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"People come to the court for relief. If that faith is shaken, what should be the procedure?", the Court asked.
The Supreme Court today decided to place the larger questions emanating from the 2009 contempt case filed against Advocate Prashant Bhushan before an appropriate bench.
The Bench of Justices Arun Mishra, BR Gavai and Krishna Murari heard the matter today, after posing a number of questions surrounding the larger issue of contempt during the last hearing. With Justice Mishra set to demit office in September, the Court observed that there is a paucity of time owing to which this Bench will be unable to hear the questions raised.
At the outset of today's hearing, Senior Advocate Rajeev Dhavan, appearing for Bhushan, submitted that notice in the matter should be issued to the office of the Attorney General to obtain an independent opinion. He further argued that the questions framed by the Court at the last hearing need to be heard by a Constitution Bench.
Dhavan further submitted that Bhushan, in an application before the Court, has posed 10 larger questions pertaining to the issue.
These include the question of whether bona fide opinions of corruption also constitute contempt of court, whether it is enough to show bona fides of opinion or it is necessary for the person to prove the allegation of corruption, whether a complainant is barred from discussing in public domain the contents of his complaint if an in-house inquiry is started, among others.
"These are the questions we believe arise from this case and need to be resolved once and for all."
Justice Mishra then responded,
"Some of the questions from your list, how can they be decided without any pleadings?"
Dhavan went on to submit that the central question pertained to the interplay between Articles 19(1)(a) and 21 of the Constitution and Articles 129 and 215, which give the Supreme Court and the High Courts respectively the power to punish for contempt.
"Is Section 13 (of the Contempt of Courts Act) to be read with Article 19 and 21 even when Your Lordships exercise your suo motu power?"
After hinting that it may place these questions before an appropriate Bench, the Court said that the matter should go beyond the Attorney General, and considered appointing an amicus.
The Court then asked aloud,
Senior Advocate Kapil Sibal then said,
"There is also a larger principle that however high you are, the law is above you... It should apply to everyone equally."
The Court then directed for the matter to be placed before an appropriate bench. The case will now be heard on September 10, a week after Justice Mishra retires.
On August 17, after hearing the parties at some length, the Bench expressed its willingness to put quietus to this case. It also observed that larger questions emerging from the case needed to be addressed and decided.
As such, the Court had asked the counsel involved in the case to address the Court on the following questions:
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 ?
What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting Judge ?
Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?
The instant contempt case dates back to 2009, when Bhushan made statements alleging corruption in the judiciary in an interview with Tehelka magazine.
The case was filed against Bhushan after he made allegations against former Chief Justices of India SH Kapadia and KG Balakrishnan.
During the interview, Bhushan also allegedly said that half of the preceding 16 Chief Justices of India were corrupt. As per the complaint, Bhushan also said that he had no proof of the allegations.
The Supreme Court had subsequently taken suo motu notice of the issue after a complaint to this effect was filed by Senior Advocate Harish Salve, Amicus in the case. The contempt petition was held to be maintainable by a three-judge Bench on November 10, 2010.
After the Court decided to hear the case on merits earlier this month, Bhushan filed his written submissions. He has argued that firstly, allegations of corruption made in public interest lie within the purview of free speech under Article 19(1)(a) and such allegations per se do not constitute contempt of court. These allegations ought to be further investigated
Secondly, the fact of corruption is not unheard of and been taken note of by Parliamentary Committees as well as observed by judges in their judgments.
Thirdly, an allegation per se cannot be contempt, and finally, truth is a defence to such proceedings.
[Read the questions posed by Prashant Bhushan in his application]