The matter was listed on July 22 before the Bench presided over by Justices Arun Mishra, B R Gavai and Krishna Murari, which passed an order, inter-alia, stating, “this petition was placed before us on the administrative side whether it should be listed for hearing or not as permission of the Attorney General for India has not been obtained by the petitioner to file this petition. After examining the matter on the administrative side, we have directed the matter to be listed before the Court to pass appropriate orders. We have gone through the petition… We take suo motu cognisance of the aforesaid tweet also apart from the tweet quoted above and suo motu register the proceedings… We issue notice to the Attorney General for India and to Mr. Prashant Bhushan, Advocate also.”

The order thus acknowledges that: Maheshwari’s petition was the basis of the proceedings; the petition was defective absent the consent of the AG; yet, it was placed on administrative side and decision was taken to place it before the Court for orders; the decision on administrative side was taken by the same three learned judges; yet, suo motu cognisance was taken; and, notice was undoubtedly issued to the AG. The whole exercise to assume jurisdiction was unauthorised, illegal and without jurisdiction.

It is surprising that a tweet made on June 29 goes unnoticed till July 22 to be suddenly taken up as suo motu contempt. There is more than what meets the eye.

The SC has committed a grave error on its administrative side in doing what it did. On the one hand, it allows a defective petition of Maheshwari to see the light of the day while on the other, it dismisses summarily his application for copy of administrative order to take suo motu cognisance citing archaic O13R7 of its rules as also the application for impleadment filed by eminent citizens stating, “There appears no reasonable cause to receive the instant application for registration”. This has never been done and cannot be done as per the law.

The illegality does not stop here because despite having issued notice to the AG, the SC singularly failed to hear him and take his assistance throughout the hearing on August 5, before deciding by its judgment dated August 14, 2020, that Bhushan stands convicted of contempt of Court. The notice issued to the AG was not a formality. Rule 10 of the Rules to Regulate Proceedings of Contempt of Supreme court, 1975 expressly provide: “The Court may direct the Attorney-General or Solicitor-General to appear and assist the court.”

During the hearing on August 5, I had requested the Court to hear the AG first since under the Advocates Act, 1961, he has a right to prior audience, to which the Court said that I should argue first. After hearing at length, during which the AG was throughout participating, the Court ordered that the judgment is being reserved. I pointed out that the AG has been issued notice and he must be heard. This was ignored. Yet again the SC amended its order dated August 20 the next day to reflect the appearance of the AG. The judgment on conviction deserves to be set aside on the ground of not just the violation of rules but also on account of the gross impropriety in the conduct of proceedings and in failing to get the required assistance of the AG.

The illegality goes further. The second tweet on which Bhushan has been convicted was not and could not have been the subject matter of any administrative decision to initiate suo motu contempt proceedings. In its July 22 order, the Court recorded: “Apart from that, another tweet has been published today in The Times of India, which was made by Shri Prashant Bhushan on June 27, 2020.”

Now, besides the fact that an old tweet mysteriously surfaced in The Times of India that morning, (since the tweet was made on June 29, 2020), there was no question of taking that into consideration because no prior decision on administrative side was taken to initiate suo motu contempt on it. It was not a case of contempt in the face of the Court. This tweet, therefore, could never have been the basis of initiation of contempt against Bhushan much less the basis of the judgment of the conviction. The SC has acted beyond its powers and contrary to the rules and the established practice.

Conviction of Bhushan is founded on gross illegalities and serious jurisdictional errors. One can only hope and trust that the Supreme Court as an institution, and the Court comprising of all the judges, would act suo motu to stop gross miscarriage of justice and ensure that a citizen is not deprived of his liberty by its wrongful decisions and orders.

The writer is President, Supreme Court Bar Association. Views are personal

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