[dropcap]F[/dropcap]ROM  a contempt of Court application in the Central Bureau of Investigation (CBI) versus the State of West Bengal case, we move to Contempt of Court in the Attorney of General for India versus Prashant Bhushan and Government of India versus Prashant Bhushan, set for hearing today.

This is not the first time that advocate Prashant Bhushan is facing an application for Contempt of Court. However, what makes it stand out is the fact that the Attorney General for India, K K Venugopal, is the applicant who has signed his own affidavit and alleged that Prashant Bhushan has committed contempt not only of the Court but also of the Attorney General with the following tweet:

This tweet, according to the Attorney General, casts aspersion on the "integrity" and "honesty" of the Attorney General by suggesting that he (the AG) "misled" the court and hence Prashant Bhushan has committed contempt of court. Prashant the application says, has also cast an aspersion on a sitting judge of the Supreme Court.

Further, the Attorney General says that Prashant Bhushan has "scandalised" the court. He has also commented on a matter, which is sub-judice before the Court, says the application. He has also cast aspersions on a sitting judge of the Supreme Court of India, in suggesting that the minutes of the HPC were "perhaps fabricated".

The Attorney General filed a redacted version of the minutes of the HPC held on January 10, 2019 in a sealed cover and opened the sealed cover for the judges eyes only. While doing so, he is reported to have said in the open court that the decision to appoint the interim director CBI had the consent/approval of the HPC.

Prashant Bhushan taken by surprise, said if that were indeed the case, nothing survived on that issue. The matter stood adjourned for the appointment of a Director of the CBI.

Pertinently, those minutes were not shared with Prashant Bhushan. It was natural, therefore, that he would make his own enquires from the Leader of the single largest opposition party in Lok Sabha, Mallikarjun Kharge, who was a member of the HPC and particularly, given the fact that he had written a letter to the Prime Minister on January 14, 2019 wherein at para 9 of it, he categorically stated:

"….The appointment of the interim Director (a post that does not legally exist as per DSPE Act) has once again been made "without consulting the Selection Committee".

It was in these circumstances that Prashant Bhushan tweeted what he did and it was for that tweet that  contempt  of court action was taken against him.

We now have the redacted version of the minutes of HPC meeting held on January 10, 2019, which read as follows:

"12 Having considered all the above facts and also the exceptional circumstances and public interest involved, the Committee, with the dissenting view of Shri Kharge, decided as follows:

i. Shri Alok Kumar Verma be transferred from the post of Director, CBI and given a suitable assignment for the residual period of his present term ending on 31.01.2019.

ii. The Central Government may post a suitable officer to look after the duties of the Director, CBI till the appointment of a new Director. CBI.

Referring to the Supreme Court's decision in P C Sen, Re v., (1969) 2 SCR 649 the Attorney General in his petition, seems to suggest that Prashant Bhushan "misrepresented" the proceedings of the court.

'Misrepresentation' of court proceedings

Let us address that issue  of   "misrepresenting" proceedings of the court. From the bare perusal of the minutes, following questions arise:

• Was  the appointment of M Nageswara Rao as the interim director made in the meeting of January 10, 2019?

Far  from making the appointment, the HPC appears to have delegated the job of making the appointment to the Central Government. It is a different matter whether they had the power to delegate at all.

What is clear is that they did not approve of the name of M Nageswara Rao at the meeting of January 10, 2019. There is no evidence that after the Government decided to appoint M  Nageswara Rao,  the decision was  placed before the  HPC.

• How then can it be said that the decision to appoint M Nageswara Rao was made by the HPC?

The Petition filed by Common Cause is still pending before the Court and the applications for contempt have  been field before the same court. One can therefore assume that the question whether Prashant Bhushan misrepresented "court proceedings" will be considered in the context of the minutes now produced with the Contempt application and the Statement made by the Attorney General in open court.

The Court will have to decide, whether the statement made by Prashant Bhushan "gov misled the court" is a "false" statement. This is the issue that the Court will have to decide in the Contempt application on board today before the Bench presided over by Justice Arun Mishra and Justice Navin Sinha.

That leaves the issue of "fabricating minutes" to be considered as contempt. To begin with the sentence commence with "perhaps" and this is not an assertion of a fact but a speculation about the possibility  of "fabrication", made in the light of the fact that Mallikarjun Kharge has said in his letter that the appointment of the interim  director was made without "consulting the selection committee".

There is then the issue of commenting on a matter, which is sub judice. If commenting on pending proceedings is contempt, then every single television channel must be held guilty of contempt every day. Court proceedings are the stuff of news everyday 24/7.

While it is true that media trials are not to be encouraged since they are likely to prejudice a litigant, this can hardly apply to issues of national importance which affect the functioning of institutions and not of individuals.

The question at hand in the Petition filed by Common Cause was, whether the appointment of the interim director was approved by the HPC constituted under Section 4A(1) of the Delhi Special Police Establishment Act, 1946 (DSPE Act). There is hardly any doubt that this is a matter of the public importance. Whether he was or was not approved by the HPC was a question of fact to be disclosed to the court.

There are two competing public interests here, the need to prevent prejudice of judicial proceedings and the public interest in the right to know and freedom of expression. Courts have always balanced the two needs to decide which one is to be prioritised in a given case.

While dealing with the issue of disclosure in the press of the terms of a settlement in the Thalidomide case which resulted in deformed children being born while proceedings were pending, the European Court of Human Rights in The Sunday Times v. United Kingdom held:  "….that the interference did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression …."

It is obvious that there was an undisputed public interest in knowing whether the interim Director's appointment was approved of by the High Powered Committee (HPC) constituted in terms of Section 4A(1) of the Delhi Special Police Act.

Was the Court 'scandalised'?

Moving to the question of "scandalising" the Court, when the truth is stated, it does not "scandalise" the court. If it is true that the Selection Committee HPC held on January 10, 2019 did not select M Nageswara Rao as the interim director, then   the question of "scandalising" the court may not arise.

Finally, the contempt application suggests that Prashant Bhushan has "scandalised" a sitting judge of the Supreme Court of India. It is true that Justice Sikri was a member of the Selection Committee, but while sitting on the Committee he was not performing a judicial function but an executive function of making a selection to a post.

When the truth is stated, it does not "scandalise" the court.

Now moving to yet another question of "lowering" the authority of the court. Judging from editorials in the press, what seems to have "lowered" the authority of the court is "sealed cover" procedure. Take for example, in the case of Rafale deal, it is this very "sealed cover" which caused the Government of India to move an application for "correction" of the Judgment, leading to public criticism of the procedure.

Meanwhile, at the time of writing, there is news that the Government of Indian has also filed a Petition against Prashant Bhushan for contempt of court.

The root of the problem is the "sealed cover" being invoked by the Court in pending proceedings before it.

We wait now to see how a bench presided over by Justices Arun Mishra and Justice Navin Sinha will deal with the two applications filed, one by the Attorney General  and the other by the Government of India.