The Supreme Court on Tuesday referred a 2009 contempt case against advocate Prashant Bhushan to an “appropriate bench” that will take up the matter on September 10, reported Live Law.

The case is related to Bhushan’s interview to Tehelka magazine 11 years ago in which he made allegations of corruption in the Supreme Court and said that half of the previous 16 chief justices were corrupt. The contempt of court case was filed by advocate Harish Salve.

The court said it was not a question of punishment, but one of faith in the institution. “When people come to the court for relief when that faith is shaken that’s a problem,” it observed.

Bhushan’s lawyer Rajeev Dhawan had argued that any question in reference to corruption by judges – whether it amounts to contempt or not – should be examined by a Constitution bench.

Incidentally, Justice Arun Mishra said it might not be “proper” for him to decide on this since he will retire before September 10, Live Law reported. “I am short of time,” he said. “I am demitting office.”

The hearing has been going on for over 10 years. On November 10, 2010, a three-judge bench held that the petition was maintainable. The matter again came up during the hearing of another contempt case against Bhushan earlier this month.

On August 4, a bench comprising Justices Arun Mishra, BR Gavai and Krishna Murari had reserved orders on whether to accept Bhushan’s explanation and said it would proceed to hear the case in detail only if they found his arguments acceptable. The top court told Bhushan that there was a “thin line” between contempt and freedom of speech.

Bhushan had refused to apologise but offered an explanation. Below is an excerpt from 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. 

Another contempt of court case

Bhushan is facing another contempt case related to two tweets posted by him on June 27 and 29. The senior advocate was held guilty of contempt of court on August 14.

The first tweet commented about an undeclared emergency and the role of Supreme Court and last four chief justices of India. The second tweet was about Chief Justice SA Bobde trying a Harley Davidson superbike in his hometown Nagpur during the coronavirus outbreak.

In the August 14 verdict, the court had said the magnanimity of judges cannot be stretched to the extent that it “may amount to weakness in dealing with a malicious, scurrilous, calculated attack” on the judiciary. This was in response to Bhushan’s statement that that the judges needed to be magnanimous and not use the contempt of court law for remarks on individual judges or on fair criticism of the judiciary. The court, however, said allegations against the Supreme Court may lead to a loss of faith in the judiciary and of confidence among other judges.

On August 19, Bhushan had moved the Supreme Court seeking to defer the next day’s proceedings to announce his punishment till a review petition was filed and considered. 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.

On August 20, the Supreme Court had rejected Bhushan’s request to adjourn the hearing on the quantum of punishment in the criminal contempt case in which he was convicted last week and transfer it to another bench. The court had given the lawyer two to three days to reconsider his statements about the court and chief justice.

Bhushan told the top court on Monday that his tweets were a constructive criticism of the judiciary and that retracting his statement or offering an insincere apology would amount to “contempt of my conscience”. “An apology cannot be a mere incantation and any apology has to, as the court has itself put it, be made sincerely,” Bhushan said. “This is especially so when I have made the statements bonafide and pleaded truths with full detail which have not been dealt with by the court.”

Following the August 14 judgement, more than 3,000 members of civil society including former judges, retired bureaucrats, journalists and lawyers criticised the Supreme Court’s order. Over 1,800 members of the bar have also criticised the Supreme Court’s decision, besides Opposition leaders, lawyers, and human rights organisations.