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Prashant Bhushan says ‘defective’ contempt petition ‘unilaterally’ listed by Supreme Court official

Secretary General action amounts to ‘usurpation’ of CJI’s role as ‘master of the roster’, he says in petition

Noted civil rights lawyer Prashant Bhushan has approached the Supreme Court for a declaration that a “defective contempt petition” against him was “unilaterally” listed by the court’s Secretary General for judicial hearing before a Bench led by Justice Arun Mishra.

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Mr. Bhushan said the action of the Secretary General was “illegal” and amounted to “usurpation” of the role of the Chief Justice of India as ‘master of the roster’.

“It has been categorically held that the 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 petition, filed by advocate Kamini Jaiswal and settled by senior advocate Dushyant Dave, contended.

Two tweets

The “defective” contempt petition was filed by Mahek Maheshwari against Mr. Bhushan’s tweet on a photograph of Chief Justice of India Sharad A. Bobde on a motorbike. This tweet and another one by him about the Supreme Court led to Justice Mishra Bench initiating suo motu contempt proceedings against him on July 22. Two days later, the same Bench resumed hearings in a 2009 contempt case. This case concerned Mr. Bhushan’s remarks about the judiciary in an interview with Tehelka magazine.

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Mr. Bhushan wants both these orders to be recalled, or, in the alternative, be heard as and when physical court hearings resume.

In his petition, Mr. Bhushan contended that the Supreme Court Rules 2013 required the defective contempt petition to be returned to Maheshwari. Instead, the Secretary General placed the case before a Bench of Justices Mishra, B.R. Gavai and Krishna Murari for hearing. The Secretary General’s action was “unconstitutional, illegal, void and non est”.

He said the contempt plea filed by Maheshwari was “defective” for it did not have the prior consent of the Attorney General or Solicitor General as mandated under Section 15 of the Contempt of Courts Act 1971 and Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975.

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Not only has the Secretary General acted in violation of the Contempt of Courts Act, but his actions have infringed on Mr. Bhushan’s fundamental right to dignity and liberty under Article 21 of the Constitution, the petition argued.

It said: “the court erred in taking suo motu cognisance of a petition that was defective to begin with and therefore, what could not have been done directly was done indirectly… by taking suo motu cognisance of Mr. Maheshwari’s petition, this 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”.

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