Old Bhushan Contempt Case to Be Heard After Justice Mishra Retires

2009 case relating to comments by Bhushan in interview to Tehelka magazine adjourned till 10 September.

Image of Justice Arun Mishra (L) and senior advocate Prashant Bhushan (R) used for representational purposes.

(Photo: Arnica Kala / The Quint)

On Tuesday, 25 August, the Supreme Court decided to adjourn the 2009 contempt case against Prashant Bhushan for his comments about corruption in the judiciary to Tehelka magazine till 10 September. The matter will now be heard by a different bench, following Justice Arun Mishra’s retirement on 2 September.

This is different from the other suo motu contempt case against the lawyer-activist in the Supreme Court, which relates to two recent tweets. Bhushan has already been found guilty of criminal contempt in that case.

In the 2009 case, a three-judge bench of the court, comprising Justices Arun Mishra, BR Gavai, and Krishna Murari, had previously decided it would examine whether it is possible to make allegations of corruption against judges, and if so, what the process for making such allegations should be.

The judges had asked lawyers to present their views to the court on 25 August regarding these issues. On the day, senior advocates Rajeev Dhavan (appearing for Bhushan) and Kapil Sibal (appearing for Tarun Tejpal/Tehelka) urged the court to refer the case to a Constitution Bench as it involved important constitutional questions relating to freedom of speech.

Justice Mishra acknowledged that the current bench would be “short of time” to hear the case, as he was demitting office soon. While the court has not made a decision on the referral of the case to a larger bench, the bench has asked for it to be listed before an “appropriate bench.”

WHAT HAS HAPPENED IN THE CASE TILL NOW?

During the previous hearing on 17 August, the bench of Justices Arun Mishra, BR Gavai, and Krishna Murari said that it intended to frame the following larger questions for hearing, according to Live Law:

1. Can public allegations about corruption be made against judges, and if so, under what circumstances?
2. What should be the process to be allowed to make an allegation of corruption against sitting and retired judges? (Based on an older judgment by Justice JS Verma which, according to Justice Mishra, holds that such allegations should not be made publicly at first, and must first be submitted to the Supreme Court on its administrative side for an internal inquiry.)

The bench noted that these questions were particularly important for allegations made against judges with respect to sub judice cases, and the extent to which they can then be aired in the media and elsewhere.

The court has clarified that they will not be examining these questions with reference to Bhushan alone, but in a broader context. The judges had indicated that they wanted to ‘bring quietus’ to the case about Bhushan himself, and put an end to the case.

On 4 August, the judges had conducted a private hearing with Bhushan’s lawyer, senior advocate Rajeev Dhavan after switching off all microphones and cameras from the video conference hearing. Following this, they had said they would await an explanation or apology from the anti-corruption crusader.

“In case we do not accept the explanation/apology, we will hear the matter,” the judges had written while reserving their order.

Bhushan submitted an explanation on the day, although he refused to apologise to the court for the statement. His office put out a press release which stated that the following explanation had been provided to the court for his statement:

“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.”

On 10 August, however, the judges stated that the case needed to be heard on merits, evidently meaning that they had not accepted Bhushan’s explanation as sufficient, leading to the developments on 17 August.

WHAT IS THIS CASE ABOUT?

The case was filed in 2009 on a complaint by senior advocate Harish Salve, who was back then appearing as an amicus curiae in a PIL before the Supreme Court.

Salve informed the court of an interview given by Bhushan to Tehelka. In the interview, Bhushan had made allegations of corruption against judges of the apex court, saying that half of the last 16 CJIs (at that time) had been corrupt.

Bhushan, represented by famous lawyer Ram Jethmalani at that time, had tried to object to the maintainability of the case, saying his statements did not amount to contempt of court. However, the court decided that the case should proceed.

Jethmalani then argued that a larger bench of five judges or more was needed to hear the case as it involves issues of constitutional importance, relating to the right to freedom of speech.

Bhushan's father, the veteran lawyer and former Law Minister Shanti Bhushan, subsequently filed an affidavit in the court stating he held the same opinion as his son, that eight of the last 16 CJIs (at the time) had been corrupt.

No substantive hearings had been held in the case since 2012, before it was suddenly listed on 24 July.