Top court refers 2009 contempt case against Prashant Bhushan to other bench   

By Express News Service

NEW DELHI: Advocate Prashant Bhushan on Tuesday raised questions in the 2009 contempt case against him before the Supreme Court asking whether the expression of a bonafide opinion about the extent of corruption in any section of the judiciary would amount to contempt of court. 

“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 the judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he bonafide held that opinion?” was the follow-up question posed by Bhushan. 

The contempt charges pertain to Bhushan’s interview to Tehelka magazine in 2009 in which he was quoted as saying that half of the 16 chief justices of India till then were corrupt.

The court, however, directed listing of the case before another bench on September 10. This is because Justice Arun Mishra is due to retire on September 2. 

Bhushan also raised questions on a 1995 judgment, which had laid down the in-house procedure for dealing with complaints against judges.

He has asked whether this judgment prevents complainants, participants in the procedure and others from discussing the matter in the public domain?

Bhushan’s application also asked whether the court can exercise its powers under Article 129 and curtail free speech and expression only to the strict and limited extent permissible under the Contempt of Courts Act, 1971. 

A bench headed by Justice Arun Mishra was told by senior advocate Rajeev Dhavan, appearing for the activist-lawyer, that 10 questions of constitutional importance have been raised by him and they needed to be dealt by a Constitution bench.

The bench, which also comprised Justices B R Gavai and Krishna Murari, did not undertake the hearing due to paucity of time as Justice Mishra is demitting office on September 2.

“There is paucity of time otherwise we would have heard the senior counsel (Dhavan) with respect to the questions which have been proposed.  However, since the matter is pending for the last 10 years, as prayed for, we fix the date for hearing in the month of September, 2020. Let the matter be listed on September 10, before an appropriate Bench as may deem fit by Hon’ble the Chief Justice of India,” the bench noted in the order.

“These are broader issues which need to be deliberated at length. We can have some amicus and it can be adjudicated by an appropriate bench,” said the bench, which also comprised Justices B R Gavai and Krishna Murari.

Justice Mishra, who is retiring on September 2, said the matter will need time and observed “let us leave this to an appropriate bench” .

The court did not agree to the submissions of Dhavan that it should issue notice to the Attorney General K K Venugopal seeking his assistance and opinion to deal with the issues raised and said that ‘it is best left to the appropriate Bench” which will be set up by the Chief Justice of India.

Dhavan said the questions raised by Bhushan included the issue whether bona fide opinions of corruption also constitute contempt of court and “whether it is enough to show bona fide of opinion or it is necessary for the person to prove the allegation of corruption.

They also included whether a complainant is barred from discussing in public domain the contents of his complaint if an in-house inquiry is started, among others, he said.

On August 17, the top court had framed certain questions and asked senior advocates Dhavan, appearing for Bhushan, Shanti Bhushan and Kapil Sibal, to address it on three issues– whether such statements about corruption against judges or judiciary can be made, in what circumstances they can be made and what is the procedure to be adopted with respect to sitting and retired judges.

Then Bhushan, through her lawyer Kamini Jaiswal, filed 10 questions on his own and sought adjudication by a Constitution bench.

“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,” Bhushan’s plea said.

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