Prashant Bhushan Contempt Case Must Be Heard By A Constitution Bench, Says Justice Kurian Joseph

Justice Kurian Joseph, a former Supreme Court judge, has said that the contempt cases against Prashant Bhushan must be heard by a Constitution bench as it involves a substantial question of law.

While hearing the 2009 contempt case against Bhushan this week, the apex court decided to examine three questions:

• In case a public statement as to corruption by a particular judge(s) is permissible, under what circumstances and on what basis, it can be made, and safeguards, if any, to be observed in that regard?
• What procedure is to be adopted to make a complaint in such cases when the allegation is about the conduct of a sitting Judge?
• Whether any allegation as to corruption can be made against a retired Judge, thereby shaking the confidence of general public in the judiciary; and if it would be punishable under the Contempt of Courts Act?

The Supreme Court last week also found Bhushan guilty of contempt of court over two of his tweets made in June this year. The court, which took up the matter suo motu, will hear the case for sentencing on Thursday.

Justice Joseph said the court must also examine whether there should be a mechanism for an intra-court appeal against suo motu contempt verdicts of the top court "since in all other situations of conviction in criminal matters, the convicted person is entitled to have a second opportunity by way of an appeal".

Bhushan, meanwhile, moved the top court seeking deferment of Thursday's hearing, saying he would be filing a review petition against the finding of the court and until he exercises that right (within the limitation period of 30 days), the court must adjourn the hearing on the issue of sentencing.

"The fact that there is no appeal against an order of this Hon’ble Court makes it doubly necessary that it takes the utmost precaution to ensure that justice is not only done but seen to be done," Bhushan said in his application.

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Here’s Justice (Retd.) Kurian Joseph’s Full Statement

A three Judge bench of the Supreme Court of India has decided to hear a few serious questions on the scope and extent of contempt of Court. Certainly, there are more graver issues, involving substantial questions of law as to the interpretation of the Constitution of India.

For example, whether a person convicted by the Supreme Court of India in a suo-motu case should get an opportunity for an intra-court appeal since in all other situations of conviction in criminal matters, the convicted person is entitled to have a second opportunity by way of an appeal.

Under Section 19 of the Contempt of Courts Act, 1971, an intra-court appeal is provided where the order is passed by the single Judge of the High Court and in case it is by the Division Bench, appeal lies to the Supreme Court of India. This safeguard is provided probably to avoid even the remotest possibility of miscarriage of justice. Should there not be such a safeguard in the other Constitutional Court, the Supreme Court of India also, when there is a conviction in a suo-motu criminal contempt case? “Fīat jūstitia ruat cælum” (let justice be done though the heavens fall) is the fundamental basis of administration of justice by Courts. But, if justice is not done or if there is miscarriage of justice, heavens will certainly fall. The Supreme Court of India should not let it happen.

Under Article 145 (3) of the Constitution of India, there shall be a quorum of minimum five Judges for deciding any case involving substantial questions of law as to the interpretation of the Constitution. In both the suo-motu contempt cases, in view of the substantial questions of law on the interpretation of the Constitution of India and having serious repercussions on the fundamental rights, the matters require to be heard by a Constitution Bench.

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In the case of suo motu contempt against Justice CS Karnan, it was the collective wisdom of the full court of the Supreme Court that the matter should be heard at least by a bench consisting of the seven senior-most Judges. The present contempt cases are not cases involving just one or two individuals; but larger issues pertaining to the concept and jurisprudence of the Country regarding justice itself. Important cases like these need to be heard elaborately in a physical hearing where only there is scope for a broader discussion and wider participation.

Men may come and may go, but the Supreme Court of India should remain forever as the court of supreme justice.