Attorney General K.K. Venugopal asked the Supreme Court on Tuesday to examine how sensitive details of sub judice cases (cases pending in court) made their way to the media and were published on penultimate days of court hearings, threatening to injure the rights of parties.
“When a bail application is coming up, there are conversations on TV very damaging to the accused... On the day Rafale [case] is argued, an article with documents is published. The issue of sub judice has to be contended,” Mr. Venugopal told a Bench led by Justice A.M. Khanwilkar.
The submission was made while hearing a contempt case against civil rights lawyer Prashant Bhushan for comments he made about Supreme Court judges in an interview to Tehelka magazine in 2009.
But senior advocate Rajeev Dhavan, for Mr. Bhushan, mildly quoted his Shakespeare at Mr. Venugopal’s views.
“When Shylock’s case is going on, can we tell the Press not to talk about it?” Mr. Dhavan said.
“If we get into the sub judice issue, we will get into Sahara judgment, which does not ban comment. Other thing is this is an extremely wide area,” Mr. Dhavan submitted.
Case shifted to Nov.
The court asked the senior lawyers to coordinate and “refine” the issues which needed to be examined. The case was shifted to November.
In September, the case came to Justice Khanwilkar’s Bench after the retirement of Justice Arun Mishra, who had headed the Bench. Justice Khanwilkar invited the Attorney General to assist the court as amicus curiae .
The contempt case against Mr. Bhushan has brought to focus pertinent questions of law, including whether a person who expresses a bona fide opinion about judicial corruption was obliged to prove it or “whether it is enough to show that he bona fide held that opinion”.
This case also involved the issue whether the suo motu powers of the Supreme Court to initiate contempt under Article 129 of the Constitution to curtail free speech and expression is restrained by the Contempt of Courts Act, 1971.
Mr. Dhavan has strongly pitched for these questions to be referred to a Constitution Bench.
Also read: Contempt case statement by Prashant Bhushan issued on August 20, 2020
One of the questions also deals with the violation of due process as suo motu contempt proceedings in the Supreme Court has no provision for appeal. The court also wanted to hear arguments on laying down a procedure to be adopted if statements of judicial corruption are made in public against sitting as well as retired judges.
“Allegation of corruption per se cannot be contempt because the same pertains to criticism of a judge for a biased dispensation of justice and would in all cases require further investigation before such allegations are brushed aside at the threshold,” Mr. Bhushan had explained in his written submissions in the case.
He had said truth was a defence under Section 13 (b) of the Contempt of Courts Act, 1971.
Mr. Bhushan said he had used the word ‘corruption’ in the interview in a wider sense to include any act of impropriety other than merely financial corruption.
“Corruption in public life has a wide and expansive definition. Corruption is not restricted to pecuniary gratification alone but various instruments identify its particular forms such as bribery, embezzlement, theft, fraud, extortion, abuse of discretion, favouritism, nepotism, clientelism, conduct creating or exploiting conflicting interests,” his written submissions had pointed out.
