IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY
ORIGINAL JURISDICTION
WRIT PETITION NO. ___________OF 2016
Mathews J. Nedumpara … Petitioner
Versus
Union of India & Ors. … Respondents
SYNOPSIS
It is a fundamental
principle of jurisprudence that to institute a legal proceeding seeking a
declaratory remedy or for enforcement of the same, no cause of action needs to
exist.
2. The Petitioner, who is a lawyer enrolled with the
Bar Council of Kerala in 1984 and practicing since then, is leading a National
Campaign which has as its prime objectives the following:-
(a)
Advertisement of vacancies of Judges of the higher judiciary,
invitation of applications and references , open and transparent selection and
appointment, instead of the current system of appointment by invitation where
only the elite and super elite are invited, in a democratic legitimacy in the
matter of selection and appointment of Judges;
(b)
Creation of a Judicial Ombudsman or such other mechanism as is
contemplated in the Judicial Standards and Accountability Bill, 2012 or the
Charter/Resolution called the “Restatement
of Values of Judicial Life” passed by the Supreme Court of India in its
Full Court meeting held on May 7, 1997, which was ratified and adopted by
Indian Judiciary in the Chief Justices’ Conference 1999 or any other meaningful
mechanism where grievances against Judges could be addressed;
(c)
Audio/video-recording of proceedings of all Courts and Tribunals
and in particular the Supreme Court and High Courts, which will ensure
transparency and accountability;
(d)
Reintroduction of the transfer policy, which was described by
the Seven-Judge Constitution Bench in Judges-1 case as a panacea for
allegations of favouritism and conflict of interest where a lawyer is elevated
as a Judge of the very same High Court where he has been practicing;
(e)
Bring an end to the “Uncle Judge Syndrome” by transferring
Judges whose immediate relatives are practicing in the very same Court;
(f)
Abolition of the practice of designation of Advocates as a
Senior Advocates or, at least, introduction of a common dress code for all
lawyers, including those who are designated as Senior Advocates;
(g)
Repeal of Contempt of Courts Act, 1971, for the said Act
constitutes to be the one single obstacle which has rendered freedom of speech
enshrined in Article 19 of the Constitution redundant. In none of the civil law countries, the law
of contempt exists. In England, in the
19th Century itself, contempt by scandalizing a Court was declared to be obsolete;
(h)
Introduce a transparent mechanism in the appointment of Standing
Counsel/Panel Advocates/Legal Officers for Central and State Governments,
Statutory Bodies, Public Sector Undertakings etc., so that the prevailing
system of nepotism, political favour etc., are brought to an end;
(i)
Simplification of procedures to make the judiciary as an
institution for the common man rather than it being meant to be for the Judges
and elite lawyers.
3. The Petitioner submits that the jurisdiction of
contempt of Court has been so widely abused, the Petitioner begs to submit, not
for securing the very primary object for which the said jurisdiction has
relevance, namely, to secure a free, impartial and independent administration
of justice, but to silence dissent and criticism, trammeling the very
foundation of a constitutional democracy, namely, the right to dissent. Hence, the instant Writ Petition.
*******
ORIGINAL PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF
INDIA.
STATEMENT OF FACTS
The Petitioner is An Advocate enrolled with
the Bar Council of Kerala in the year 1984 and has since been in active
practice in the various Courts and Tribunals of the country and, in particular,
the High Courts of Bombay, Delhi and Chandigarh and the Supreme Court of India,
to a limited extent. The Petitioner is
also leading a Campaign titled National Lawyers’ Campaign for Judicial
Transparency and Reforms, an NGO formed solely to foster greater transparency
and accountability in judiciary, in particular, the higher judiciary. The
Petitioner considers the words of Blackstone that the Bar is the third estate,
without in any way undermining the Press known to be the fourth estate, for the
freedom of speech, the most precious of the freedoms and liberties for which
the Father of the Nation led the freedom struggle and which the Founding
Fathers of our Constitution considered it to be the most inalienable,
transcendental and primordial basic feature of the Constitution, are in great
jeopardy today. The Petitioner, a lawyer
with more than three decades of standing at the Bar, considers himself to be
self-disciplined, invested with the maturity which his age and standing in the
profession and the society require him to observe, which make him believe that
reticence is a virtue, but, at the same time, where there is a duty to speak,
silence is a crime/sin. The Petitioner
is agonized and pained that India being a liberal democracy with a Constitution
which has enshrined the freedom of speech and liberties as the very fundamental
rights, he is not free to speak his mind freely, for, if he does so, he could
be inviting prosecution for contempt of Court and if he were to speak about
certain other issues, which he ought to be entitled to speak, he may face a
charge of sedition.
