Advocate Prashant Bhushan, who is facing charges of criminal contempt over his remarks in an interview to Tehelka magazine in 2009, has said that allegations of corruption in judiciary must fall within the ambit of free speech, Live Law reported on Sunday. Last week, he was held guilty in another contempt case involving his tweets against the judiciary.
He made the remarks in a written submission before a Supreme Court bench headed by Justice Arun Mishra in a suo motu contempt case for claiming in 2009 that half of the previous 16 chief justices were corrupt. Last week, the court had decided to hold a detailed hearing on whether to accept Bhushan’s explanation. The matter will be heard on Monday.
“Without the allegations (of corruption) against a judge being documented and investigated in the manner further provided under the Judges Inquiry Act, to establish the veracity, the allegation per se cannot amount to contempt in so far as it would nullify the constitutional provisions and statutory procedures for impeachment of a judge on grounds of misbehavior including corruption,” Bhushan said.
The advocate said corruption in the judiciary does not just mean monetary gratification alone, but includes other offences such as fraud, abuse of discretion and favouritism. “Corruption in public life has a wide and expansive definition,” the submission said. “Corruption is not restricted to pecuniary gratification alone but various instruments identify its particular forms such as bribery, embezzlement, theft, fraud, extortion, abuse of discretion, favouritism, nepotism, clientelism, conduct creating or exploiting conflicting interests.”
The lawyer also stated that the current internal procedure to deal with corruption in judiciary is absolutely “inadequate” and “ineffective”, adding that the impeachment procedure is too complex and political. “Therefore, at present there is no effective procedure to deal with corruption in the judiciary other than the public and particularly through lawyers who know from experience the extent of corruption in the judiciary or vis a vis a particular judge,” the submission added. “Any exercise of alleging corruption in the public interest must therefore squarely lie within the domain of freedom of speech under Article 19 (1) (a) and the duty of lawyers in particular to the institution of the judiciary.”
Bhushan pointed out that truth is a valid legal defence in contempt cases and one cannot be held guilty for contempt “per se” if he invokes truth as a defence. To hold the person guilty, the court will have to necessarily return a finding that the defense is not in public interest or request for invoking such defence is not bona-fide, he added.
The lawyer recalled that various judgements, reports, and former Supreme Court judges have discussed corruption in the judiciary and referred to observations on the subject in the 1964 Parliamentary report of the Committee on Prevention of Corruption.
On August 14, the same Supreme Court bench had convicted Bhushan of criminal contempt for his tweets posted in June. Bhushan’s first tweet commented about undeclared emergency and the role of Supreme Court and last four chief justices of India. Another tweet was about Chief Justice SA Bobde trying out a Harley Davidson superbike in his hometown Nagpur.
Opposition leaders, lawyers, human rights organisations had criticised the top court’s verdict, saying it is “alarming”, “blow to the rule of law” and a “dark day for the Indian democracy”. The hearing on the quantum of punishment will be held on August 20.
Limited-time offer: Big stories, small price. Keep independent media alive. Become a Scroll member today!
Our journalism is for everyone. But you can get special privileges by buying an annual Scroll Membership. Sign up today!