The Supreme Court on Thursday reached out to Attorney General K.K. Venugopal to act as amicus curiae and assist the court with legal questions raised in a contempt case initiated against civil rights lawyer Prashant Bhushan for his remarks on judicial corruption in Tehelka magazine in 2009.
A three-judge Bench led by Justice A.M. Khanwilkar agreed with senior advocate Rajeev Dhavan’s suggestion that Mr. Venugopal needed to be heard first as the case raised several cardinal issues of the right to criticise the judiciary in a public forum.
The case has brought to focus pertinent questions of law, including whether a person who expresses a bona fide opinion about judicial corruption is obliged to prove it or “whether it is enough to show that he bona fide held that opinion”.
The case also involves the issue whether the suo motu powers of the Supreme Court to initiate contempt under Article 129 to curtail free speech and expression is restrained by the Contempt of Courts Act, 1971. Mr. Dhavan has strongly pitched for the questions to be referred to a Constitution Bench.
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.
This is the maiden hearing of the contempt case before the Justice Khanwilkar Bench. Earlier, the case was listed before another three-judge Bench headed by Justice Arun Mishra, who retired on September 2.
Hearing on October 12
The Justice Khanwilkar Bench ordered the copies of the case records to be served on the Attorney General and posted the case for hearing in October 12.
On August 10, the court had decided to hear arguments on whether the remarks in the interview against the judiciary amounted to per se contempt.
However, on August 17, the Justice Mishra Bench deflected the issue, saying the court should launch a detailed examination into the circumstances under which a person can make public allegations of corruption against the judiciary. The court also wanted to hear arguments on laying down a procedure to be adopted if such statements of corruption were 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 to the court.
He had said truth was a defence under Section 13 (b) of the Contempt of Courts Act, 1971.
“When such truth/defence is invoked, the court to hold the alleged contemnor guilty of contempt will have to necessarily return a finding that (a) such defence is not in public interest; and (b) the request for invoking such defence is not bona fide,” Mr. Bhushan had argued.
The senior lawyer 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, favoritism, nepotism, clientelism, conduct creating or exploiting conflicting interests,” his written submissions had said.