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An advocate Tuesday questioned a plea filed in the Supreme Court seeking contempt action against him for accusing a senior apex court judge of indulging in judicial impropriety.

Advocate Prashant Bhushan challenged the maintainability of the plea by senior counsel Harish Salve to launch contempt to court proceeding against him for accusing Justice S.H. Kapadia of indulging in corruption. Bhushan made the allegation in an interview to Tehelka magazine.

A three-judge bench, headed by Justice Altmash Kabir, heard the argument of Bhushan’s counsel and former union law minister Ram Jethmalani and reserved its verdict on the issue if the plea was worth hearing by the court at all.

Salve was working as amicus curiae (the friend of court) to a special three-judge bench adjudicating environmental issues when he drew its attention towards Bhushan’s interview.

As Justice Kabir’s bench Tuesday took up the plea for hearing, Salve recalled that during the last hearing on the issue, Jethmalani had told the court that he as well his client Bhushan held Justice Kapadia in their highest esteem.

Terming it as a ‘positive sign’, Salve said it appeared to him that the contentious matter appeared to be heading to resolution and reconciliation.

At this, the bench asked Bhushan’s counsel if he contemplated tendering an apology for the remarks made against Justice Kapadia.

But curtly refusing that his client had any plan to tender an apology, Jethmalani began questioning the maintainability of the plea for launching the contempt to court proceeding against Bhushan.

Referring to an old ruling, in the P.N. Dudsa versus Shiva Shankar case of the 1988, which laid down the procedures for raising a contempt to court plea, Jethmalani said Salve’s plea needed to be dismissed as it suffered from procedural lapses.

He said there was no concept of filing an application or a traditional lawsuit before a court requesting it to take suo motu action against an alleged contemnor.

For a court to take action against an alleged contemnor on its own, the court has to either initiate the action on its own in the real sense of the term, argued Jethmalani.

Alternatively, the person wanting the court to take action against an alleged contemnor has to simply bring the alleged contemptuous facts to the notice of the court and leave it to the court’s wisdom to initiate the contempt to court proceeding, said Jethmalani.

He added that in this case, however, when Salve, first sought to apprise Chief Justice K.G. Balakrishnan’s bench of Bhushan’s alleged contemptuous remarks against Justice Kapadia, the bench, instead of considering the matter itself, merely asked him to take whatever steps he wanted to take.

Salve subsequently moved a formal application for launching the contempt to court proceeding against Bhushan even without taking permission from government’s law officer, argued Jethmalani.

Salve said he was confident that the court can launch contempt action against Bhushan

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