Advocate Prashant Bhushan has asserted that any exercise of alleging corruption in the public interest must squarely lie within the domain of "freedom of speech" under Article 19 (1) (a) of the Constitution.
The remarks have been made in a written submission filed by Bhushan in the 2009 contempt proceedings instituted suo moto, over his statements alleging corruption against judges.
On Monday, the Top Court decided to hold a detailed hearing on whether to accept the explanation tendered by Mr. Bhushan in the said case. The bench headed by Justice Arun Mishra said that it needs to examine if any statements alleging corruption against judges would per se amount to contempt. The matter is slated to be heard tomorrow, i.e. August 17.
In the reply filed through Advocate Kamini Jaiswal, it is submitted that allegations of corruption per se cannot be contempt because the same pertains to criticism of a judge for a biased dispensation of justice and would in all cases require "further investigation" before such allegations are brushed aside at the threshold.
"Without the allegations (of corruption) against a judge being documented and investigated in the manner further provided under the Judges Inquiry Act, to establish the veracity, the allegation per se cannot amount to contempt in so far as it would nullify the constitutional provisions and statutory procedures for impeachment of a judge on grounds of misbehavior including corruption," the reply states.
Highlighting the importance of investigating such allegations against the Judges, Bhushan recalls the cases of Justice Dinakaran, then Chief Justice of the Karnataka High Court and Justice Soumitra Sen, then Judge of the Calcutta High Court, both of whom were accused of corruption at the relevant time.
It is stated that their cases are ""illustrations of how allegations of corruption made against them, were investigated under the constitutional machinery and their removal recommended, following which however, they both resigned from office.
It is further pointed out that 'truth' is a valid defence against contempt and therefore, to hold the alleged contemnor guilty of contempt, the Court will have to necessarily return a finding that:
(a) such defence is not in public interest; and
(b) the request for invoking such defence is not bona-fide.
Reliance is placed on observations made by jurist HM Seervai in Constitutional Law of India, that the defense of truth has to be made available in order for operation of Articles 124(4) and 125(5) of the Constitution of India (relating to removal of judges), otherwise the said provisions would be rendered "unworkable".
Bhushan has gone on to recall a plethora of incidents where the factum of corruption in the Judiciary was commented upon by former judges of the Supreme Court itself, was taken note of in various judgments of the Supreme Court as well as of the High Courts in the country, etc.
He has also emphasized on incidents where the Courts dismissed contempt cases, against persons who imputed allegations of judicial corruption, with remarks like "courts were not supposed to be too sensitive to stretch the law of contempt too far."
He has also admitted that in the case of C. Ravichandran Iyer v. Justice AM Bhattacharjee & Ors., 1995 SCC (5) 457, the Supreme Court had indicated that members of the bar should use only the in-house procedure for making complaints against judges .
However, he has submitted that this internal procedure is absolutely "inadequate" and "ineffective"; and the impeachment procedure is too complex and political.
"Therefore, at present there is no effective procedure to deal with corruption in the judiciary other than the public and particularly through lawyers who know from experience the extent of corruption in the judiciary or vis a vis a particular judge," the reply states.
Significantly, Bhsuhan has already been held guilty of contempt in connection to his tweets about the Chief Justice of India and the Supreme Court. The bench will hear him on sentence on August 20.
Prashant Bhushan's Tweets Tend to Shake Public Confidence In Institution Of Judiciary: SC
Read Written Submission