Activist-lawyer
Prashant Bhushan, on Saturday, moved the Supreme Court seeking the right to appeal against the earlier conviction in a criminal contempt case for tweets against
the judiciary to be heard by a larger and different bench.

On August
31, Bhushan was directed to deposit a Re 1 fine with the Supreme Court registry
by September 15, with failure to do so entailing a three-month jail term and
debarment from law for three years, PTI reported.

In a plea
filed through lawyer Kamini Jaiswal, Bhushan sought the declaration that a “person
convicted for criminal contempt by this court, including the petitioner herein,
would have a right to an intra-court appeal to be heard by a larger and
different bench” and thus they raise fear of inherent bias.

In the
plea, Bhushan suggested changes to procedure in order to reduce chances of “arbitrary,
vengeful and high-handed decisions” in criminal contempt cases, adding that because
the apex court is the aggrieved party in such cases as well as the “prosecutor,
the witness and the judge” and hence they raise fear of inherent bias.

The plea
said that the right to appeal is a fundamental right provided by the
Constitution of India in addition to being guaranteed under international law and
would act as “vital safeguard against wrongful conviction and would truly
enable the provision of truth as a defence”.

It also seeks
direction for framing rules and guidelines “providing for intra-court appeal
against conviction in original criminal contempt cases”.

Under the
present scheme, a person convicted for criminal contempt has the right to file
a review petition against the judgement with the plea being usually decided by
the bench in the absence of the contemnor.

Bhushan said
that the petition has been filed for the enforcement of fundamental rights guaranteed
under Article 14 (rights to equality), 19 (Freedom of speech and expression)
and 21 (right to life) of the constitution.

“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,” it said.

It said
that the plea has been filed in order to bring important procedural safeguards
when the top court considers cases of criminal contempt in original proceedings
that is those proceedings where it does not act as an appellate court.

“In such
cases, 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,” it said.

It further
noted that the right to appeal against conviction in original criminal cases is
a substantive right under Article 21 and flows from principles of natural justice.

“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.”

“As a judge
the power of the Supreme Court to convict and sentence the accused is unlimited
and arbitrary… No one can be at once a suitor and a judge. Thus, there is a
need for an intra-court appeal,” it said.

It said
that contempt proceedings are “quasi-criminal in nature, akin to criminal trial”
and similar procedural safeguards must apply.

Bhushan is
facing another contempt case of 2009. In 2009, the Supreme Court issued a
contempt case to Bhushan and Tarun Tejpalfor allegedly casting aspersions on a
number of sitting and former justices in an interview to news magazine “Tehelka”.

On Septemver
10, the court accepted Bhushan’s plea seeking assistance of Attorney General KK
Venugoal in the case.