'Proceedings Against Prashant Bhushan Are A Travesty Of Justice': Chennai Lawyers Write To SC [Read Statement]

"Lawyers, being stakeholders and integral to the justice delivery system, have the unique privilege and duty to scrutinise the functioning of the Courts and act as conscience keepers of the judiciary through an audit of its functions. They are the interface between the public and the judiciary. The opinions expressed by a fearless Bar actually benefit the judiciary, as otherwise it has no mechanism to learn about people's opinion of its functioning. The judiciary does not function in a vacuum but in a political system impacting the lives of millions," the Advocates wrote while criticizing the verdict.

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They stressed that in the very nature of things, an action of criminal contempt creates a "stifling atmosphere" for the respondent, because the Court is the complainant/victim, the prosecutor and the judge. Hence, the same "must always be exercised cautiously, wisely and with circumspection".

In the letter, they have proceeded to highlight various inconsistencies in the proceedings against Mr. Bhushan, which as per them led to "travesty of justice".

Firstly, they have highlighted that Mr. Bhushan was "singled out" by the SC for voicing an opinion that has been shared and expressed by several others, including sitting and former judges of the Supreme Court itself.

"However, we are deeply disturbed by the action taken against Prashant Bhushan, a lawyer of more than 30 years practice in the Supreme Court and who has espoused many causes in public interest, often against high executive functionaries. His tweets only reflect what other commentators have said. It is therefore rather alarming that the Supreme Court has found him guilty of contempt holding that his tweets cannot be said to be "fair criticism", are scurrilous, malicious and have a tendency to scandalise the Court. It is to be noted that both the tweets are in the context of concerns/opinions from a cross section of informed public about the latitude shown by the Court towards draconian executive actions and the general image of the judiciary that has been dented by the actions/inactions of judges," the letter reads.

Secondly, they have expressed concern over the "hasty manner" in which the proceedings took place, without adhering to the procedural safeguards and principles of natural justice.

They pointed out that there is no discussion in the judgment as to how the impugned action (tweets) is found to be "malicious". Further, Mr. Bhushan's reply affidavit and the facts and circumstances given therein providing the basis for his opinion have also not been discussed nor has the opinion been held to be unfounded; and yet the Court exercised its constitutional power to find him guilty.

In so doing, the Advocates wrote, the Court rejected all his objections— (i) to the listing of the case, (ii) to the hearing by the Bench presided by Justice Arun Mishra and (iii) to non-supply of the administrative order for listing of the case or a copy of the complaint itself.

"Such objections are material while defending a person's liberty. Though the Supreme Court has held that it is not bound by the Contempt of Courts Act and the procedure can be summary, a fair procedure is essential for a just decision," the letter reads.

In this backdrop, the Advocates have raised the following issues before the Supreme Court, with hope that the Court will address the same:

• Even if the proceedings are summary, can the conduct of the proceedings for criminal contempt be left to the vagaries of the individual judge(s) who hear the matter, particularly when the Court acts both as a prosecutor and the judge and when the life and liberty of the respondent is at stake? In order to ensure a fair and just prosecution, should not the Court, as an institution, codify the procedure and strictly adhere to the same, so that the respondent has adequate notice of how to proceed?
• Should adherence to procedure and principles of natural justice not be mandatory before finding a person guilty of a crime impacting right to life guaranteed under Article 21, especially when the Supreme Court acts as both the trial Court and the final Court?
• When the contemnor had raised four preliminary objections – non-furnishing of administrative orders of the Court, non-furnishing of Maheshwari's complaint, likelihood of bias and a hearing in open Court after resumption of physical court hearings- should not the Bench hear each of these objections, pass a reasoned order on each objection and enable the respondent to prepare his defence thereafter?
• When the respondent had filed only a preliminary reply and expressed a handicap in raising a proper defence, should the case not have been posted for a final reply affidavit and evidence, if any?
• Does not the summary rejection of all the preliminary objections raised by the respondent and taking up the case for final hearing on the same day in haste create an oppressive atmosphere for the respondent and deny a fair hearing?
• When the criminal contempt proceedings are criminal in nature and the Supreme Court Rules to Regulate Contempt Proceedings, 1975 contemplate third party affidavits, examination of witnesses and documents, should not the respondent be afforded an opportunity to lead evidence, unhampered by limitations in a virtual hearing?
• Can the Court conclude that the respondent was motivated by malice without providing the respondent the opportunity of proving otherwise through evidence?
• Can the Bench, in the absence of an administrative order by the Master of the Roster, suo motu take up for hearing the case involving the second tweet dated 27.06.2020 concerning the role of the Supreme Court and the last four CJIs?
• When the offence alleged is one of criminal contempt, should not specific charges be framed and the contemnor afforded an adequate opportunity to respond to each of those charges?
• Though the Court can take suo motu cognisance of any publication, can the Registrar General ignore the Supreme Court Rules and take on record a defective petition filed without the Attorney General's sanction? It is such action of the Registrar General, which is in breach of the Court's Rules that has resulted in the instant case.
• When the contemnor has referred to an incident of impropriety by the presiding Judge, Hon'ble Mr.Justice Arun Mishra (para 92 of the reply affidavit), would it not have been appropriate to pass a reasoned order for rejecting the request to refer the matter to another Bench, lest it appear that there is an element of personal bias, especially when the respondent through a formal letter to the Hon'ble Chief Justice of India, also made the same request.
• Should not the view of the Attorney General be ascertained, after notice had been issued to him and he was present in Court?

Inter alia, Over 2000 lawyers, including noted Senior Advocates, have endorsed the statement of support for Bhushan.

The Executive Committee of the Bar Association of India also expressed its dismay at the Supreme Court verdict.

Bodies like Bar Association of India, Commonwealth Human Rights Initiative (CHRI), Campaign for Judicial Accountability and Reforms (CJAR) have also criticized the verdict against Bhushan.

Background

On August 14, the Supreme Court held Bhushan guilty of criminal contempt for tweeting against the judiciary. One tweet, made in reference to a picture of CJI Bobde seated on a Harley Davidson bike, alleged that the CJI was enjoying expensive bike rides while keeping the Supreme Court under lockdown.

Another tweet alleged that the Supreme Court contributed to the destruction of democracy in the last six years, and the last 4 CJIs played a particular role in that.

The Court held that the tweets were based on "distorted facts" and had the effect of undermining the authority and dignity of the court.

"The tweet has the effect of destabilising the very foundation of this important pillar of the Indian democracy...There is no manner of doubt, that the tweet tends to shake the public confidence in the institution of judiciary", observed a bench of Justices Arun Mishra, B R Gavai and Krishna Murari in the judgment.

Read Full Statement Here