Prashant Bhushan moves SC, seeks recall of order issuing contempt notice against him

Activist-lawyer Prashant Bhushan has moved the Supreme Court seeking recall of its July 22 order by which notice was issued against him in a contempt proceeding initiated for his alleged contemptuous tweets against the judiciary.

In his plea, Bhushan has sought a direction to declare that the apex court's secretary-general has allegedly "acted unconstitutionally and illegally" in accepting a "defective contempt petition" filed against him, which was initially placed on the administrative side and later on the judicial side.

Besides this, Bhushan has sought stay on the July 22 order and also on another order for listing on August 4 the pending separate contempt case filed against him in 2009.

He has said in his plea that the top court should "desist" from hearing both these matters by video-conferencing and list them when the physical hearing resumes.

On July 22, the apex court had issued notice to Bhushan in the contempt proceeding initiated against him for his alleged tweets, saying his statements prima facie "brought the administration of justice in disrepute".

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Later, on July 24, the court had said it would hear on August 4 the 2009 contempt case against Bhushan and journalist Tarun Tejpal for allegedly casting aspersions on some sitting and former top court judges in an interview to a news magazine. Tejpal was the then editor of the magazine.

In his plea, Bhushan has alleged that the contempt petition filed against him by one Mahek Maheshwari regarding a tweet posted by him "was defective" as consent of either the Attorney General or the Solicitor General was not obtained.

"It is most respectfully submitted that this 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," the plea said.

It alleged that by taking cognizance on Maheshwari's petition, the court has "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."

While referring to the Supreme Court Rules 2013, the plea said that the "defective contempt petition" ought to have been returned to Maheshwari.

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"However, it appears from the order dated July 22, 2020 ….. the respondent (secretary-general), in complete disregard for the mandate of law, proceeded to entertain the said petition on the administrative side and thereafter placed the matter on the judicial side before the bench comprising Justices Arun Mishra, B R Gavai and Krishna Murari on July 22," the plea said.

Bhushan has claimed in his plea that secretary general's action in "unilaterally" placing the contempt petition before a bench presided over by Justice Mishra was "contrary to the settled law" as laid down by the top court which had categorically held that "Chief Justice of India is the master of the roster and enjoys the exclusive prerogative to constitute benches and assign matters to benches."

"It is submitted that the actions of the respondent (secretary-general) amount to a usurpation of the powers of the Chief Justice and are therefore clearly unlawful being contrary to settled law as well as the Supreme Court Rules 2013," the plea claimed.

It alleged that actions of secretary-general leading to initiation of contempt proceedings against Bhushan as well as the notice as per which he has been directed to appear in person before the court on August 5 "constitute an infringement of the petitioner's right to life and liberty under Article 21 of the Constitution."