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The case is not closed yet: Petition in Supreme Court for Intra-Court Appeal by Prashant Bhushan

Dated: September 12, 2020

Contempt of court is back in the news in India as a principle that seeks to shield judicial institutions from malicious attacks and unwarranted criticism, and as a legal framework for punishing those who undermine its authority. This follows the Indian Supreme Court's initiation of contempt proceedings against the advocate-activist Prashant Bhushan, on its own petition.

Guilty of Contempt of Court

The Supreme Court on August 14, 2020 found Advocate Prashant Bhushan guilty of contempt of court for his tweets which criticised Chief Justice of India SA Bobde and the judiciary reported earlier this year.

The order was passed by a Bench consisting of Justices Arun Mishra, BR Gavai, and Krishna Murari. The Court had registered the suo motu contempt case against Bhushan over two of his tweets criticising the judiciary.

The two tweets in question were posted in June this year. The first tweet referred to Bhushan 's commentary on a high-end motorcycle picture of India's Chief Justice SA Bobde, while Bhushan 's opinion on the role of the last four CJIs in the country's state of affairs was expressed in the second.

Advocate Mahek Maheshwari, based in Madhya Pradesh, also filed a contempt petition on July 2nd against Bhushan and Twitter India over a motorcycle tweet linked to CJI Bobde.

The tweet Maheshwari highlighted was posted on June 29, 2020. In this tweet, advocate Bhushan had stated: “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in Lockdown mode denying citizens their fundamental right to access Justice!”

The other tweet was made on June 27, in which Bhushan said, “When historians in future look back at the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

In his 142-page affidavit reply to the Court, Bhushan stated that his tweets were justified, and could not be treated as contempt of court.

He said his tweet on CJI Bobde appearing on a motorcycle picture without a helmet or mask was merely an illustration of his anguish behaviour with the intention of highlighting the situation's incongruity. With respect to the tweet about the position of the last four CJIs, Bhushan submitted that he was voicing his bona fide opinion on the state of affairs.

As well as the reply, Bhushan had also moved the Supreme Court to challenge its Secretary-General’s decision to list the contempt petition filed against him on the judicial side, without the Attorney General 's consent.

In addition, in light of recent events, this petition had also challenged the sudden listing of an 11-year-old contempt matter pending against Bhushan. This 2009 case relates to claims by Bhushan in an interview with Tehelka magazine regarding corruption in the judiciary.

Supreme Court’s Decision

On 31 August 2020, the Supreme Court sentenced Advocate Prashant Bhushan to a Rs . 1 token fine in the contempt case against him for his tweets opposing the judiciary.

While pronouncing the verdict, Justice Mishra said, “Judges are not supposed to go to the press, their comments outside the Court should not have been relied on.”

The Bench went on to say that Bhushan had been given many chances to express remorse for making his disdainful remarks. It also claimed that by going to the press, Bhushan was advertising the events surrounding the contempt case.It said, “Court's decision should not be preempted by publication of opinions in the press.”

In the end, however, the Bench saw it fit to place a Rs. 1 token fine on Bhushan.

The Bench also made it clear that if Bhushan defaults on paying the fine, he will be sent to prison for three months, and may be deprived of three years of practise.

Bhushan had sent a supplementary statement reiterating his stance of standing by his tweets and refusing to apologise. When the Court considered this supplementary comment, Senior Advocate Rajeev Dhavan had urged the Court not to turn Bhushan into a martyr by gaoling him.

Dhavan, who represented Bhushan, had also advised the Court to send out a general message and not to prosecute Bhushan. On the other hand, Attorney General KK Venugopal suggested that Bhushan should be let off with a warning.

Dhavan argued that he has the right to offer a response when a person is arrested for contempt and that an apology can not be forced by a contemnor. On the other hand, AG Venugopal had requested that the Court let Bhushan go off indicating that Bhushan could express remorse and withdraw the affidavit which he had filed in his defence.

The Court, however, pointed out to AG Venugopal that Bhushan did not show remorse, but instead opted to affirm his stance of not apologising for the contentious tweets. In a candid dialogue that followed between the Bench and the lawyers present at the trial, the Court expressed the “hurt” and the “pain” caused to the institution when such allegations are made.

Right to Intra-Court Appeal

Advocate Prashant Bhushan filed a petition in the Supreme Court on September 12,2020 seeking a declaration that a person convicted of criminal contempt by the Supreme Court, including Bhushan, has a right to appeal intra-Court.

Bhushan prayed for a clarification in a fresh Writ petition filed before the Supreme Court declaring that persons convicted by the Supreme Court have the right to an intra-Court appeal to be heard by a bigger and separate Bench.

In addition, the petition filed through Advocate Kamini Jaiswal also prays for a way to frame rules and guidelines allowing for intra-court appeal against conviction in original criminal contempt cases.

Alternatively, however, Bhushan has requested that a petition for appeal of such conviction orders could be heard in open court by another bench, this petition has been lodged, seeking protection of the fundamental rights guaranteed under Articles 14, 19 and 21 of the Indian Constitution.

The petition states that the current laws do not prohibit Bhushan's prayers in this plea and it is, in fact, “in the spirit of the Contempt of Courts Act, 1971 to lay down such a procedure”. The petition adds, “This Hon’ble Court has in the past framed special rules to deal with cases concerning death penalty and has also devised special remedy in the nature of ‘Curative Petition’ against a final judgment of the Supreme Court on certain limited grounds.”

Laying down of such guidelines would add procedural protections, says the petition, while the Supreme Court is first hearing and ruling on such matters and is not acting as an appeal tribunal.

Criminal contempt of Court often entails having an impact on the rights of the contemnor and as such it is important to devise such rules, it is averred.

“...considering the fact that there is inherent unavoidable conflict of interest involved, and the fact that liberty of the alleged contemnor is at stake, it is of utmost importance that certain basic safeguards are designed which would reduce (though not obviate) chances of arbitrary, vengeful and high handed decisions.”

Invoking Article 21, Bhushan’s petition argues that the right to appeal against a conviction is a fundamental right open to all people and that it derives from the natural justice principle. Under the terms of the International Covenant on Civil and Political Rights ( ICCPR), the right to appeal is an absolute right too.

In addition, there is a conflict of interest in contempt cases as well as a concern regarding the potential prejudice involved. The plea elaborates on this to claim that this anxiety derives from the fact that the aggrieved party, that is the Court, still functions in the capacity of a prosecutor, witness, and judge, in such cases. The statement goes on to say, “As a judge the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary. Nemo potestesse simul actor et judex i.e. no one can be at once a suitor and a judge. Thus, there is a need for an intra-court appeal.”

It is often argued that contempt proceedings are quasi-criminal in nature, and thus call for the enforcement of the same level of protection as criminal proceedings.

Highlighting the need for another Bench to hear the appeals, the petition notes that the Contempt of Courts Act provides for Truth as a defence, and it is probable that the truth that one Bench denies will be recognised by another when the whole matter is re-examined. Further describing this element, the petition submits, “while the court of first instance may not accept the “truth” as alleged by the accused in a criminal contempt case, it may be accepted as factually correct by a larger or different bench. In a situation where there is no right of appeal, the right of having a fact determined as truth is lost.”

Article 14 was also cited in this petition underlining that a person convicted of a similar crime by a High Court has a right of appeal at his hands, while that right remains absent for a person convicted in the first instance by the Supreme Court.