SC to refer 2009 contempt case against Prashant Bhushan, Tarun Tejpal to another bench

New Delhi: The Supreme Court on Tuesday decided to refer to another bench the 2009 contempt case against Prashant Bhushan and journalist Tarun Tejpal to deal with certain larger questions related to freedom of speech and levelling of corruption charges against the judiciary.

The apex court had issued contempt notices to Bhushan and Tejpal for allegedly casting aspersions on some sitting and former top court judges in an interview to news magazine 'Tehelka' in November 2009. Tejpal was the editor of the magazine.

A bench headed by Justice Arun Mishra was told by senior advocate Rajeev Dhavan, appearing for Bhushan, that 10 questions of constitutional importance have been raised by him and they needed to be dealt by a Constitution bench.

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The bench, which also comprised Justices BR Gavai and Krishna Murari, did not undertake the hearing due to paucity of time as Justice Mishra is demitting office on 2 September.

"There is paucity of time otherwise we would have heard the senior counsel (Dhavan) with respect to the questions which have been proposed. However, since the matter is pending for the last 10 years, as prayed for, we fix the date for hearing in the month of September, 2020. Let the matter be listed on 10 September, before an appropriate Bench as may deem fit by Hon'ble the Chief Justice of India," the bench noted in the order.

"These are broader issues which need to be deliberated at length. We can have some amicus and it can be adjudicated by an appropriate bench," said the bench.

Justice Mishra, who is retiring on 2 September, said the matter will need time and added "let us leave this to an appropriate bench" .

The court did not agree to the submissions of Dhavan that it should issue notice to Attorney General KK Venugopal seeking his assistance and opinion to deal with the issues raised and said that 'it is best left to the appropriate Bench" which will be set up by the Chief Justice of India SA Bobde.

Dhavan said the questions raised by Bhushan included the issue whether bona fide opinions of corruption also constitute contempt of court and "whether it is enough to show bona fide of opinion or it is necessary for the person to prove the allegation of corruption."

They also included whether a complainant is barred from discussing in public domain the contents of his complaint if an in-house inquiry is started, among others, he said.

On 17 August, the top court had framed certain questions and asked senior advocates Dhavan, appearing for Bhushan, Shanti Bhushan and Kapil Sibal, to address it on three issues — whether such statements about corruption against judges or judiciary can be made, in what circumstances they can be made and what is the procedure to be adopted with respect to sitting and retired judges.

Then Bhushan, through his lawyer Kamini Jaiswal, filed 10 questions of his own and sought adjudication by a Constitution bench.

"Whether the expression of a bona fide opinion about the extent of corruption in any section of the judiciary would amount to contempt of court," Bhushan's plea said.

"If the answer to the question is in the affirmative, whether the person who expresses such an opinion about the extent of corruption in a section of judiciary is obliged to prove that his opinion is correct or whether it is enough to show that he bona fide held that opinion," the second question read.

He also gave eight other questions related to freedom of speech and expression and the width and scope of contempt powers.

The top court had earlier said that it would consider larger questions in 2009 contempt case against Bhushan and Tejpal on 25 August.

In response to the 2009 contempt case, Bhushan had told the apex court that making corruption charges against the judges would not amount to contempt of court and mere utterance of corruption charge could not be contempt of court.

The top court, meanwhile, concluded the hearing in the another contempt case against Bhushan in which he has been convicted for his two tweets against the judiciary and has refused to apologise.