Bhushan moves SC; seeks right to appeal in contempt conviction, hearing by larger bench

Satya Prakash

Tribune News Service

New Delhi, September 12

Activist-lawyer Prashant Bhushan on Saturday moved the Supreme Court seeking right to intra-court appeal to be heard by a larger and different Bench in contempt of court cases decided by the top court, saying absence of appeal provision violated principles of natural justice.

Alternatively, the court should issue a direction declaring that review petitions filed against orders of conviction by the Supreme Court in original criminal contempt cases would be heard in open court by a different Bench, Bhushan submitted in his petition.

“Contempt proceedings are one in which the injured party (Supreme Court) acts as the prosecutor, the witness and the judge, thereby raising fear of inherent bias. As a judge the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary… No one can be at once a suitor and a judge. Thus, there is a need for an intra-court appeal,” Bhushan submitted.

The petition comes less than two weeks after the Supreme Court imposed a token fine of Re 1 on Bhushan, who was convicted for criminal contempt for his two tweets against the judiciary, saying he had attempted to “denigrate the reputation of the institution of administration of justice”.

The conviction and sentence had come after Bhushan refused to apologise to the court. After the sentence was pronounced, he had announced that he would pay the fine and file a petition seeking review of the decision.

Bhushan is facing another criminal contempt case initiated in the top court 2009 for his statement in Tehelka Magazine that half the 16 former CJIs were “corrupt”.

The lawyer contended “that the right to appeal against conviction in original criminal cases is a substantive right under Article 21 and flows from principles of natural justice. The absence of such a right thus violates Article 21”.

Maintaining that contempt proceedings were quasi-criminal in nature, akin to a criminal trial, he argued that procedural safeguards similar to criminal trials must apply in contempt cases as well.

Describing ‘Original Criminal Contempt Cases’ before the Supreme Court as a unique and distinct category of cases, he pointed out how the top court in the past framed special rules to deal with death penalty cases and devised special remedy in the nature of ‘Curative Petition’ against its own final judgments on certain limited grounds. 

“Right of Appeal is an absolute right according to Article 14(5) of International Covenant on Civil and Political Rights (ICCPR) which India has ratified and is therefore binding upon the Indian State. Under ICCPR, first appeal is a right even where trial is by the Highest Court and Review is not a substitute for an appeal,” Bhushan contended.

“The freedom of speech guaranteed under Article 19 can only be restricted/regulated under Article 19(2) by a procedure which is reasonable and stands the test of Articles 14 (right to equality) and 21 (right to life and personal liberty),” he submitted.