A proceeding that is supposed to decide whether two tweets by lawyer Prashant Bhushan constitute contempt of the Supreme Court is turning into a serious legal quagmire for the apex court, partly because of its decision to revive an older case and partly because of aggressive legal moves by Bhushan’s advocates.

On Wednesday, August 5, senior lawyer Dushyant Dave, who was representing Bhushan in the contempt case, asked the court not to convict him, arguing his intention was the betterment of the justice delivery system.

While making these arguments, Dave raised a series of questions: Why are some judges not being allotted sensitive cases? How should one view the reinstatement of a woman Supreme Court employee who had accused former Chief Justice Ranjan Gogoi of sexual harassment last April? She was reinstated even though her complaint was dismissed. What about the criticism that four sitting judges had mounted on the functioning of the court at a press conference in January 2018?

With this, criticism of the judiciary, which is mostly confined to critiques in the media, resounded in the Supreme Court itself.

In the past, judges have been able to avoid responding to criticism about their conduct by falling back on the argument that speaking to the media to defend themselves would violate their code of ethics. However, now that these questions have been raised in the court itself, it remains to be seen whether the judges would to respond to them in their judgment.

What complicates matters for the Supreme Court is that not only did it initiate a fresh suo motu case against Prashant Bhushan, it also exhumed another contempt case against the lawyer registered in 2009. The case involved an interview Bhushan gave to the Tehelka magazine, in which he had made allegations of corruption in the Supreme Court and said half of the previous 16 Chief Justices were corrupt.

The proceedings of that case were controversial. Former Union Law Minister Shanti Bhushan, the father of Prashant Bhushan, wanted to implead himself in the case in 2011. He had presented documents in a sealed cover containing the names of the former CJIs that Prashant Bhushan referred to in the Tehelka interview in an attempt to substantiate his son’s case.

Last month, when Shanti Bhushan appeared before the court when the matter was taken up for hearing, the bench said it was not going to implead him. This leaves the question of the sealed cover hanging.

Given that the impleading petition itself has been rejected, would the court open the sealed cover and discuss what it contains?

Bhushan’s counter

In the affidavit he filed before the Supreme Court in the suo motu contempt case regarding his tweets, Bhushan said there were procedural lapses.

First, the suo motu notices followed a petition filed by one Mehak Maheshwari, who had brought the tweets to the notice of the court. Usually, when a contempt of court application is moved, the consent of the attorney general is necessary. If not, a specific exemption has to be sought from the court, which is what the petition did.

Such petitions are placed on the administrative side to enable the Chief Justice of India to take a call on whether they warrant a judicial hearing. Bhushan said the Supreme Court registry had not provided him documents showing the proceedings on the administrative side, neither was Maheshwari’s petition attached to the suo motu notice.

The Supreme Court building. Credi

Bhushan had also filed a separate application before the court explaining the procedural lapses, especially the fact that Maheshwari’s petition was not placed before the attorney general for his consent and that the Supreme Court registry cannot place such a petition directly before the bench.

This application was dismissed by the court, with Justice Mishra explaining that the matter was placed on the administrative side according to the decision in P N Duda vs P Shiv Shanker. The Chief Justice, he said, “could not come to a decision” and hence the matter was placed before Justice Ramana on the administrative side. “Justice Ramana decided that this matter should be brought to the judicial side, therefore it came before all of us,” he said.

On the tweet themselves, Prashant Bhushan’s arguments centered around the fact that they were issued in the interest of justice.

On the tweet from June when he had commented on a picture of Chief Justice SA Bobde sitting on a Harley Davidson motorcycle, which many have claimed belonged to a Bharatiya Janata Party leader, Bhushan said: “While the Chief Justice who has ultimate administrative authority over the Supreme Court was not allowing regular functioning for four months because of COVID pandemic, he was seen on a motorcycle in a public place with several people around him, without a mask. This seemed incongruous to me.”

The references in the tweet about the cost of the bike and that it belonged to a BJP leader were facts which, Bhushan said, “had been detailed by many people on social media.” He, however, regretted a mistake he had made. He conceded that he had incorrectly stated that the chief justice was riding the bike – he said he had missed noticing that the motorcycle was resting on a stand.

