Prashant Bhushan Moves SC Seeking 'Right To Intra- Court Appeal' Against 'Original Criminal Contempt Orders' Passed By It [Read Petition]

The plea has been filed through his counsel Kamini Jaiswal, contending that right of appeal is a Fundamental right, guaranteed under the Indian Constitution and is also guaranteed under International law.

It is asserted that permission to challenge the contempt order would act as a vital safeguard against 'wrongful conviction' and would truly enable the provision of truth as a defense.

Mr. Bhushan has submitted that considering the fact that there is inherent unavoidable conflict of interest in contempt cases, and the fact that 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."

The grounds pleaded by Mr. Bhushan are reiterated thus:

Violation of Article 21

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 thus violates Article 21. This has been affirmed in judgments of this Hon'ble Court.

Right of Appeal

Right of Appeal is an absolute right according to Article 14(5) of International Covenant on Civil and Political Rights (ICCPR) which India has ratified and is therefore binding upon the Indian State. Under ICCPR, first appeal is a right even where trial is by the Highest Court and Review is not a substitute for an appeal.

Inherent Bias

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. As a judge the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary. Nemo potestesse simul actor et judex i.e. No one can be at once a suitor and a judge. Thus, there is a need for an intra-court appeal.

Contempt proceedings akin to a criminal trial

Contempt Proceedings are quasi-criminal in nature, akin to a criminal trial and thus, similar procedural safeguards must apply as in criminal trials.

Violation of Article 19(1)(a)

The freedom of speech guaranteed under Article 19 can only be restricted/regulated under Article 19(2) by a procedure which is reasonable and stands the test of Articles 14 and 21.

Criminal contempt cases are 'original cases'

Original Criminal Contempt cases are a unique and distinct category of cases. This Hon'ble Court has in the past framed special rules to deal with cases concerning death penalty and has also devised special remedy in the nature of 'Curative Petition' against a final judgment of the Supreme Court on certain limited grounds.

Truly enable defense of truth

Section 13(b) of the Contempt of Courts Act, 1971, provides for truth as a defense. It is possible that a "truth" not accepted by one bench may be accepted by a different or a larger bench or a different court, when the whole matter is re-examined after passage of time. Thus, while the court of first instance may not accept the "truth" as alleged by the accused in a criminal contempt case, it may be accepted as factually correct by a larger or different bench. In a situation where there is no right of appeal, the right of having a fact determined as truth is lost.

Equality

Violation of Article 14 since it is discriminatory that a person charged with similar criminal contempt of High Court has a right of appeal but a person charged with criminal contempt of Supreme Court has no appeal. I. That neither the Contempt of Courts Act, 1971 nor the Rules to Regulate the Proceedings for Contempt of the Supreme Court prohibit the prayers as sought by the petitioner. It is in fact, in the spirit of the Act to provide for such a procedure.

In the alternative, Mr. Bhushan has sought an appropriate direction declaring that review petitions filed against orders of conviction by Supreme Court in original criminal contempt cases would be heard in open court by a different bench.

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