NEW DELHI: activist lawyer Prashant Bhushan, convicted and awarded a rupee fine for his derogatory tweets against the judiciary, on Saturday the Supreme Court requested that the right of appeal against convictions in original criminal contempt cases be heard by a larger and different court.
On August 31, Bhushan was ordered to deposit the fine in the Supreme Court register by September 15, and failure to comply would carry a three-month jail term and exclusion from the practice of law for three years.
In a new statement filed through an attorney Kamini jaiswal, has requested a declaration that “a person convicted of criminal contempt by this court, including the petitioner in this document, would be entitled to an intra-judicial appeal to be heard by a larger and different court.”
Bhushan, in the guilty plea, suggested procedural changes to reduce the chances of “arbitrary, retaliatory and overbearing decisions” in criminal contempt cases, saying that in such cases the highest court is the aggrieved party, the “prosecutor, the witness and judge “and thus increase the fear of inherent prejudice.
The petition said that the right of appeal is a fundamental right guaranteed by the Constitution and also guaranteed by international law and that it would act as a “vital safeguard against wrongful conviction and would truly allow the provision of the truth as a defense.”
The declaration, in which the Ministry of Law and Justice and the Secretary of the Supreme Court have become parties, has also sought a direction to frame rules and guidelines “that provide for intra-judicial appeal against the conviction in original cases of criminal contempt. “.
Under the current legal scheme, a person convicted of criminal contempt has the right to present a petition for review against the sentence and that declaration is resolved in the chambers by the court, generally without hearing the opponent.
Bhushan said that his petition has been submitted for the application of the fundamental rights guaranteed by articles 14 (right to equality), 19 (freedom of expression) and 21 (right to life) of the Constitution.
“That the current Law and Regulations do not prohibit or prohibit the prayers requested by the petitioner. In fact, it is in the spirit of the Law of contempt of courts of 1971 to establish such procedure. This Honorable Court has in the past formulated special rules to deal with cases related to the death penalty and has also devised a special remedy in the nature of a ‘curative petition’ against a final judgment of the Supreme Court for certain limited reasons, “he said.
The guilty plea stated that it was filed in order to provide important procedural safeguards when the higher court considers criminal contempt cases in original proceedings, that is, those proceedings in which it does not act as an appeals court.
“In such cases, considering the fact that there is an inherent and unavoidable conflict of interest involved, and the fact that the freedom of the alleged competitor is at stake, it is of utmost importance that certain basic safeguards are designed that would reduce (although not obviate ) possibilities of arbitrary, vindictive and arrogant decisions.
“It is extremely important to minimize such decisions, as they not only cause a great injustice to the alleged contemnor, but also discredit the court itself and are likely to be harshly judged by legal historians,” he said.
That the right to appeal against conviction in original criminal cases is a substantive right under article 21 and is derived from the principles of natural justice. The absence of such a right violates the right to life, he said.
“The right of appeal is an absolute right in accordance with Article 14 (5) of the International Covenant on Civil and Political Rights (ICCPR), which India has ratified and therefore is binding on the Indian State. According to ICCPR, the first appeal is a right even at trial it is by the highest court and the review is not a substitute for an appeal, “he said.
Contempt proceedings are those in which the aggrieved party is the Supreme Court itself, which acts as “prosecutor, witness and judge” and thus increases fear of inherent bias, he said.
“As a judge, the power of the Supreme Court to convict and sentence the accused is unlimited and arbitrary … No one can be both a suitor and a judge. Therefore, there is a need for an intra-judicial appeal.” said. said.
He said that contempt proceedings are “of a quasi-criminal nature, similar to a criminal trial” and, therefore, procedural guarantees similar to those of criminal trials should be applied.
In addition to the contempt case brought up by his tweets, Bhushan faces another contempt case from 2009.
The high court had issued in November 2009 notices of contempt of Bhushan and Tarun Tejpal for allegedly criticizing some incumbent judges and former high-ranking judges in an interview for the news magazine ‘Tehelka’. Tejpal was the editor of the magazine.
On September 10, the high court accepted Bhushan’s request to seek the help of the Attorney General. KK Venugopal if.
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