SC Asks Prashant Bhushan For Explanation or Apology in 2009 Contempt Case, Mutes Hearing

The bench reportedly observed that the 'thin line' between contempt and freedom of speech could have been 'crossed' by Bhushan.

New Delhi: The Supreme Court on Tuesday asked for an explanation or apology from lawyer Prashant Bhushan in the 11-year-old contempt case against him. Bhushan reportedly refused to apologise but has offered a statement as explanation, according to LiveLaw.

The report on LiveLaw has it that the bench comprising Justices Arun Mishra, B.R. Gavai and Krishna Murari noted that Bhushan, as the first respondent in the case, had not apologised or explained his remark in 2009 that “at least half of the former Chief Justices of India were corrupt.”

Now defunct Tehelka magazine editor Tarun Tejpal is second respondent. The bench received his conditional apology in the course of Tuesday’s hearing, through his lawyer Kapil Sibal.

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Hearing in the contempt case, reported LiveLaw, was conducted in-camera after the first ten minutes. Seeing that the proceedings were taking place through video conferencing, the hearing was muted to ensure that it could be conducted in-camera.

“When the hearing commenced, Justice Arun Mishra told senior advocate Rajeev Dhavan (appearing for Bhushan) that there existed a ‘line’ between freedom of speech guaranteed by the Constitution and Contempt, which Bhushan ‘may have’ crossed,” reported LiveLaw.

In 2011, on the same case, Bhushan had asked for a reference to the constitution bench on whether expressions of bona fide opinion on the extent of corruption in judiciary would constitute contempt.

Dhavan told the bench that Bhushan had offered an explanation through his counsel, the late Ram Jethmalani, when the case had been heard earlier.

The microphones were reportedly muted after this exchange.

Also Read: ‘Key Contempt Clause Unconstitutional’, N. Ram, Shourie, Bhushan Want SC to Strike it Down

Two cases of contempt are currently being heard against Bhushan. The registration of a suo motu contempt case against stems from a petition filed by Mahek Maheshwari, an advocate based at Guna in Madhya Pradesh, seeking contempt action against both him and Twitter India, over tweets critical of the CJI S.A. Bobde’s conduct.

On August 3, the contempt notice to Bhushan over his June tweets had elicited a detailed reply from him.

The second is on the basis of a complaint made by advocate Harish Salve against an interview Bhushan had given to Tehelka magazine, with an allegation against CJIs.

LiveLaw traces the history of this case, as such:

“On November 6, 2009, the complaint was placed before a bench comprising the then Chief Justice K.G. Balakrishnan and Justice S.H. Kapadia, which directed that the matter be listed before a 3-judge bench in which Justice Kapadia was not a member.”

Both the cases are being heard by the same bench. Bhushan had earlier pleaded that Justice Arun Mishra recuse himself from hearing the cases.

As V. Venkatesan had noted in his analysis for The Wire earlier, while arguing the 2009 contempt case for Bhushan, Jethmalani had pointed out a glaring technical error in the procedure followed for the case.

“…[S]ince Prashant Bhushan’s interview to Tehelka was brought to the court’s knowledge by the amicus curiae in the case, senior advocate Harish Salve, under Rule 3(c) on a petition made by him, the same ought to have been entertained only with the consent in writing of the attorney general or the solicitor general. As neither had given their consent, Jethmalani argued that the contempt proceedings were without jurisdiction of the court.”

Senior advocate Shanti Bhushan who had also appeared on behalf of son Prashant in that case, had submitted that Salve’s application for initiating contempt proceedings could have been placed only before the Chief Justice of India in chambers on the administrative side and not on the judicial side, Venkatesan wrote.

In 2011, Shanti and Prashant Bhushan both submitted to the bench in a sealed cover the names of eight CJIs, who according to them, were corrupt.

The last hearing in this case took place on May 2, 2012, when it was adjourned to July 25, 2012 with a request to the CJI to reconstitute the bench for the next hearing. Justices Altamas Kabir, H.L. Dattu and J. Chelameswar were on the bench, when it was heard last.