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Justice Arun Mishra order violates Justice Arun Mishra Bench judgment, Prashant Bhushan

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Murali Krishnan | Bar & Bench  | February 25 201

 

In the contempt application filed by Attorney General KK Venugopal and Central government, advocate Prashant Bhushan has filed an application praying for the recall of the Supreme Court order by which notice was issued to him.

 

The order was by a Bench presided by Justice Arun Mishra. Interestingly, the plea by Bhushan places reliance on a judgment passed by a Constitution Bench of Supreme Court of which Justice Arun Mishra himself was a member.

 

The recall application contends that a contempt petition cannot be filed as an interim application in a pending writ petition. It is an independent cause of action and can be filed only as a separate petition.

 

Filing it as an interim application, mentioning it before the Bench of Justices Arun Mishra instead of CJI and getting it listed along with the main matter amounts to circumventing the established procedure and law, Bhushan has contended.

 

“The applicant raises very serious Constitutional questions including the propriety of filing the present petition as an interlocutory petition in a pending writ petition and having filed the petition, mentioning it before the Bench presided by Justice Arum Mishra and Justice Navin Sinha intsead of mentioning it before CJI for listing, in complete contravention of the law declared by the Supreme Court in Shanti Bhushan v. supreme Court and CJAR v. UOI”

 

The acts amount to a violation of right to life of the applicant under Article 21.

 

“The applicant is constrained to move the present application since the filing of the contempt petition under a wrong cause title mentioning the same not before the CJI, but before the Bench not even having criminal contempt jurisdiction, the order on mentioning Feb 4 listing the petition on Feb 6 and tagging it along with Writ Petition (Civil) 54/ 2019 and subsequent order thereon issuing notice on Feb 6 collectively and individually violate the right to life guaranteed to the applicant under Article 21 of the Constitution.”

 

Background

Two separate interim applications for contempt of court were filed against Bhushan – one by Attorney General KK Venugopal and other by the Union of India.

 

The basis for contempt applications were the Tweets by Bhushan, who was appearing for the petitioner in the case on challenging the appointment of M Nagehswar Rao as interim Director of CBI.  Bhushan had tweeted that he spoke to the Leader of Opposition Mallikarjun Kharge, who denied any discussion having taken place in the High-Powered committee regarding the appointment of Rao. Thus, the government appeared to have misled the court, Bhushan stated in his tweet.

 

The contempt petitions were mentioned before Justice Arun Mishra on February 4 and they were listed along with the main matter before Justice Arun Mishra J on February 6..

 

The Court issued notice to Bhushan on February 6.

 

Criminal Contempt petition cannot be filed as Is

 

In the application filed through advocate Kamini Jaiswal, Bhushan has contended that a criminal contempt petition cannot be filed as an IA in a pending writ petition. He has placed reliance on Rule 5 of rules to regulate proceedings for contempt of Supreme Court, 1975 and on Handbook on Practice and Procedure

 

He has contended that as per the above Rules, criminal contempt petition has to be registered independently and cannot be filed as an IA in a pending matter.

 

Matter can be mentioned only before CJI

Interestingly, reliance has been placed on the judgment of Constitution Bench of the Supreme Court in Campaign for Judicial Accountability and Reforms v. Union of India,which also had Justice Arun Mishra as part of the Bench

 

The said judgment set aside an order of a two-judge Bench passed by Justice Jasti Chelameswar referring another case of Kamini Jaiswal to a Constitution Bench

 

In the CJAR judgment, the Court had held that the Chief Justice of India is the master of roster and only he has the prerogative to constitute Benches or allocate matters.

 

The petition by Bhushan contends that mentioning it before Arun Mishra led Bench was contrary to the said judgment. Despite the law being well known, an attempt has been made to circumvent the.

Roster – Justice Arun Mishra Bench does not have contempt jurisdiction

 

The petitioner has placed reliance on th

e roster of the Supreme Court prevalent at the time when the contempt application was filed by the AG and the Central government.

 

As per the same, the jurisdiction to hear contempt cases was with three Benches – the Benches presided by CJI Ranjan Gogoi, Justice AK Sikri and Justice UU Lalit.

 

Hence, the petitioners have contended that the order passed by Justices Arun Mishra and Navin Sinha on February 4 listing the IA before themselves is liable to be set aside.

 

The contempt petition and the manner in which the same have been pursued seek to condemn the applicant so as to take away his personal liberty without following the due procedure of law, submits Bhushan.

 

Bhushan has, therefore, prayed for recalling the orders of February 4, 2019 and February 6, 2019 on the ground that the same were passed by a Bench which was ‘Coram Non Judice’.

 

He has also prayed for dismissal of the criminal contempt petition.tg

 

The article was initially uploaded in Bar & Bench. It can be read here