IN THE HIGH COURT OF KERALA
CONTEMPT OF CASE (CRIMINAL) NO 192 OF 2016
Mathews J. Nedumpara… Applicant/
Intervener
IN THE MATTER OF:
V. Sivankutty … Petitioner
Versus
K.C. Joseph … Respondent
APPLICATION SEEKING PERMISSION TO INTERVENE IN THE ABOVE CONTEMPT OF CASE (CRIMINAL)
ADVOCATES
P.BIJIMON (B-732)
JACOB SAMUEL (J-1316)
K.T.SEBASTINAN(S-2683)
N & N LAW FIRM
210 PRASANNA VIHAR APTS,
NEAR HIGH COURT OF KERALA
COCHIN-31. PH: 0484-236873
IN THE HIGH COURT OF KERALA
CONTEMPT OF CASE (CRIMINAL) NO 192 OF 2016
Mathews J. Nedumpara… Applicant/
Intervener
IN THE MATTER OF:
V. Sivankutty … Petitioner
Versus
K.C. Joseph … Respondent
AFFIDAVIT
I, Mathews Nedumpara, son of Joseph, aged 55, Advocate, residing at 12-F, Harbour Heights, “A” Wing, 12th Floor, Sassoon Dock, Colaba, Mumbai–400 005, do hereby solemnly affirm and state as follows:-
1. I am swearing this affidavit which constitutes to be evidence in support of the accompanying application seeking leave/permission of this Hon'ble Court to intervene myself in the above proceeding because I could not desist the call of my conscience.
2. These days I appear in different Courts and Tribunals in different parts of the country and in particular in Mumbai and Delhi and I always feel proud to belong to the Kerala High Court Bar. I also take great pride of the High Court of Kerala and the Hon'ble Judges who adore its august office. Only a couple of days back, in an affidavit which I drafted on behalf of a client of mine, my client happened to affirm as infra:-
“Before I part with, I will be failing in the discharge of my obligation to my lawyer if I were not to state what my lawyer told me with great amount of pride that he belongs to a Bar of which the doyen late Sivasankara Panicker gave up his glorious practice when his son Justice K.S. Radhakrishnan was elevated as a Judge of the Kerala High Court and who later adorned the august office as a Judge of this Hon'ble Court, which made my lawyer, so too every lawyer of the Kerala Bar, proud of his great tradition.”
3. Till the year 1998, my practice was confined to Kerala. Now a days I occasionally come to my home State since my major chunk of briefs are from outside Kerala. When I landed at Kochi on 05.03.2016, I happened to come across a news report that a Division Bench of this Hon'ble Court has initiated suo motu contempt of Court proceeding against the Respondent on an application at the hands of the Petitioner alleging therein that the Respondent, a Minister of Cultural Affairs in the Government of Kerala, on his Facebook page has written as infra:-
“If the antecedents of the persons who made the comments are examined, there can be no surprise that the ‘jackal who fell in the indigo dye howls’, and he cannot be blamed.”
The newspaper report further says that even though the Respondent tendered an unconditional apology for his remark against the Hon'ble Judge, this Hon'ble Court directed him to appear before it in person on 1st March, 2016 and that on that day the Hon'ble Court, after being told about the tendering of an unconditional apology by the Respondent, still did not close the case and, instead, directed him to appear before it on 10th March, 2016.
4. Thereafter I accessed Google and came across large volume of literature and discussions on the subject. I am afraid to say that I was flabbergasted and shocked, nay, anguished and pained, for, an institution like this Hon'ble Court, the Hon'ble Judges of which I hold in high esteem and regard and have always taken proud to be a member of the Kerala Bar, for whom the Bench and the Bar are two sides of the same coin, has chosen to take cognizance of a matter which, I believe, ought to have been totally ignored. In a contempt of Court proceeding, silence is a sign of strength. Justice Oliver Wendell Homes of the American Supreme Court had said:
“Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage."
Lord Atkin, one of the greatest Judges of yesteryears, had said “… no wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way : the wrongheaded are permitted to err therein: provided that members of the public abstain from 'imputing improper motives' to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.
In McLeod v. St. Aubyn, 1899-AC 549 (H), it was held as follows:-
"It (contempt jurisdiction) is a summary process, and should be used only from a sense of duty and under the pressure of public necessity, for there can be no landmarks pointing out the boundaries in all cases. Committals for contempt of Court by scandalising the Court itself have become obsolete in this country. Courts are satisfied to leave to public opinion, attacks or comments derogatory or scandalous to them. But it must be considered that in small colonies, consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of Court for attacks on the Court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court."
