Adv. Harish Salve's designation of a senior Counsel can be stripped off
Adv. Harish Salve's
designation of a senior Counsel need to be stripped off.
1. Justice Arun Mishra’s Bench cannot hear Senior Adv.Prashant Bhushan’s case on merit as one of the two objections raised by Adv. Prashant Bhushan in his contempt case of 2010 is yet to be decided and the other objection which was decided in earlier judgment, is found to be per incuriam.
2. Adv. Harish Salve cannot argue the case as he himself is the Petitioner and he is barred to appear as a counsel for himself. His appearance amounts to aggravated contempt. [Suo-Motu -vs- C. K. Mohanan 2016 SCC OnLine Ker 21105.] It is a gross professional Misconduct and against the standard and norms expected from a designated Senior Counsel and is a ground to strip off his designation of a Senior Counsel. [Re. T.V. Choudhary, [1987] 3 SCR 146]
Court's order to Harish Salve to assist the Court is no absolution from disobedience of the law..[ Nandini Satpathy Vs P.L.Dani, ( 1978 ) 2 SCC 424 ]
4. The second objection regarding notice served on Mr. Bhushan being defective notice and being issued against the Rules and not being in Form I, is not decided and it is still open. Said objection if decided then it itself vitiates the proceedings. This issue can be raised by Mr. Prashant Bhushan by filing I.A. or Writ Petition.
6. If the case is a Suo Motu case then Amicus Curiae Harish Salve cannot be shown as a petitioner. As per the Supreme Court rules and P.N. Duda's guidelines, the title of the case should be ‘In Re: Prashant Bhushan'. Amicus Curiae’s role ends after bringing the matter to the Court’s notice. If the title is Amicus Curiae vs. Prashant Bhushan, then it is not a suo motu cognizance, and the petition is not maintainable as it was without permission from the Attorney General. The entire proceeding against Adv. Prashant Bhushan stands vitiated. [ Biman Basu vs Kallol Guha (2010) 8 SCC 673 case argued by Mr. K.K. Venugopal who is the present Attorney General for India ]
7. The court is not empowered to appoint Private Counsel as Amicus in Contempt proceedings. The ‘Rule 10’ of the ‘The Rules To Regulate Proceedings For Contempt Of Supreme Court, 1975’ gives two option to the Court whose assistance can be sought as Amicus and they are either the Attorney General or Solicitor General. Without amending the Rules Court can not pass any order. Any order contrary to rules vitiates the proceedings. Proceeding conducted by the private counsel instead of Govt. Law officers like Attorney General vitiates the proceeding. [S.K. Sundaram (2001) 2 SCC 171. It is case related with the appointment of Harish Salve as an Amicus in Contempt case as per Rule 10 when he was a Solicitor General of India]
8. The case against Prashant Bhushan is vitiated as it is instituted on Mr. Harish Salve’s incompetent petition and the order does not have mention that the cognizance is suo motu, therefore proceeding against Adv. Prashant Bhushan stands vitiated as per law laid down by Three Judge Bench in Biyani Dash (2005) 9 SCC 194. The contrary view taken in (2010) 7 SCC 592 by bench of co-equal strength headed by Justice Altmas Kabir is per incuriam. The proper procedure is followed by Three Judge Bench headed by Justice Arun Mishra’s Bench in Re: Prashant Bhushan 2020 SCC OnLine SC 588.
9. The order taking cognizance by a three Judge Bench but signed by two Judge Bench as one of the Judge is disqualified is null and void as it is coram-non-judice. As per Constitution Bench in the case of Gullapalli N. Rao AIR 1959 SC 308. The Judge (Justice Kapadia) ,who was disqualified to sign the order cannot even sit in the Bench.
10. The order issuing notice is also defective. Proceeding not be expanded beyond what is conceived of and outlined in the order taking cognizance and mentioned in the show-cause notice and any transgression, would not pass the scrutiny under judicial review. [Gobind Ram vs State Of Maharashtra, 1972 SCR (3) 536 ]
11. Order taking cognizance of Contempt against Prashant Bhushan and Tarun Tejpal should be a reasoned order mentioning specific role of each person and documents/evidence relied against them. Since the said procedure is not followed therefore the proceeding against Adv. Prashant Bhushan stands vitiated vitiated. As per Full Bench judgment in Manohar Joshi’s case (1991) 2 SCC 342]
12.The order dated 11.06.2009 taking suo motu cognizance is not in conformity with the provisions of Sec 15(3) of the Contempt of Courts Act, 1971. The specific charge needs to be drafted and mentioned in the order alongwith the sections such as 2( c) of the Act . [R.K. Arora Vs. Ace Enterprises (2018) 14 SCC 356, J.R. Parashar (2001) 6 SCC 735, Nandlal Thakkar 2012 SCC OnLine Guj 470, Archit Goyal 2005 SCC OnLine P&H 174, Editor Blitz 1979 ILR Bombay 25 (D.B.)]
13. The
notice does not contain the specific charge. Merely reproducing the order in
the show cause notice is not sufficient. It is violation of Rule 6 of ‘THE RULES TO REGULATE PROCEEDINGS FOR
CONTEMPT OF SUPREME COURT, 1975’. Before dispatching the notice, the
registry is bound to place the notice before the Bench and only after getting
endorsement, the notice has to be dispatched. [Nandlal
Thakkar 2012 SCC OnLine Guj 470, Mc Ilraith V. Grady [1968] 1 Q.B. 468]
14. Court
is Bound to record the plea of the Alleged Contemnor Mr. Prashant Bhushan when
he remains physically prsent. Plea cannot be recorded on Video Confrencing. [Court
On Its On Motion Vs. Harmeet Singh 2020 SCC OnLine P&H 703]
15. When statute is not
clear about any procedure then the directions given by the Supreme Court should
be treated as Rule till the gap is filled by the legislature. They have the
force of law under Article 141. Any order against said
directions and rules is vitiated. [Daya Ram v. Sudhir Batham
& Ors., (2012) 1 SCC 333].
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