As for the second tweet in which he commented on the role of the Supreme Court under the last four chief justices and claimed that historians would recall the contribution of this period in the “destruction of democracy”, Bhushan listed several cases that remain pending. This includes several petitions related to the abrogation of Jammu and Kashmir’s special status on August 5 last year, the challenges to the Citizenship Amendment Act and multiple habeas corpus petitions. He faulted the functioning of the court for allowing delays in such important matters. In contrast, he pointed to the speedy hearing of the Ayodhya matter by a Constitution bench.

“All these egregious assaults on civil rights and on institutions have been allowed to go through, without any accountability,” the lawyer pointed out.

He then substantiated his arguments against the functioning of the chief justices, referring to the January 2018 press conference of the four judges against Justice Dipak Misra and the way the sexual harassment complaint against Justice Ranjan Gogoi by a woman employee of the court was handled.

In April 2019, a woman employee had charged Justice Gogoi of sexual harassment and sent letters to 22 judges detailing the events. A committee formed by the court dismissed these allegations. However, she was reinstated in January this year. In her letter to the judges, she had explained how she was removed from service based on flimsy grounds.

Dave’s arguments

On Wednesday, when the suo motu proceedings against Bhushan’s tweets came up, his lawyer Dushyant Dave, after long arguments on the legal aspects, decided to bring up the sensitive questions over the functioning of the court before a bench led by Justice Arun Mishra.

In the arguments, Dave alleged some judges were not being allotted sensitive cases. In this, he specifically named Justice Rohinton Nariman, despite protests from the bench that Justice Nariman had been allotted several constitutional cases.

He then argued that Bhushan’s statements merely echoed what four judges had raised in a press conference in January 2018. The judges had drawn attention to the way Chief Justice Misra exercised his powers as the master of the roster, allocating sensitive matters to specific judges.

Dave also pointed to the manner in which the sexual harassment complaint against the Justice Gogoi had been handled. He said that the woman employee was later reinstated by the court, which shows the complaint was true.

He also hit out at the fact that Justice Gogoi then took up a nomination to the Rajya Sabha.

Dave then asked if contempt notices could be issued in all such instances, since they constituted criticism of the judges. He even presented before the bench several tweets commenting on the photograph of Justice Bobde on a motorcycle.

2009 case

On Wednesday, the 2009 contempt case against Bhushan also came up. The proceedings were taking place over a video conference as the physical courts continue to remain shut due to the Covid-19 pandemic. In what was a surprising development, the bench, during the proceedings, switched off the microphone and decided to talk to Bhushan’s lawyer, Rajeev Dhawan, off camera, over the phone.

Later, the media reported that the bench sought if Bhushan would issue an “explnation/apology” in the case.According to Livelaw, Bhushan refused to tender an apology but said he will provide an explanation on the interview he had given to Tehelka.

When the court reassembled in the afternoon, Justice Mishra said the court may order that any statement of corruption in the judiciary would amount to per se contempt. Dhavan said that such a finding should not be rendered without hearing the parties.

In a media statement on Wednesday after the proceedings, Bhushan regretted the “hurt” the interview may have caused the chief justices and their families. “In my interview with Tehelka in 2009, I used the word corruption in a wide sense,” he added. “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.”

The other party to the case, former Tehelka Editor Tarun Tejpal, has offered an unconditional apology.

What is significant is that the fate of the sealed cover submitted by Shanti Bhushan in the case in 2011 is left hanging as the court has said his petition to implead is not being accepted. Meanwhile, The Wire reported that Bhushan in 2011 had asked the court to refer the question of whether a bona fide comment could be contempt at all to a larger bench, a decision which is yet to be taken.

Orders have been reserved in both the cases. While the court would need to take final view on whether the tweets constitute contempt, in the 2009 case, the court will have to decide whether to accept Bhushan’s expression of regret.

Opening the sealed cover that Shanti Bhushan submitted and making its contents public may very well throw the Supreme Court into another round of controversy, as it involves the reputation of former chief justices of the court.

What was supposed to be a suo motu proceeding against an individual is turning into a much larger case, all because the Supreme Court chose to reanimate something that lay dormant for eight years.