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Advocate Prashant Bhushan has moved the Supreme Court challenging the action of its Secretary-General to list the contempt petition filed against him on the judicial side, without the consent of the Attorney General.
The petition has been filed In the wake of the Supreme Court issuing notice to Bhushan in contempt of court proceedings initiated against him, based on a plea moved by one Mahek Maheshwari.
Maheshwari's petition was defective to the extent that it was lacking consent from the Attorney General or Solicitor General, as is required under the law for initiating contempt of court proceedings.
On the administrative side, upon receiving this petition from Maheshwari, the Secretary General ought to have returned the same to Maheshwari for want of consent from the law officers in line with the mandate of 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, Bhushan's petition says.
It was based on this "defective" petition filed by Maheshwari that the Supreme Court Bench of Justices Arun Mishra, BR Gavai, and Krishna Murari issued notice to Bhushan as well as Twitter in the suo motu contempt case.
In the order passed on July 22, the Court took suo motu cognizance of Bhushan's tweets. In respone to this, the petition states,
"It is most respectfully submitted that this Hon’ble Court erred in taking suo motu cognizance of a petition that was defective to begin with and therefore, what could not have been done directly was done indirectly. It is submitted that by taking suo motu cognizance of Shri Maheshwari’s petition, this Hon’ble Court dispensed with the requirement of taking consent of the Attorney General or the Solicitor General which is the express and non-derogable mandate of law."
Petition filed in Supreme Court
As such, Bhushan is praying for this order passed by the Court to be recalled on the grounds that the notice "constitute an infringement of the Petitioner’s right to life and liberty under Article 21 of the Constitution without following the procedure established by law."
Moreover, the Secretary General's placing of the contempt petition filed by Maheshwari before the Bench headed by Justice Arun Mishra was also in violation of the well-settled principle that it is the Chief Justice who is the master of the roster and assigns matters to the benches, the plea states.
This action of the Secretary General amounts to "usurping" of power of the master of the roster and goes against the precedents laid down by the Supreme Court in this regard, the plea says.
"...actions of the Respondent amount to a usurpation of the powers of the Hon’ble Chief Justice and are therefore clearly unlawful being contrary to settled law as well as the Supreme Court Rules 2013."
Moreover, the plea questions the sudden listing of the 11-year-old contempt matter pending against Bhushan in light of recent developments.
The "sudden appearance" of this matter in the causelist with a mere two-day notice is inconsistent with the Handbook for Practice & Procedure in the Supreme Court, the petition states. Bhushan alleges that this act reflects the intention of the Secretary General to secure a conviction for Bhushan for contempt.
"The sudden appearance of the matter in the cause –list released on 21.07.2020 with merely two days notice is not only inconsistent with the Handbook for Practice & 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 the other convict the Petitioner for contempt."
Apart from praying for the actions of the Secretary General to be held unconstitutional and illegal, Bhushan also prays for the order passed on July 22 issuing notice in the contempt plea to be recalled by the Supreme Court.
The petition is filed by Advocate Kamini Jaiswal and settled by Senior Advocate Dushyant Dave.
The contempt matter is listed for hearing before the Apex Court on August 5, on which date Bhushan is directed to appear in person.
The Supreme Court's initiation of suo motu contempt proceedings recently prompted as many as 10 retired judges of the Supreme Court and High Courts, apart from over 140 signatories from the legal fraternity and civil society, to issue a solidarity statement in support of Bhushan. The signatories to this statement have urged the Supreme Court to reconsider its decision.
In a separate petition filed by Bhushan along with Senior Journalists N Ram and Arun Shourie, the constitutional validity of the criminal contempt provisions have been challeged for being "vague, arbitrary and in violation of Articles 19 and 14."