5. In short, as legendary Justice Krishna Iyer had said in an article on contempt “Contempt power – Cipherise its User”, the concept of contempt of Court by scandalizing it has become obsolete all over the world. In the civil world, the Court exercises no contempt of Court power at all. When the newspaper Observer had come out with a headline “Lord Denning is an ass”, His Lordship took no offence thereof. Lord Denning in his delightful book “What Next in Law” had chosen to give a sub-title “Denning is an ass”. His Lordship was not moved at all by the hostile abuse by Mr. Michael Foot. Lord Justice Salmon said: "The right to criticise judges ... may be one of the safeguards which helps to insure their high standard of performance." Justice Krishna Iyer is considered to be the greatest of the Judges modern India had given birth to and we are all proud that this Hon'ble Court all throughout carries his legacies, his courage for preservation of freedoms and liberties, particularly the freedom of speech. His Lordship in his Book “Off the Bench” had another chapter titled “Contempt power – a Case of Survival after Death”. His Lordship was against the lawless jurisprudence of contempt where judiciary is the Prosecutor and Judge, all at once, because the frequent exercise of the power of contempt would mean terrorizing the common man.
6. The public at large could criticize the President of India, the Prime Minister, but he cannot utter a word even against a lowest of the judicial officer. The power of contempt, particularly of the contempt by scandalizing the Court by criticizing it and its Judges has a very disquieting consequence. In this country, there is no literature, no drama, no cinema, no poetry, no prose and no caricature in any shape where the judiciary, one of the most important departments of the Government, could be critically discussed and deliberated. If Charles Dickens were born and to author Bleak House in India, instead of U.K., there would have been umpteen number of contempt of Court proceedings against him and, I am sure, majority of them would have been by the lawyer fraternity. There is no other jurisprudence which has been put to so much of abuse as the “in terrorem” jurisprudence of contempt of Court; the only other jurisprudence being the jurisprudence of PIL. The jurisprudence of PIL means the judiciary acting as the executive, legislature and judiciary, all in one at the same time, which has meant the orders of Courts, which are in the realm of executive and legislative policies, becoming the subject matter of controversy and criticism at the hands of the public at large. Even the will of the supreme legislature, we the people, acting through their elected representatives, the Parliament and State Assemblies, in bring into existence a mechanism for an open and transparent selection and appointment of Judges of the higher judiciary has been thwarted by means of PILs by challenge to the enactments which are not justiciable. An Act of Parliament could be freely criticized; the concept of contempt of the Parliament became obsolete in the 18th Century, but today, in the 21st Century, the ordinary citizen cannot criticize a judgment of the Supreme Court without the fear of being hauled up for contempt of Court.
7. I was deeply agonized and pained by the gross abuse of the jurisdiction called contempt of Court which, if at all is justified and is capable of doing public good, ought to be used sparingly. I believe it is my duty to intervene in the above petition and bring home my concern against the abuse of the jurisdiction of contempt of Court, which, I can say in all humility and sincerity, is shared by millions of ordinary citizens of the country. Hence, the accompanying application seeking permission to intervene in the above proceeding.
Deponent
Solemnly affirmed and signed before me by the deponent, who is personally known to me, on this the 7th day of March, 2016 in my office at Ernakulam
P.BIJIMON( B-732)
Advocate for the Applicant/Intervener
IN THE HIGH COURT OF KERALA
CONTEMPT OF CASE(CRIMINAL) NO 192 OF 2016
Mathews J. Nedumpara, aged 55
S/O Joseph, , Advocate,
residing at 12-F, Harbour Heights,
“A” Wing, 12th Floor, Sassoon Dock,
Colaba, Mumbai–400 005,… Applicant/ Intervener
IN THE MATTER OF:
V. Sivankutty, MLA
Mullakkal Veedu
T/C 36/1241,9,Subash Nagar
Perunthanni, Thiruvananthpuram … Petitioner
Versus
K.C. Joseph, (Minister for Rural Development,
Planning and Cultutre to Government of Kerala)
Karuvelithara, Vadavathoor P.O
Kottayam- 670531
… Respondent
APPLICATION SEEKING PERMISSION TO INTERVENE IN THE ABOVE PETITION PREFERRED BY THE APPLICANT/INTERVENER THROUGH HIS COUNSEL SHRI P.BIJIMON
MAY IT PLEASE THIS HON'BLE COURT:
For the reasons stated in the accompanying affidavit and those to be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court be graciously pleased to:
(a)permit the Applicant/Intervener to intervene in the above contempt of case (criminal)and to be heard;
(b)pass such further and other orders as the nature and circumstances of the case may warrant.
Dated this 9th day of March, 2016.
P.BIJIMON( B-732)
Advocate for the Applicant/Intervener
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