Retired Supreme Court judge Justice Kurien Joseph on Wednesday issued a statement calling for the creation of a five-judge Constitution Bench to hear the two contempt cases against advocate Prashant Bhushan, The Hindu reported. Joseph said that both cases involve “substantial questions of law on the interpretation of the Constitution of India and having serious repercussions on the fundamental rights”.

The Supreme Court had on August 17 decided to launch a probe into the circumstances under which a person can publicise allegations of corruption against the judiciary. The three-judge bench led by Justice Arun Mishra also decided to hear arguments on a procedure to be used by courts if the comments are made in public against sitting and retired judges.

The first contempt case relates to tweets Bhushan made on July 17 and July 19 criticising the judiciary. The Supreme Court had convicted Bhushan for contempt of court on August 14. The quantum of punishment will be announced on Thursday.

The second case relates to an interview Bhushan gave to Tehelka magazine in 2009, in which he claimed that half of the 16 previous Supreme Court chief justices had been corrupt.

On Wednesday, Joseph said that Article 145(3) of the Constitution of India states that 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”. He said the contempt cases against Bhushan are not just cases against one or two individuals, but “larger issues pertaining to the concept and jurisprudence of the country regarding justice itself”.

Joseph also said there is a question as to whether a person convicted by the Supreme Court in a suo-motu case should get an opportunity for an intra-court appeal. He said that according to Section 19 of the Contempt of Courts Act, 1971, an intra-court appeal is allowed when the order is passed by the single judge of the High Court. Joseph asked if there should not be a similar safeguard for contempt cases in the Supreme Court.

Civil society members condemn verdict against Bhushan

Meanwhile, a group of 88 academics and civil society members have signed a statement criticising the Supreme Court verdict.

“We deeply regret the judgement of the Supreme Court of India in the contempt case against Adv. Prashant Bhushan,” the statement read. “We affirm our right to criticise and express our dissent with any action or inaction of the Supreme Court when necessary.” The academics and civil society members include professor Jayati Ghosh, educator Vijayalakshmi Pandit, former Delhi University faculty member Shamshul Islam and filmmaker Anand Patwardhan, among others.

Mazdoor Kisan Shakti Sangathan criticises judgement

The Mazdoor Kisan Shakti Sangathan also condemned the verdict. The organisation called the Supreme Court judgement “a blot on the history of independent, democratic and free India”.

“We reiterate that Mr Bhushan’s two tweets were legitimate expressions of critique of the court and the Chief Justice of India,” the organisation said. It added that it is alarming that at a time when the courts are hearing only urgent cases, the Supreme Court has summarily passed its verdicts in the contempt cases against Bhushan.

“Holding Prashant Bhushan guilty of contempt is not befitting of the dignity and majesty of the highest court of the land,” the statement added. “For decades, Prashant Bhushan has fought for the rights of the poor and marginalised in the Supreme Court, representing social movements and people’s organisations, in cases that have expanded the constitutional promise of a more just and equitable society.”

The organisation also said that some recent judgements of the Supreme Court have come under scrutiny. It cited the example of delay in orders to provide relief for migrant workers post the coronavirus-induced lockdown, and the court’s decision not to hold any physical hearings. “In the past few years, legitimate concerns have been raised about the reluctance of the Supreme Court to play its constitutionally mandated role as a check on governmental excesses and violations of fundamental rights of people by the State,” the statement added.

More than 3,000 members of civil society including former judges, retired bureaucrats, journalists and lawyers, had on August 17 criticised the Supreme Court’s order against Bhushan. The signatories included former Supreme Court judges Ruma Pal, B Sudershan Reddy, Madan B Lokur, human rights activist Harsh Mander and historian Romila Thapar. The signatories said that expressing concern about the functioning of the judiciary was the fundamental right of every citizen.

More than 1,800 members of the bar also criticised the Supreme Court’s decision to hold Bhushan guilty of contempt over his tweets. Besides this, Opposition leaders, lawyers, and human rights organisations had criticised the top court’s verdict, calling it “alarming”, and a “blow to the rule of law”.

Earlier on Wednesday, Bhushan sought deferment of Thursday’s proceedings for announcing his quantum of punishment in the tweets case. In his application, the lawyer said he wanted to file a review petition after seeking legal counsel and studying the August 14 order in detail. A person found guilty of contempt by a judicial body can be imprisoned for six months, fined up to Rs 2,000 or both.