The Supreme Court on Monday indicated that it was in favour of closing a 2009 contempt case against lawyer Prashant Bhushan, but added that it would first examine whether alleging corruption against judges in the public is permissible and to put in place a procedure by which such statements can be dealt with even if they involved a retired judge.
Bhushan gave an interview to Tehelka magazine published on September 5, 2009 alleging that half the past 16 chief justices of India (CJIs) had been corrupt. The matter will now be heard next Monday.
The Court had on August 10 agreed to proceed with the contempt case against Bhushan. Along with Bhushan, former Tehelka editor Tarun Tejpal is also charged with contempt. The apex court convicted Bhushan of contempt last week for two tweets directed against the present CJI SA Bobde and the judiciary.
On Monday, a three-judge bench headed by Justice Arun Mishra expanded the scope of its earlier order and said, “We like to be addressed on the issue that in what circumstances can such a statement on corruption be made and the procedure to be adopted in this regard, with regard to sitting and retired judges.”
Senior advocate Kapil Sibal, who had offered apology on behalf of Tejpal on the earlier occasion, told the bench: “This matter can be given a quietus.” The bench replied: “We want to give a quietus to the case but it involves a question as to the circumstances in which you can allege corruption by speaking to the press.”
Bhushan, who is represented by senior advocate Rajeev Dhavan, demanded the matter to be sent to a Constitution bench of five judges. He formulated five issues, the important among them being, “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.” And If yes, “Whether the person who expresses such opinion…is obliged to prove that his opinion is correct or whether it is enough to show that he bona fide held that opinion.”
The bench, also comprising Justices BR Gavai and Krishna Murari, posted the matter for hearing next Monday and said: “Even on referring the case to Constitution bench we will hear all parties….if we shirk our responsibility, it may not be proper for the future of the (judicial) system.”
Since these questions are bound to arise in the other contempt case decided against Bhushan, Dhavan said that the judgment passed by the apex court convicting Bhushan of contempt on August 14 has to be challenged as it suffered from “grave imbalances”. He intends to file a review plea against the judgment, Dhavan said. He referred to decisions by the Supreme Court wherein disparaging comments against retired judges was not held to be contempt.
In a related development, the same bench on Monday heard a public interest litigation filed by a petitioner, Subhash Vijayran, who demanded that no aspersions be cast against judges in public. The petitioner said: “Judges are not politicians. Any imputation or motive attributed to judges cannot be defended by them in the media.”
The bench led by Justice Arun Mishra asked the petitioner if he could cite any law or judgment in support of his case. The Court gave two weeks to the petitioner to prepare the case.