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'Comments Were Not Out Of Malice; But Out Of Love & Affection For Court', Says Bhushan As SC Reserves Orders On Contempt Case

5 Aug 2020 10:18 AM GMT
Comments Were Not Out Of Malice; But Out Of Love & Affection For Court, Says Bhushan As SC Reserves Orders On Contempt Case
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The Supreme Court on Wednesday reserved orders on the contempt case taken against Advocate Prashant Bhushan over his tweets about the Chief Justice of India and the Supreme Court.

Bhushan defended the tweets by saying that they amounted to fair criticism of the Court, and did not scandalize the institution.

Dushyant Dave, Senior Advocate, appearing for Bhushan, submitted before a bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari :

"His comments are not out of malice. If he feels there were certain aspects where the court could have done something differently, it could be taken as a suggestion.

His criticism is not out of malice. It's out of love and affection for the court. It's not personal. We all want the court to be stronger. This is what the constitution says regarding the separation of power..citizen may question".

Dave urged the Court to be not 'sensitive' and said that the matter seriously affected the right to free speech.

"Tweets are not against the institution. They are not obstructing the administration of justice. They are against the judges in their personal capacity regarding their conduct. It's against their individual conduct, but they are not malicious", Dave stressed.

He referred to instances and precedents from the United Kingdom, where harsh and outspoken criticism of the judges were condoned by the judiciary, treating them as part of free speech.

"Is it contemptuous to say that some judgments of certain past CJIs do not meet with the approval of a person? I may say that judgment was wrong. This is 𝙣𝙤𝙩 obstruction of justice", Dave submitted.

Dave also highlighted that Bhushan had made several contributions to the administration of justice, by taking up several public causes.

"100s of cases have been brought to the court's notice by Mr Bhushan. Court has appreciated his work on so many occasions. If he makes a mistake, will you initiate contempt proceedings against him? His remarks are only for the betterment of court!", he urged.

"People like Bhushan take up issues that many times the executive is not willing to do. If he was pro-establishment, he would have got a Padma award", he added.

Bhushan has filed a detailed reply affidavit to the contempt notice, stating that expression of bona fide opinion about the Court cannot amount to contempt.

'Raising Concerns About The Manner In Which 4 CJIs Have Used Or Failed to Use Their Powers Doesn't Amount To Contempt' : Bhushan's Reply In SC

At the beginning of the hearing, Dave had sought for the recall of the contempt notices on the ground that the Secretary-General erred in accepting the contempt complaint without the sanction of the Attorney General or the Solicitor General.

Bhushan has filed a separate writ petition against the Secretary-General of the Supreme Court, seeking recall of the contempt notice issued against him on July 22 and also the order passed on July 24 listing the old contempt case taken against him in 2009 for final hearing.

Dave stated that the complaint filed by one Advocate Mahek Maheshwari, which sought contempt action against Bhushan, was defective as it was not accompanied with the sanction of the Attorney General as mandated by Section 15 of the Contempt of Courts Act 1971 and Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court 1975.

Therefore, the Secretary-General erred in accepting the defective complaint, and in putting up the same before the judicial side.

He contended that by taking suo moto cognizance on Maheshwari's complaint, the SC dispensed with the statutory requirement of taking the consent of the Attorney General or the Solicitor General, and thereby did "indirectly what the Court could not have directly".

Further, it was contended that the Secretary-General committed illegality by placing the complaint directly before the bench headed by Justice Arun Mishra, as the 'Master of the Roster' is the Chief Justice of India.

Dave added that the initiation of contempt proceedings in disregard of the established procedure amounts to violation of the right to personal liberty under Article 21 of the Constitution.

"Before proceedings, AG must give consent. In this case, you have asked the AG to assist court after taking Suo Motu Cognisance", Dave submitted.

In response, Justice Arun Mishra said that the Court has taken the contempt case suo moto and not on the basis of the complaint. The judge added that the issue was already settled by the precedent P N Duda vs P Shiv Shanker, holding that consent of the AG was not required for the Court to set off contempt action suo moto, even if a complaint seeking to initiate contempt action is on record.

Replying to this, Dave said, "Suo motu means that your lordships should take it up on their own. Not that an Advocate (Advocate Mehek Maheshwari) moves a plea and you take it up".

"What's the point of asking AG to be here when your lordships have recorded prima facie findings?", he asked.

The bench also heard Senior Advocate Sajan Poovayya for Twitter India.

He said that Twitter was a mere "intermediary" and had no role in the creation of the tweets. He informed the bench that the problematic tweets have been withheld by Twitter, after the initiation of contempt proceedings.

After that, the Court reserved orders on the matter.

The Court did not choose to hear the Attorney General, though his assistance was sought by the bench at the time of issuing notice.

It was on July 22 that the bench headed by Justice Arun Mishra issued contempt notice to Bhushan in a suo moto case taken with respect to two of his tweets on judiciary and the Chief Justice of India.

The bench, also including Justices B R Gavai and Krishna Murari, prima facie, observed that his tweets "have brought disrepute to the administration of justice and are capable of undermining the dignity and authority of the Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of general public".  

In a related development, Bhushan, along with N, Ram (former Managing Director of 'The Hindu) and Arun Shourie (former Union Minister) filed a writ petition in the SC challenging the offence of 'scandalizing the court' under Section 2(c)(i) of the Contempt of Courts Act.

Complete updates from the hearing may be read here.

(With inputs from Sanya Talwar, Nilashish Chaudhary)

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