SC to See If Allegations of Judicial Corruption Attract Contempt

Bench led by Justice Arun Mishra to examine broader questions in 2009 contempt case against Prashant Bhushan.

Prashant Bhushan and the Supreme Court.

(Photo: Aroop Mishra/The Quint)

In the other contempt case involving Prashant Bhushan before it, the Supreme Court has decided it will now examine whether it is possible to make allegations of corruption against judges, and if so, what the process for making such allegations should be.

A bench of Justices Arun Mishra, BR Gavai and Krishna Murari said that they were framing the following larger questions for hearing in the 11-year-old contempt case against Bhushan for comments made by him to Tehelka magazine in 2009, 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. Having indicated their desire to hear from lawyers on these issues at the next hearing, the court adjourned the matter for a week to 24 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. 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. 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.

WHAT HAS HAPPENED IN THE NEW HEARINGS TILL NOW?

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.

This case is different from the suo motu contempt case against Bhushan for two recent tweets. The same bench of judges held in that case that Bhushan was guilty of criminal contempt of court, and will hear arguments on sentencing on 20 August.

Bhushan’s lawyer Rajeev Dhavan informed the court that Bhushan would be filing a review petition against that judgment in the coming days.