A bench of Justices U U Lalit, S Ravindra Bhat and Sudhanshu Dhulia said that the issue raised in the petition filed by advocate Prashant Bhushan and others required consideration and sough response from the Centre
Bhushan, who was earlier convicted for contempt of court by the Supreme Court, sought that a person convicted by the apex court in original criminal contempt cases should be allowed to challenge the order by filing of intra-court appeal against the order.
Bhushan in his petition alleged that the right of appeal is an absolute right for a convict but it was not available in those cases in which the contempt proceedings are initiated and decided in the Supreme Court. He submitted that in such cases convicts should be allowed to file appeal against SC order in the apex court itself in an intra-court appeal and it should be heard by a different and larger bench.
“Contempt proceedings are one in which the injured party (Supreme Court) acts as the prosecutor, the witness and the judge, thereby raising fear of inherent bias. As a judge the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary. Nemo potestesse simul actor et judex i.e. No one can be at once a suitor and a judge. Thus, there is a need for an intra-court appeal,” he said in his petition.
He said that a convict, in a suo motu contempt case initiated by SC, can file a review plea but review petition is decided by the same bench in chamber proceedings without giving convict an opportunity to argue the case in open court.
“Right of Appeal is an absolute right according to Article 14(5) of International Covenant on Civil and Political Rights (ICCPR) which India has ratified and is therefore binding upon the Indian State. Under ICCPR, first appeal is a right even where trial is by the Highest Court and review is not a substitute for an appeal,” he said.
“Considering the fact that there is inherent unavoidable conflict of interest involved, and the fact that liberty of the alleged contemnor is at stake, it is of utmost importance that certain basic safeguards are designed which would reduce (though not obviate) chances of arbitrary, vengeful and high handed decisions. It is extremely important to minimise such decisions since they not only cause great injustice to the alleged contemnor, but also bring disrepute to the Court itself and are likely to be harshly judged by legal historians,” the petition said.
“That the existing Act and Rules, do not bar or prohibit the prayers as sought by the Petitioner. In fact, it is in the spirit of the Contempt of Courts Act, 1971 to lay down such a procedure. This Hon’ble Court has in the past framed special rules to deal with cases concerning death penalty and has also devised special remedy in the nature of ‘Curative Petition’ against a final judgment of the Supreme Court on certain limited grounds,” he said.