Contempt of Court v. Freedom of Speech

In ORIGINAL APPELLATE JURISDICTION ,CONTEMPT PETITION (CRL.) NO.10 OF 2009 IN INTERLOCUTORY APPLICATION NOS.1324, 1474, 2134 OF 2007 IN WRIT PETITION (C) NO.202 OF 1995, between Amicus Curiae and Prashant Bhushan & Anr.; Amicus Curiae, Mr. Harish N. Salve, learned Senior Advocate, drew the attention of the Hon’ble Supreme Court of India towards certain statements made by Shri Prashant Bhushan, Senior Advocate, which was reported in Tehelka magazine, of which Shri Tarun J. Tejpal,was the Editor-in-Chief. The learned Amicus Curiae also drew the attention of the Court to certain statements which had been made by Shri Prashant Bhushan, Senior Advocate, in an interview given to Ms. Shoma Chaudhury, wherein various statements were made alleging corruption in the judiciary and, in particular, the higher judiciary, without any material in support thereof. In the interview Shri Prasant Bhusan went on to say that although he did not have any proof for his allegations, half of the last 16 Chief Justices were corrupt. He also made a serious imputation against the Hon'ble the Chief Justice of India, Justice S.H. Kapadia, as His Lordship then was, alleging misdemeanor with regard to the hearing of a matter involving a Company known as Sterlite, in which Justice Kapadia had certain shares. The Hon’ble Supreme Court requested Mr. Harish N.Salve, learned Senior Advocate, to assist the Court as Amicus Curiae in the matter whether on the basis of the prayers made in the application, this Court should take suo motu cognizance of the alleged contempt said to have been committed by the Senior Advocate and Chief-Editor in the application which was numbered as Contempt Petition (Crl.) No.10 of 2009. The matter was, thereafter, heard at length by the Apex Court on the question of maintainability of the contempt proceedings and also on the question as to whether this Court should take suo motu cognizance and proceed accordingly. Mr. Ram Jethmalani, learned Senior Advocate appearing for Mr. Prashant Bhushan, Advocate, submitted that the contempt proceeding was not maintainable not only on account of the provisions of Section 15 of the Contempt of Courts Act, 1971, but also in view of the 1975 Supreme Court Rules regarding proceedings for Contempt. He submitted that the report published in Issue No.35 of Volume 6 of Tehelka magazine dated 5th September, 2009, which comprised the contents of the interview given by Mr. Prashant Bhushan to the Tehelka magazine, had been placed before the Court on 6th November, 2009 and upon hearing the counsel present, the Court directed the matter to be taken on board and directed notice to issue. It was argued by Mr. Jethmalani that in relation to matters involving contempt of the Supreme Court, Rules have been framed by the Supreme Court itself under powers vested in it under Section 23 of the Contempt of Courts Act, 1971, read with Article 145 of the Constitution of India. The said Rules described as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, laid down the procedure to be followed in matters relating to taking of cognizance of criminal contempt of the Supreme Court under Section 15 of the Contempt of Courts Act, 1971. He further submitted that Rule 3 of the aforesaid Rules enables the Court to take action in a case of contempt other than the contempt committed in the face of the Court and provides as follows : "3. In case of contempt other than the contempt referred to in rule 2, the Court may take action: - (a) suo motu, or (b) on a petition made by Attorney General, or Solicitor General, or (c) on a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney General or the Solicitor General." He also submitted that the order passed on 6th November, 2009 was not on suo motu cognizance taken by this Court, nor on a petition made by the Attorney General for India or Solicitor General of India and must, therefore, have been made under Rule 3(c) on a petition made by Mr. Harish N. Salve, Senior Advocate, in which case, the same ought not to have been entertained without the consent in writing of the Attorney General or Solicitor General. Mr. Jethmalani submitted that in that view of the matter, the contempt proceedings were without jurisdiction and could not be proceeded with. Mr. Jethmalani also urged that even Rule 6 of the aforesaid Rules had not been followed, as notices have not been issued to the respondents in Form 1, as prescribed and the proceedings were, therefore, liable to be discontinued on such ground as well.In support of his aforesaid submissions, Mr. Jethmalani referred to and relied upon the case of P.N. Duda vs. P. Shiv Shanker & Ors. [(1988) 3 SCC 167], in which the provisions of Section 15(1)(a) and (b) of the Contempt of Courts Act, 1971, read with Explanation (a) and Rule 3(a), (b) and (c) of the Contempt of Supreme Court Rules, 1975, had been considered in paragraphs 53 and 54 of the judgment. It was pointed out that a direction had been given by this Court that if any information was lodged even in the form of a petition inviting this Court to take action under the Contempt of Courts Act or Article 215 of the Constitution, where the informant is not one of the persons named in Section 15 of the said Act, it should not be styled as a petition and should not be placed for admission on the judicial side. On the other hand, such a petition was required to be placed before the Chief Justice for orders in Chambers and the Chief Justice could decide, either by himself or in consultation with the other judges of the Court, whether to take any cognizance of the information.Mr. Jethmalani also referred the case of Bal Thackrey vs. Harish Pimpalkhute & Ors. [(2005) 1 SCC 254], wherein in the absence of the consent of the Advocate General in respect of a contempt petition filed by a private party under Section 15 of the Contempt of Courts Act, without a prayer for taking suo motu action of contempt, was held to be not maintainable. Mr. Jethmalani urged that the power vested in the High Courts and the Supreme Court under the Contempt of Courts Act, 1971, was a regulatory measure imposing a fetter on a citizen's fundamental right to freedom of speech and would have to be invoked and exercised with utmost caution so as not to infringe upon such fundamental right. The Hon’ble Apex Court while rejecting the above said contents raised by Shri Jethmalani stated that Shri Prashant Bhushan, Senior Advocate, in an interview given to the Tehelka magazine deliberately aimed at tarnishing the image of the judiciary as a whole, and, in particular, a sitting Judge of the Supreme Court, in the eyes of the general public without any foundation or basis therefore. By publishing the said interview, the Chief Editor was also responsible for lowering the dignity of this Court in the eyes of all stake holders in the justice delivery system. Prima facie, a case for issuance of notice having been made out, the Hon'ble Chief Justice of India directed issuance of notice to the Respondents to show cause in regard to the allegations contained in the application filed by the learned Amicus Curiae. It was further stated by the Apex Court that the error committed by the Registry of the Supreme Court in placing the matter on the judicial side instead of placing the same before the Hon'ble Chief Justice of India on the administrative side, is an administrative lapse which does not reduce the gravity of the allegations.