Whether Bona Fide Opinion About Corruption In Judiciary Amount To Contempt: Prashant Bhushan Submits 10 Questions In 2009 Case

After the Supreme Court framed larger questions for consideration in an eleven-year old contempt case against Advocate Prashant Bhushan for alleging that "at least half of the 16 Chief Justices of India were corrupt" in an interview to Tehelka Magazine in 2009, a revised list of questions have been put to top court in light of its earlier order of November 16 2011.

The Court had then observed that the decision whether questions framed by Bhushan on referring certain issues to the Constitution Bench will be heard at a later stage.

In this backdrop, the list states that the following 10 questions are revised questions of law of considerable constitutional importance in tune with the earlier order of the Supreme Court. The questions so formulated are:

1. Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of Court?

2. If the answer to Question 1 is in the affirmative, whether the person who expresses such an opinion about the extent of corruption in a section of judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he bona fide held that opinion?

3. Whether the Supreme Court in exercise of its powers under Article 129 can curtail free speech and expression only to the strict and limited extent permissible under the Contempt of Courts Act, 1971?

4. Whether the decisions in Ex Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 and Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 are mutually inconsistent and deserve to be reconciled by a bench of the appropriate strength, and whether in any event both judgments deserve to be referred to a larger bench in order to reconcile them with the issues raised in Question 3 above?

5. a) Whether the Contempt of Courts Act, 1971 ought to bear on the manner in which the vast discretion in relation to contempt proceedings under Articles 129 and 215 of the Constitution is exercised?

(b) Whether, in answer to the foregoing question, the conflicting pronouncements of this Hon'ble Court in Pallav Sheth v. Custodian (2001) 7 SCC 549 and In re Prashant Bhushan, SMC (Crim.) No. 1 of 2020 (decided 14th August 2020) deserve re-examination?

6. Whether, in light of the law laid down by this Hon'ble Court in Dadu v. State of Maharashtra (2000) 8 SCC 437 (paras 17&18) and, the absence of any provision for appeal against conviction in a suo-motu proceeding for criminal contempt initiated by this Hon'ble Court violates Article 21 of the Constitution of India? 

7. Whether, after the interconnected reading of Articles 14, 19 & 21 in RC Cooper v. Union of India (1970) 1 SCC 248 (11 Judges) and in Maneka Gandhi v. Union of India (1978) 1 SCC 248 (7 Judges), the law of contempt should be subject to the concepts enumerated in these decisions, both in relation of the Contempt of Courts Act, 1971 as well as Articles 129 & 215 of the Constitution of India?

8. Whether cases relating to Section 2(c)(i) of the Contempt of Courts Act 1971 decided before its enactment need to be re-examined in the light of the Contempt of Courts Act, 1971 and judgments interpreting it?

9. Whether the in-house procedure for dealing with complaints against judges laid down in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 prevents complainants, participants in the procedure and others from discussing the matter in the public domain?

10. Whether the decision in C. RavichandranIyer v. Justice A.M. Bhattacharjee and Ors. (1995) 5 SCC 457 is compatible with constitutional limitations including those contained in Articles 19(2) and 14? 

On August 17, a bench of Justices Arun Mishra, BR Gavai & Krishna Murari stated that the following questions, having larger ramifications, arose in the case: 

(i) In case a public statement as to corruption by a particular Judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard ?

(ii) What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting Judge ?

(iii) Whether against retired Judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?

On August 10, the Court had decided to hold a detailed hearing on whether to accept the explanation tendered by Advocate Prashant Bhushan in the contempt case and whether corruption allegations against judges, by themselves, would constitute contempt.

The subject matter of the case is an interview given by Bhushan to Shoma Chaudhury of Tehelka magazine in 2009, where he allegedly said that for his allegations, half of the last 16 Chief Justices were corrupt. As per the complaint, Bhushan also said in the interview that he had no proof for the allegations.

On August 4, a bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari had reserved orders on whether to accept his explanation and said that it will proceed to hear the case in detail if his explanation was not found acceptable.

"In case we do not accept the explanation/apology, we will hear the matter. We reserve the order", the bench noted in the order.

As per the press release issued by Prashant Bhushan's office, he refused to tender an apology but agreed to issue the following explanation.

"In my interview to Tehelka in 2009 I have used the word corruption in a wide sense meaning lack of propriety. I did not mean only financial corruption or deriving any pecuniary advantage. If what I have said caused hurt to any of them or to their families in any way, I regret the same. I unreservedly state that I support the institution of the judiciary and especially the Supreme Court of which I am a part, and had no intention to lower the prestige of the judiciary in which I have complete faith. I regret if my interview was misunderstood as doing so, that is, lower the reputation of the judiciary, especially the Supreme Court, which could never have been my intention at all."

The suo motu case was taken on the basis of a complaint made by Senior Advocate Harish Salve.

The contempt proceedings pertain to allegations made by Salve towards Bhushan where Bhushan allegedly said that half of the last 16 Chief Justices were corrupt. As per the complaint, Bhushan also said in the interview that he had no proof for the allegations.

On November 6, 2009, the complaint was placed before a bench comprising the then Chief Justice K G Balakrishnan and Justice S H Kapadia, which directed that the matter be listed before a 3-judge bench in which Justice Kapadia was not a member.

On January 19, 2010, a bench comprising Justices Altamas Kabir, Cyriac Joseph and H L Dattu issued notices to Bhushan and Tarun Tejpal, the Editor-in-Chief of Tehelka magazine

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