The Leaflet

| @theleaflet_in | February 25,2019

AS per latest development,advocate Prashant Bhushan who is facing contempt of court proceedings for his tweet on a sub-judice matter has now filed an application in the Supreme Court seeking recall of the contempt notice on a ground that the bench which issued the notice to him had jurisdiction of hearing criminal contempt as per the roster issued under the signature of the Chief Justice of India (CJI) who happens to be the Master of Roster.

In his application, Bhushan has stated:

The Applicant is constrained to move the present application since the filing of the Contempt Petition under a wrong cause title in Writ Petition No. 54 of 2019, mentioning the same not before the Hon’ble Chief Justice of India but before the bench not even having criminal contempt jurisdiction, the order on mentioning dated 4.02.2019 listing the petition on 6.02.2019 and tagging it along with WP(C) no. 54/2019 and subsequent order thereon issuing Notice on 06.02.2019 collectively and individually violate the right to life guaranteed to the Applicant under Article 21 of the Constitution of India. The Contempt Petition and the manner in which the same have been pursued seek to condemn the Applicant so as to take away his personal liberty without following due procedure of law. The application raises very serious constitutional questions including as to the propriety of filing the present petition as an interlocutory petition in a pending writ petition and having filed the petition, mentioning it before the Bench presided by Hon’ble Mr. Justice Arun Mishra and Hon’ble Mr. Justice Navin Sinha instead of mentioning the same before the Hon’ble Chief Justice of India for listing, in complete contravention of the law declared by this Hon’ble Court in Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396 and Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196.

Pertinently in the Shanti Bhushan’s Case the Learned Attorney General himself appeared and contended inter-alia as under:

12. Mr Venugopal, learned Attorney General, in reply to the aforesaid arguments of the petitioner, submitted that the petitioner has virtually accepted the legal position to the effect that the Chief Justice is the “Master of Roster” and in that capacity he also has the authority to allocate the cases to different Benches/Judges of the Supreme Court. Therefore, the grievance, essentially, of the petitioner was about the manner in which such a power is being exercised. However, at the same time, the petitioner had also made it clear that he was not questioning particular decisions rendered by particular Benches which were assigned some of the important matters, pointed out the learned Attorney General.

Even otherwise the law declared by the Constitution Bench in Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196 is binding and the Criminal Contempt Petition ought not to have been filed as an I.A. in a pending Writ Petition since a Criminal Contempt Petition is always filed as a separate and independent petition based on an alleged independent cause of action. Equally, mentioning it before a particular bench was contrary to the aforesaid judgments and virtually amounts to overreaching the judgments of this Hon’ble Court and may even amount to contempt of this Hon’ble Court. Law declared by this Hon’ble Court is final and binding and by virtue of Article 141 read with Article 144 everybody, howsoever high he may be, is bound by it. Despite the law being well known, an attempt has been made to circumvent the established procedure and the law.

Further, the whole attempt of filing of the Contempt Petition and the manner in which it was presented and ultimately order made show a clear design to inflict upon the applicant not only loss of goodwill and reputation but by threatening to impair his personal liberty. It seems mischief has been played upon Supreme Court which may require the Court to look into the matter and pass consequential orders.”

 

Background of the case

 

Attorney General for India K K Venugopal and Secretary to the Government of India Dr. C. Chandramouli on behalf of the Central government had filed two separate contempt petition respectively against advocate Prashant Bhushan for his tweet of February 1, 2019, alleging that the government had misled the Supreme Court about the appointment of M Nageswara Rao as interim CBI Director.

AG had said that Prashant Bhushan without applying to the court for the minutes of the meeting of HPC dated January 10, 2019, chose to hurl vindictive allegations against the Attorney General for India and the Government of India and cast aspersions on the integrity of the AG. “This is not only reckless but also shows malice and dishonesty. It is evident an attempt to generate publicity through the press and social media”.

Further, by alleging fabrication of minutes of the high-powered committee (HPC) meeting, Bhushan had cast aspersions on a sitting judge of the Supreme Court. This would amount to contempt of the court, said Attorney General in his petition.

A two-judge bench comprising Justices Arun Mishra and Navin Sinha of the Supreme Court had issued a notice on a Contempt petitions and said it would decide larger issue “whether it is open to criticise the court proceedings to affect the public opinion by litigants and lawyers and protection of various other rights of the litigants are also involved; what are the rights of the litigants and what may amount to interference in the course of administration of justice. In view of the aforesaid decision and facts and circumstances, we deem it appropriate to hear the matter”.

The tweet was made by Bhushan in the backdrop of the submission made by the AG before a two-judge bench of the Supreme Court comprising Justices Arun Mishra and Navin Sinha, during the course of the hearing of a PIL challenging the appointment of M Nageswara Rao as interim CBI Director.

AG had submitted that the appointment of M Nageswara Rao had approval of the High Powered Committee (HPC) comprising Prime Minister Narendra Modi, the leader of single largest opposition party in Lok Sabha Mallikarjun Kharge and Justice A K Sikri of the Supreme Court. AG had also shared with the bench in a sealed cover, the minutes of the HPC meeting’s dated January 10, 2019. However, the same were not shared with the petitioners or anybody else.

After the hearing, Prashant Bhushan who was appearing for the petitioner NGO Common Cause and RTI activist Anjali Bhardwaj, tweeted that he spoke to Leader of Opposition Mallikarjun Kharge who denied any discussion having taken place in the High-powered committee regarding appointment of Rao. Hence, the government appeared to have misled the court, Bhushan wrote in his tweet.

The Contempt petition is listed for hearing on March 7, 2019.

 

Read the Application

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