A three-judge Bench of the Supreme Court headed by Justice Arun Mishra on Tuesday deferred a 2009 contempt case against civil rights lawyer Prashant Bhushan.
Justice Mishra said he was “short of time”. The judge is demitting office on September 2. The Bench asked the case to be posted before another appropriate Bench on September 10. The contempt case was initiated on remarks made by Mr. Bhushan about judicial corruption in an interview to Tehelka magazine in 2009. The case was suddenly listed before Justice Mishra’s Bench recently after an eight-year hiatus.
“You should remember, people come to this court for relief. Their faith should not be shaken. We need to safeguard the institution,” Justice Mishra addressed senior advocate Rajeev Dhavan, who is Mr. Bhushan’s lawyer.
“In my view, people come to court for relief and justice,” Mr. Dhavan said.
Both Mr. Dhavan and senior advocate Kapil Sibal agreed with the view of the Bench to defer the case. They both said they had the highest regard for the institution.
The hearing began with Mr. Dhavan referring to questions of law framed by him primarily on whether a bona fide opinion about judicial corruption amounted to criminal contempt. He said the questions should be referred to a Constitution Bench.
Mr. Dhavan said the court should first hear Attorney General of India K.K. Venugopal on the questions of law.
“Our questions raise the effect of truth and bona fide opinions on a contempt action. It directly goes to the heart of the Prashant Bhushan case. It was never discussed by this court whether a bona fide opinion, negligent or not, amounts to criminal contempt,” Mr. Dhavan submitted.
Justice Mishra said the appropriate framing of questions of law to be referred to a Constitution Bench would require extensive pleadings and he had only a few days more before retirement.
“Let us leave this to an appropriate Bench,” Justice Mishra said.
When Mr. Dhavan requested the Bench to issue notice to the Attorney General, Justice Mishra said the decision would be best left to the appropriate Bench. Justice Mishra even suggested the nomination of an amicus curiae in the case.
On August 10, the court decided to hear arguments on whether the remarks in the interview against the judiciary amounted to per se contempt.
However, on August 17, the Bench went on to deflect the issue, saying the court should launch a detailed examination into the circumstances under which a person could make public allegations of corruption against the judiciary. The court also wanted to hear arguments on laying down a procedure to be adopted if such statements of corruption were made in public against sitting as well as retired judges.
“Allegation of corruption per se cannot be contempt because the same pertains to criticism of a judge for a biased dispensation of justice and would in all cases require further investigation before such allegations are brushed aside at the threshold,” Mr. Bhushan had explained in his written submissions to the court.
He had said truth was a defence under Section 13 (b) of the Contempt of Courts Act, 1971.
“When such truth/defence is invoked, the court to hold the alleged contemnor guilty of contempt will have to necessarily return a finding that (a) such defence is not in public interest; and (b) the request for invoking such defence is not bona fide,” Mr. Bhushan had argued.
The senior lawyer said he used the word ‘corruption’ in a wider sense to include any act of impropriety other than merely financial corruption.
“Corruption in public life has a wide and expansive definition. Corruption is not restricted to pecuniary gratification alone but various instruments identify its particular forms such as bribery, embezzlement, theft, fraud, extortion, abuse of discretion, favouritism, nepotism, clientelism, conduct creating or exploiting conflicting interests,” his written submissions had said.