Advocate Prashant Bhushan has filed a writ petition in the Supreme Court under Article 32 of the Constitution against the Secretary-General of the Supreme Court, seeking recall of the contempt notice issued against him on July 22 and also the order passed on July 24 listing the old contempt case taken against him in 2009 for final hearing, legal news website LiveLaw.in has reported.
The petition states that the complaint filed by one advocate Mahek Maheshwari, which sought contempt action against Bhushan, was defective as it was not accompanied with the sanction of the Attorney General as mandated by Section 15 of the Contempt of Courts Act 1971 and Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the Supreme Court 1975. Therefore, the Secretary-General erred in accepting the defective complaint, and in putting up the same before the judicial side, it says.
The plea contends that by taking suo moto cognizance on Maheshwari's complaint, the SC dispensed with the statutory requirement of taking the consent of the Attorney General or the Solicitor General, and thereby did "indirectly what the Court could not have directly".
Further, it is contended that the Secretary-General committed illegality by placing the complaint directly before the bench headed by Justice Arun Mishra, as the 'Master of the Roster' is the Chief Justice of India.
"It is therefore submitted that the actions of the Respondent (Secretary-General) amount to a usurpation of the powers of the Hon'ble Chief Justice and are therefore clearly unlawful being contrary to settled law", states the plea settled by Senior Advocate Dushyant Dave and filed through Advocate Kamini Jaiswal.
The petition states that the initiation of contempt proceedings in disregard of the established procedure amounts to violation of the right to personal liberty under Article 21 of the Constitution.
"...before a person is deprived of his personal liberty the procedure established by law must be strictly followed and must not be departed from to the disadvantage of the person affected", the plea quotes from the SC precedent Makhan Singh Torsikka vs State of Punjab.
The petition further states that the "sudden listing" of the 11-year old contempt case against him for hearing smacks of "malice in law" on the part of the Respondent.
"The sudden appearance of the matter in the cause-list released on 22.07.2020 with merely two days notice is not only inconsistent with the Handbook for Practice and Procedure in the Supreme Court which mandates giving sufficient advance notice before the proposed date of listing, but also reflects the intention of the Respondent to somehow or other convict the Petitioner for contempt," the plea adds.
It was on July 22 that the bench headed by Justice Arun Mishra issued contempt notice to Bhushan in a suo moto case taken with respect to two of his tweets on judiciary and the Chief Justice of India.
The bench, also including Justices B R Gavai and Krishna Murari, prima facie, observed that his tweets "have brought disrepute to the administration of justice and are capable of undermining the dignity and authority of the Supreme Court in general and the office of the Chief Justice of India in particular, in the eyes of general public". The case is next listed on August 5.
On July 24, the bench listed for hearing a contempt case taken against Bhushan in 2009, over his comments against Chief Justices of India in an interview given to "Tehelka" magazine. The bench said, "We need to hear the matter".
In a related development, Bhushan, along with N, Ram (former Managing Director of 'The Hindu) and Arun Shourie (former Union Minister) filed a writ petition in the SC challenging the offence of 'scandalizing the court' under Section 2(c)(i) of the Contempt of Courts Act.