Prashant Bhushan moves SC seeking right of appeal against conviction for criminal contempt of court

Advocate Prashant Bhushan has filed a petition in the Supreme Court seeking a declaration that a person convicted by the Supreme Court for criminal contempt, including Bhushan, has a right to intra-court appeal, legal news website BarandBench.com has reported.

Bhushan was convicted by a three-Judge Bench of the Supreme Court in August for criminal contempt of court in relation to two of his tweets where Bhushan had criticized the Chief Justice of India and former CJIs. After he was held guilty for contempt, Bhushan was fined Re 1 as punishment for this offence.

In a fresh writ petition filed before the Supreme Court, Bhushan has prayed for a direction declaring that persons convicted by the Supreme Court have a right to an intra-court appeal to be heard by a larger and different Bench.

In addition, the petition also prays for a direction for framing of rules and guidelines providing for intra-court appeal against conviction in original criminal contempt cases.

Alternatively though, Bhushan has prayed that a review petition filed against such conviction orders may be heard by a different bench in open court.

This petition, Bhushan's plea says, has been filed seeking enforcement of fundamental rights guaranteed under Articles 14, 19 and 21 of the Constitution of India.

The petition says that the existing laws in place do not bar the prayers sought by Bhushan in this plea and in fact it is "in the spirit of the Contempt of Courts Act, 1971 to lay down such a procedure". The petition adds, "This Hon’ble Court has in the past framed special rules to deal with cases concerning death penalty and has also devised special remedy in the nature of ‘Curative Petition’ against a final judgment of the Supreme Court on certain limited grounds."

Laying down of such guidelines would bring in procedural safeguards, the petition says, when the Supreme Court is hearing and deciding on such matters in the first instance and is not acting as an appellate Court.

Criminal contempt of court also involves having an effect on the contemnor's liberty and as such, it is pertinent that such guidelines be formulated, it is averred.

"...considering the fact that there is inherent unavoidable conflict of interest involved, and the fact that liberty of the alleged contemnor is at stake, it is of utmost importance that certain basic safeguards are designed which would reduce (though not obviate) chances of arbitrary, vengeful and high handed decisions," the plea says.

Invoking Article 21, Bhushan's petition says that the right to appeal against a conviction is a substantive right available to all citizens and flows from the principle of natural justice. Right to appeal is also an absolute right under the provisions of the International Covenant on Civil and Political Rights (ICCPR).

Moreover, in contempt cases, there is a conflict of interest as well as an apprehension of inherent bias involved. The plea elaborates on this to say that this apprehension stems from the fact that in such cases, the aggrieved party, that is the court, is acting in the role of a prosecutor, witness, and judge also. The plea adds further, "As a judge the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary. Nemo potestesse simul actor et judex i.e. No one can be at once a suitor and a judge. Thus, there is a need for an intra-court appeal."

It is also argued that contempt proceedings are quasi-criminal in nature and therefore call upon for the same standard of safeguards to be applied as criminal trials do.

Highlighting the need for a different Bench to hear the appeals, the petition states that the Contempt of Courts Act provides truth as a defence and it is likely that the truth which is rejected by one Bench may be accepted by another when the whole matter is re-examined. Explaining this aspect further, the petition argues, "while the court of first instance may not accept the "truth" as alleged by the accused in a criminal contempt case, it may be accepted as factually correct by a larger or different bench. In a situation where there is no right of appeal, the right of having a fact determined as truth is lost"

Article 14 has also been invoked in this petition which underscores that a person convicted of a similar offence by a High Court has, at his disposal, a right to appeal whereas this right remains absent for a person held guilty by the Supreme Court in first instance.

On August 14, Supreme Court had found Prashant Bhushan guilty of criminal contempt of Court for two tweets criticising the judiciary. After

giving Bhushan a chance to tender an unconditional apology for his tweets and Bhushan refusing to do the same, he was subsequently fined Re 1 as punishment on August 31.