Did SC Stop Open Hearings on 2009 Contempt Case Against Bhushan?

Justice Mishra said they would speak to advocate Rajeev Dhavan in private to find a way to resolve the ‘rigmarole’.

Eminent lawyer Prashant Bhushan addresses a press conference in Lucknow on 9 March 2019.

(Photo: IANS)

The Supreme Court of India appears to have decided to stop public hearings on a 2009 contempt case against Prashant Bhushan, that had been brought back into the spotlight by the court recently.

On Tuesday, 4 August, a day after the well-known activist lawyer filed a spirited defence in a separate suo motu contempt case against him for his recent tweets, a bench of Justice Arun Mishra, BR Gavai and Krishna Murari began conducting a hearing on the older contempt case.

After briefly hearing arguments by senior advocate Rajeev Dhavan for Bhushan, Justice Mishra said there was a fine line between freedom of speech and contempt, and that Bhushan's comments in 2009 to Tehelka about corruption in the judiciary may have crossed that line.

WHAT HAPPENED AT COURT?

Dhavan suggested that if the bench revisit the explanation for his comments offered by Bhushan during an earlier hearing in the case (through his then lawyer, the late Ram Jethmalani), the matter could be closed.

However, Justice Mishra then said that this was about saving the grace of the system, and said that they would speak to Dhavan in private to find a way to resolve the 'rigmarole'.

Following this, the mics of the bench and Dhavan were muted, and Dhavan was called by the judges on his phone line to discuss the matter with the judges. It therefore appears that the judges have stopped the public hearing of this case, and have converted it into in-camera proceedings.

The hearing proceeded on phone, with microphones muted and cameras switched off. The bench eventually re-assembled, but Dhavan was again asked to pick up his phone, and the video-conferencing call was then ended by the court. The hearing is reportedly still underway.

WHAT IS THIS CASE ABOUT?

The case in question had been 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 SC.

Salve informed the court of the interview given by Bhushan to Tehelka.

A Supreme Court order from the time describes the allegations as follows:

“The learned Amicus Curiae drew the attention of the court to certain statements which had been made by the Respondent No 1 in an interview given to Ms Shoma Chaudhury, wherein various statements were made alleging corruption in the judiciary and, in particular, the higher judiciary, without any material in support thereof. In the interview he went on to say that although he did not have any proof for his allegations, half of the last 16 Chief Justices were corrupt. He also made a serious imputation against the Hon’ble the Chief Justice of India, Justice SH Kapadia, as His Lordship then was, alleging misdemeanor with regard to the hearing of a matter involving a company known as Sterlite, in which Justice Kapadia had certain shares, deliberately omitting to mention that the said fact had been made known to the counsel appearing in the matter, who had categorically stated that they had no objection whatsoever to the matter being heard by His Lordship.”

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. The apex court had rejected these arguments and said the contempt case should proceed.

However, the case did not proceed far after that, with Jethmalani arguing at a subsequent hearing that the matter should be referred to a larger bench as there were key issues on freedom of speech and constitutionality of contempt of court involved. Bhushan's father, the veteran lawyer and former Law Minister Shanti Bhushan, filed an affidavit in the court stating he held the same opinion as his son, that 8 of the last 16 CJIs (at the time) had been corrupt.

The last hearing in the matter had taken place in 2012, before it was suddenly listed before Justice Arun Mishra's bench on 24 July – the news of it being dug up on the same day as the court listed the new suo motu contempt case.

In that separate suo motu case, Bhushan has replied with an affidavit in which he has argued that the views expressed by him in his tweets are his bona fide opinion, and has provided detailed reasons for why he thinks the Supreme Court, and the last four Chief Justices of India in particular, have played a role in the destruction of democracy in the last six years.

This is a developing story and will be updated as further details and confirmation are available.