Members of the Bar at Chennai have written to Chief Justice of India Sharad J. Bobde and Supreme Court judges, expressing their anguish and disappointment over the apex court holding senior advocate Prashant Bhushan guilty of contempt.
"The judiciary undermines the very Constitution that it serves to defend, when it takes coercive action to silence views that are critical of the institution," the letter signed by 37 advocates including N.G.R.Prasad, Bader Sayeed, Sudha Ramalingam and Geetha Ramaseshan, read.
The letter pointed out how some former judges commented on "the decline in the constitutional role of the Supreme Court in checking executive excesses and protecting fundamental rights." The letter also recalled the unprecedented press meet by four judges of Supreme Court on January 12, 2018, where they claimed, "the administration of the Supreme
Court was not in order and many things which are less than desirable have happened in the last few months."
Opinion | Failing to perform as a constitutional court, by Justice (Retd.) A.P. Shah
The lawyers termed it as "alarming" that the Supreme Court has found him guilty of contempt holding that his tweets cannot be said to be “fair criticism”, are scurrilous, malicious and have a tendency to scandalise the court.
The lawyers also posed 12 questions regarding the procedure as the judgment will be a precedent for all Courts to follow in future.
The questions are:
Even if the proceedings are summary, can the conduct of the proceedings for criminal contempt be left to the vagaries of the individual judge(s) who hear the matter, particularly when the Court acts both as a prosecutor and the judge and when the life and liberty of the respondent is at stake? In order to ensure a fair and just prosecution, should not the Court, as an institution, codify the procedure and strictly adhere to the same, so that the respondent has adequate notice of how to proceed?
Should adherence to procedure and principles of natural justice not be mandatory before finding a person guilty of a crime impacting right to life guaranteed under Article 21, especially when the Supreme Court acts as both the trial Court and the final Court?
When the contemnor had raised four preliminary objections – non-furnishing of administrative orders of the Court, non-furnishing of Maheshwari’s complaint, likelihood of bias and a hearing in open Court after resumption of physical court hearings- should not the Bench hear each of these objections, pass a reasoned order on each objection and enable the respondent to prepare his defence thereafter?
When the respondent had filed only a preliminary reply and expressed a handicap in raising a proper defence, should the case not have been posted for a final reply affidavit and evidence, if any?
Does not the summary rejection of all the preliminary objections raised by the respondent and taking up the case for final hearing on the same day in haste create an oppressive atmosphere for the respondent and deny a fair hearing?
When the criminal contempt proceedings are criminal in nature and the Supreme Court Rules to Regulate Contempt Proceedings, 1975 contemplate third party affidavits, examination of witnesses and documents, should not the respondent be afforded an opportunity to lead evidence, unhampered by limitations in a virtual hearing?
Can the Court conclude that the respondent was motivated by malice without providing the respondent the opportunity of proving otherwise through evidence?
Can the Bench, in the absence of an administrative order by the Master of the Roster, suo motu take up for hearing the case involving the second tweet dated 27.06.2020 concerning the role of the Supreme Court and the last four CJIs?
When the offence alleged is one of criminal contempt, should not specific charges be framed and the contemnor afforded an adequate opportunity to respond to each of those charges?
Though the Court can take suo motu cognisance of any publication, can the Registrar General ignore the Supreme Court Rules and take on record a defective petition filed without the Attorney General’s sanction? It is such action of the Registrar General, which is in breach of the Court’s Rules that has resulted in the instant case.
When the contemnor has referred to an incident of impropriety by the presiding Judge, Hon’ble Mr.Justice Arun Mishra (para 92 of the reply affidavit), would it not have been appropriate to pass a reasoned order for rejecting the request to refer the matter to another Bench, lest it appear that there is an element of personal bias, especially when the respondent through a formal letter to the Hon’ble Chief Justice of India, also made the same request.
Should not the view of the Attorney General be ascertained, after notice had been issued to him and he was present in Court?
Click here to read/download the Letter from members of Chennai Bar.
