Constitution Bench Should Hear Prashant Bhushan Contempt Case: Kurian Joseph

New Delhi: Former Supreme Court judge Justice Kurian Joseph on Wednesday came out in support of lawyer Prashant Bhushan and said contempt cases against him raised substantial questions of law which should be heard by a constitution bench. 

Justice Joseph also said that a person convicted by the top court in a suo motu case should get an opportunity for an intra-court appeal.

“Under Article 145 (3) of the Constitution of India, there shall be a quorum of minimum five Judges for deciding any case involving substantial questions of law as to the interpretation of the Constitution. 

“In both the suo motu contempt cases, in view of the substantial questions of law on the interpretation of the Constitution of India and having serious repercussions on the fundamental rights, the matters require to be heard by a Constitution Bench,” Joseph said in a statement.

The former judge said a three-judge bench of the Supreme Court has decided to hear a few serious questions on the scope and extent of the contempt of Court. 

“Certainly, there are more graver issues, involving substantial questions of law as to the interpretation of the Constitution of India. 

“For example, whether a person convicted by the Supreme Court of India in a suo motu case should get an opportunity for an intra-court appeal since in all other situations of conviction in criminal matters, the convicted person is entitled to have a second opportunity by way of an appeal,” he said.

Joseph said under Section 19 of the Contempt of Courts Act, 1971, an intra-court appeal is provided where the order is passed by the single Judge of the High Court and in case it is by the Division Bench, appeal lies to the Supreme Court.

“This safeguard is provided probably to avoid even the remotest possibility of miscarriage of justice. Should there not be such a safeguard in the other Constitutional Court, the Supreme Court of India also, when there is a conviction in a suo-motu criminal contempt case?

“Fiat justitia ruat caelum (let justice be done though the heavens fall) is the fundamental basis of administration of justice by Courts. But, if justice is not done or if there is miscarriage of justice, heavens will certainly fall. The Supreme Court of India should not let it happen,” he said.

Referring to the contempt proceedings against Justice C S Karnan (then sitting high court judge), Justice Joseph said it was the collective wisdom of the full court of the Supreme Court that the matter should be heard at least by a bench consisting of the seven senior-most Judges. 

“The present contempt cases are not cases involving just one or two individuals; but larger issues pertaining to the concept and jurisprudence of the Country regarding justice itself,” Justice Joseph, who retired on November 29, 2019, said.

The former judge said important cases like these need to be heard elaborately in a physical hearing where only there is scope for a broader discussion and wider participation.

“Men may come and men may go, but the Supreme Court of India should remain forever as the court of supreme justice,” he said.

The apex court is seized of two contempt cases against Bhushan.

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

In the second case, the apex court on August 14, had held Bhushan guilty of criminal contempt for his two derogatory tweets against the judiciary saying they cannot be said to be a fair criticism of the functioning of the judiciary made in the public interest.

Later, the apex court said it would consider certain larger questions in the 2009 contempt case against Bhushan and Tejpal as the issue before it has wide ramifications.