Prashant Bhushan files review petition in SC, says Justice Arun Mishra shouldn’t have heard the case

Advocate Prashant Bhushan has filed a review petition against the Supreme Court's August 14 judgment holding him guilty of contempt of court for his tweets criticising the judiciary, legal news website BarandBench.com has reported.

A three-Judge Bench of the Supreme Court had held Bhushan guilty of contempt and subsequently imposed a token punishment of Rs 1 fine on him. Today, Bhushan made a deposit of this fine while making a statement before the press that his compliance with the court's order to deposit the fine does not mean that he accepts this punishment.

Now, Bhushan has filed a review petition assailing the August 14 judgment and calling for an open court hearing for the same. Bhushan's review petition states that the judgment sought to be reviewed contains many errors apparent on the face of the record - of both law and fact. As such, Order 47, Rule 1 read with Rule 4 of the Supreme Court Rules, 2013 would make this petition maintainable.

Bhushan also argues that while conviction and sentencing are "separate and independent stages of the criminal process", he has the right to seek review of both judgments passed against him - one of conviction and the other on sentencing.

"Nothing in the constitutional or statutory law as it applies to this Hon’ble Court’s power of review limits this right," the petition adds.

Asking for an open court hearing of the review petition, Bhushan states, "In view of the sui generis nature of the proceedings under Article 129 for criminal contempt which is not committed ex facie curiae, a hearing in open court ought to be granted both on the question of admitting the present petition as well as on its merits." Citing the Supreme Court's 1995 judgment in the case of In re Vinay Chandra Mishra, the petition says that the sui generis nature of the suo motu proceedings of the Supreme Court has been affirmed.

Summarising the features that emanate from this judgment, the petition says,

• The Supreme Court sits as a Judge, investigator and prosecuter to determine guilt of alleged contemnor. The non-severance of the Court's adjudicating process from its prosecution, the fundamental precepts of the rule of law and natural justice in adversarial legal systems are contravened.
• A summary procedure is adopted by Supreme Court effectively dispensing with rights of accused persons under Articles 20 to 22.
• The definition of "scandalising the court" has "unspecified ingredients and unspecified boundaries" and remains extraordinarily vague.
• Supreme Court proceeds on very broad discretion in such cases while acting under Article 129.
• No appeal lies against the judgment delivered by the Supreme Court.
• Such proceedings involve maintaining public confidence.

In this broad backdrop, Bhushan has not only sought review of the judgment, but has also submitted that Justice Arun Mishra, who headed the Bench that handed convicted him, should not have heard this case at all.

Claiming that Justice Mishra may have had a bias against Bhushan, the petition says, "...on several occasions Hon’ble Justice Arun Mishra has orally accused the Review Petitioner of committing contempt of court when he had merely mentioned that it may be inappropriate for a particular judge to hear a particular case in circumstances where conflict of interest was involved."

Moreover, on a number of occasions, Supreme Court benches of which Justice Mishra was a part have refused to grant relief in petitions filed by organisations Bhushan is part of. To name a few such instances, the petition points at the rejection of a court-monitored investigation in relation to the Sahara-Birla payments, and the listing of the case concerning Prasad Medical trust, among many others.

The instances listed in the petition "raise a reasonable apprehension" that Bhushan did not recieve a fair and impartial hearing, the plea states.

Further, Bhushan says that the Supreme Court's powers under Article 129 are also subject to due process requirements that flow from the Constitution. These powers, like any others, are not unregulated or unrestricted. The same has been recognized by the Apex Court in many of its judgments, the plea points out.

It is stressed that the petition against Bhushan was not maintainable in the first place in the absence of the Attorney General's consent, which is a pre-requisite in cases of criminal contempt. It adds, "The role of the Attorney General is absolutely essential in a proceeding of Suo Motu Criminal Contempt as the Attorney General is the only independent mind that can throw light on if there is any contempt at all, the court being the aggrieved party as also the adjudicator and the alleged contemnor being the defendant."

As such, the fundamental rules of natural justice also stand violated in the judgment, given that the mandatory requirements under the Act and the complementary Rules were contravened, the plea states.

The plea also makes a case, yet again, that the tweets in question were not prima facie contemptuous and that Bhushan's defence of truth was not considered. The Supreme Court, through this judgment, has made "any and all criticism of the institutional role of the Supreme Court an offence of criminal contempt".