New Delhi: As a prelude to challenging his conviction and sentencing in the suo motu contempt case heard by the three-judge bench of the Supreme Court presided by Justice Arun Mishra (since retired), Prashant Bhushan on Saturday filed a fresh petition in the Supreme Court seeking the right to an intra-court appeal to be heard by a larger and different bench.
In the alternative, he has sought a direction declaring that review petitions filed against orders of conviction by the Supreme Court in original criminal contempt cases would be heard in open court by a different bench.
Bhushan has cited the special rules framed by the Supreme Court to deal with cases concerning death penalty as a precedent to be followed while granting his plea (Mohd. Arif v Registrar, Supreme Court of India, 2014). He has also cited the Supreme Court-devised special remedy in the nature of a curative petition against a final judgment of the Supreme Court on certain limited grounds (Rupa Ashok Hurra v Ashok Hurra, 2002).
Bhushan has claimed that his petition aims to bring important procedural safeguards when the Supreme Court considers cases of criminal contempt in original proceedings, when the court does not act as an appellate court. In such cases, there is inherent unavoidable conflict of interest involved, if the same bench hears the review petition against its own first judgment of conviction. In those cases where the high court first convicts a contemnor, and the Supreme Court confirms such conviction on appeal, this question does not arise.
Bhushan has contended that since in such cases, since the 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. “It is extremely important to minimise such decisions since they not only cause great injustice to the alleged contemnor, but also bring disrepute to the Court itself and are likely to be harshly judged by legal historians,” Bhushan has observed in his petition.
Bhushan has argued that the right to appeal against conviction in original criminal cases is a substantive right under Article 21, and flows from principles of natural justice. The absence of such a right in original criminal contempt cases is not only inexplicable, but clearly violates Article 21, he has suggested.
Bhushan has also cited Article 14(5) of International Covenant on Civil and Political Rights (ICCPR) which India has ratified, according to which, first appeal is a right even where trial is by the highest court and review is not a substitute for an appeal.
Bhushan has sought to justify intro-court appeal in terms of the legal principle, Nemo potestesse simul actor et judex, that is, no one can be at once a suitor and a judge. As contempt proceedings are one in which the injured party (Supreme Court) acts as the prosecutor, the witness and the judge, thereby raising fear of inherent bias, the case for intra-court appeal acquires more significance, Bhushan contends in his petition. The power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary, he points out.
As contempt proceedings are quasi-criminal in nature, akin to a criminal trial, there is no reason why similar procedural safeguards cannot apply as in criminal trials, he adds.
Bhushan has also relied on Article 19(2) of the Constitution, under which the freedom of speech guaranteed under Article 19 can only be restricted by a procedure which is reasonable and stands the test of Articles 14 and 21. A procedure which denies the right of intra-court appeal in original criminal contempt cases in the Supreme Court can hardly meet the requirements of Article 19(2), he suggests.
Truth as defence
According to Bhushan, the intra-court appeal also addresses the concern that the defence of truth, if claimed by a contemnor during the proceedings and rejected by the first bench, may be accepted by a different or a larger bench when the whole matter is reexamined after passage of time. In the absence of the right to appeal, the right of having a fact determined as truth is lost, he has emphasised.
Bhushan has also alleged discrimination under Article 14, as a person charged with similar criminal contempt of high court has a right of appeal in the Supreme Court, but a person charged with criminal contempt of Supreme Court has no appeal. It is a fact that many contemners convicted by the high courts for criminal contempt have been successful in getting their conviction and sentence stayed by the Supreme Court, and finally acquitted. The absence of similar scope for relief for a person accused of contempt of Supreme Court is ex facie discriminatory, as law does not distinguish contempt of Supreme Court from that of high courts.
Bhushan has claimed that it is in the spirit of the Contempt of Courts Act, 1971 to provide for such a procedure in the Supreme Court, and therefore, the silence in the Act or the Rules to Regulate the Proceedings for Contempt of the Supreme Court regarding intra-court appeal should not be construed as a factor which goes against his prayer.
Bhushan’s petition points out that the 1971 Act was enacted pursuant to the recommendations of the Sanyal Committee on Contempt of Courts. The committee had made a specific recommendation for providing a statutory right to appeal in cases of criminal contempt. Much of the criticism against the large powers of the court to punish contemnors will disappear if a right of appeal is provided, the committee had suggested.
As any sentence of imprisonment for contempt involves a fundamental question of personal liberty, it is only proper that there should be provision for appeal as a matter of course, the committee had observed. It is inexplicable why the Supreme Court made an exception to this universally recognised principle in the case of sentences for contempt of itself.
Bhushan has also cited Justice Kurian Joseph (retired)’s recent comment justifying intra-court appeal in Bhushan’s contempt case.