'Undertakes To File Review In 30 Days' : Prashant Bhushan Files Application To Defer Sentence Hearing In Contempt Case [Read Application]

In his application, filed by Advocate Kamini Jaiswal, Bhushan has requested the Apex Court to postpone the hearing on sentencing, which is scheduled for August 20, till he files a review petition and that petition is decided upon.

Undertaking to file the Review within 30 days of the Court's Order dated 14.08.2020, Bhushan alternately prays that even if the hearing on sentencing is not deferred, the sentence may be stayed till the time his proposed Review is not decided.

"…it is prayed that the hearing on sentence be deferred until the proposed review petition is filed and decided. The applicant undertakes to file the review within 30 days from the date of judgment, as he is entitled under the law", prays Bhushan.

The applicant states that in an instance of a Suo Motu proceedings, the Supreme Court acts as a Court of first instance and there is no provision for appeal against its judgment. However, the only remedy available to him is through a Review, which he intends to file.

"It is humbly submitted that in an instance of suomotu proceedings with respect to contempt of this Hon'ble Court, this Hon'ble Court acts as a Court of first instance and there is no provision for appeal from its judgement. There is the remedy of a review application which in the present case where this Hon'ble Court is a court of first instance is akin to a first appeal." -states the application

Further, it is submitted that since the Top Court itself is acting like a trial Court in this case, and since human judgment is not infallible, it is necessary that utmost precaution is taken in arriving at a decision.

In this light, it is informed that Bhushan does intend to file a Review petition against the Order of August 14 and therefore, prays that the hearing on sentencing be deferred till his Review petition is decided.

"In criminal contempt proceedings, this Hon'ble Court functions like a trial court and is also the last court. Section 19(1) gives a statutory right of appeal to a person found guilty of contempt by the High Court. The fact that there is no appeal against an order of this Hon'ble Court makes it doubly necessary that it takes the utmost precaution to ensure that justice is not only done but seen to be done…

…since this Hon'ble Court acts as a court of first instance in a suomotu criminal contempt proceeding and there is no provision for appeal also, if there is conviction in such proceeding, the aforesaid principles of law, held in the context of a criminal trial, must apply parimateria to a case of a review filed against such conviction by this Hon'ble Court. It would be in consonance with the right guaranteed under Article 21 of the Constitution of India." -urges Bhushan.

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.

In a related development, Justice Kurian Joseph, former judge of the Supreme Court, issued a statement suggesting that intra-court appeal should be provided for suo moto contempt cases. He suggested that there should be the safeguard of intra-court appeal to "avoid even the remotest possibility of miscarriage of justice".

He pointed out that the contempt verdict in the suo moto case against Justice C S Karnan was passed by a bench of 7 senior judges.

He also added that "Important cases like these need to be heard elaborately in a physical hearing where only there is scope for a broader discussion and wider participation".

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