[8/16, 10:59] Mhc Advt P Vs Girithirar: To,
Mr. Dushyant Dave, Senior Advocate,
Supreme Court Bar Association
We the undersigned lawyers want to register our protest against the manner in which the criminal contempt cases were taken up against Mr Prashant Bhushan by the Hon’ble Supreme Court over the last month.
First, the Supreme Court initiated suo moto contempt proceedings in July 2020 against Mr Bhushan for his two recent tweets (of 27 & 29 June), and listed it along with a criminal petition filed by a private citizen, Mr. Mahek Maheshwari. In these proceedings, Mr Bhushan had filed a preliminary reply affidavit seeking more time to put on record a more detailed affidavit defending himself. However, he was denied this opportunity to effectively defend himself, and the matter was hurriedly taken up against him and finally decided. The Mahek Maheshwari petition was also listed without obtaining the consent of the Learned Attorney General as mandated. Although the Learned Attorney General was issued notice in the matter, his oral views in the matter were never sought by the Court before finally deciding it. Mr. Bhushan has now been held guilty of criminal contempt in this matter.
Second, an eleven year old contempt case against Mr Prashant Bhushan was suddenly taken up out of turn and hurriedly listed for a final hearing. This was done in total disregard of the current situation created by the Covid 19 pandemic that has hampered the work of the courts, making normal physical court hearings impossible. Senior lawyers who were representing Mr Bhushan in these proceedings repeatedly requested the court to defer the hearing till the resumption of physical Court, since they felt that a virtual hearing was not very conducive for such an involved matter, with voluminous court records. Moreover, there was no apparent urgency to the matter, since it had already been pending for eleven years. These requests were disregarded and the proceedings in this old case, taken out of the cold storage, were instead expedited. Moreover, the procedural objections to an expedited hearing raised by Mr Bhushan’s counsel were not only glossed over by the court but summarily dismissed without giving any reasons.
Under the Indian Constitution, every citizen of India is guaranteed a right to a fair trial/ representation/hearing, and must be given a fair opportunity to be heard before being condemned in any proceedings. The cherry picking of cases especially in these pandemic times may give a negative impression about the Court. As the old adage goes, justice must also seen to be done. If the highest court of the country that is the repository of the best of our constitutional values does not follow due process in a case where it is also a party and, fails to maintain fair play or instil confidence, the adverse consequences on rule of law will be irreversible.
The majesty of the Supreme Court of India is not affected so much by criticism, as it is by its own response to it. Having recognised the right to freedom of speech and expression on several recent occasions, the Hon’ble Court must show the same sensitivity and circumspection before issuing criminal contempt in a case that has a bearing on its own tolerance to speech. Invoking of the ‘iron hand’ by the Constitutional Court of India to respond to criticism in speech, should be reviewed.
We urge the SCBA to take up the issue with regard to proper hearing, and also share a link of the virtual hearing on sentence on 20 August, which must symbolically be held in ‘open court’, and those advocates who wish to do so, may be allowed to be present and seen on-screen.
[8/16, 10:59] Mhc Advt P Vs Girithirar: PVS Giridhar