2. Lex iniusta non est lex – an unjust law is no law at all,
is a standard legal maxim – said St. Augustine; so too St. Thomas Aquinas but
with a rider, namely, that if the consequence flowing from disobedience of an
unjust law is worse than following it, then one must observe it. Mohammed Ali Jinnah felt that the freedom
struggle should be within constitutional means, namely, not to violate the laws
of the land, howsoever unjust they could be. Mahatma Gandhi also believed in
the philosophy of St. Augustine, St. Thomas Aquinas, nay, even that of Chief
Justice Edward Coke. The Petitioner, who,
undoubtedly, is a great admirer of Gandhian philosophy of defiance of unjust
law, believes that the said option ought to be exercised only when
constitutional means have totally failed.
The philosophy of Mahatma Gandhi that “a Dharma which does not meet the practical requirement of life is
not dharma, but adharma”, the Petitioner believes, today is not strictly constitutional
in overcoming an unjust law, though on moral principles are unquestionable and
would not serve the practical requirements of today. The struggle to foster the very fundamental
freedoms and liberties, of which the freedom of speech is most paramount, has
to be secured through constitutional means.
The instant Writ Petition is a humble endeavour to secure freedom of
speech, the most sacrosanct of all freedoms to the Petitioner; so too to the
129 crores of people of this country.
3. The
legal status of the Respondents is manifest from the very cause title
itself. Since in the instant Writ
Petition the Petitioner is seeking a declaration that Section 2(c)(i) of the
Contempt of Courts Act in so far as it defines the offence of contempt as “scandalises or tends to scandalise, or
lowers or tends to lower the authority of, any Court”, in other words,
criticizing a Judge, judgment or Court, is unconstitutional; that Section 16 of
the said Act, which provides that a Judge who commits contempt of his own Court
is liable to be punished like anyone else who commits contempt of Court, is
applicable to the Judges of the Supreme Court and High Courts, and to confer it
an interpretation that the said section is applicable only to members of the
lower judiciary and not to Judges of the higher judiciary is contrary to the
very concept of equality before law and further a mandamus at the hands of this
Hon'ble Court directing the Central and State Legislatures to provide for a
mechanism by which the offence of contempt could be tried and decided not by
the Judges of the Court against whom the allegation is made, for, in that case,
they are interested parties and, therefore, to observe the principles of
natural justice, namely, nemo debet esse judex in propria causa
- no one can be judge in his own cause, an independent mechanism has to be
created, particularly in cases where the allegation is made against a Judge who
has committed contempt of his own Court within the meaning of Section 16 of the
Contempt of Courts Act, the Union of India represented by its Secretaries in
the Departments of Legal Affairs and Justice, the Chief Secretary, Government
of Kerala, are necessary and proper parties; so too the Bar Council of India,
the Kerala Bar Association, the Press Council of India and the Law Commission
of India are necessary parties since in the instant petition the Petitioner
seeks to ensure that the Contempt of Courts Act is enforced primarily to secure
the purpose for which the said Act is enacted, namely, to facilitate the smooth
administration of justice and not to abuse the said Act or use it as a tool to
suppress fair criticism of the institution of judiciary.
4. To
eliminate any false impression that anybody might entertain that the Petitioner
and the Campaign which he leads are against Judges, the Petitioner begs to
submit that he being a lawyer and the legal profession being his sole means of
livelihood, the institution of judiciary is so close to his heart; he considers
Courts as Temples of Justice, the Presiding Officers as deities and, as the
Supreme Court has said in S.P. Gupta v.
Union of India, AIR 1982 SC 149, he and his fellow lawyers as the priests
thereof. The Petitioner believes in the
words of legendary Justice Krishna Iyer that the Bar is the Judge of Judges and
the sanctity, efficacy and credibility of the judiciary as an institution for
administration of justice, untainted, pristine, would all depend upon each and
every member of the Bar. The Petitioner
is reminded of the words of Justice Sabyasachi Mukherjee in P.N. Duda v. V. P. Shiv Shankar & Ors.,
1988 AIR 1208, that “To criticise a judge
fairly albeit fiercely, is no crime but a necessary right.” His Lordship added, quoting Justice Brennan
of U.S. Supreme Court, that “it is a prized privilege to speak one's
mind, although not always with perfect good taste, on all public institutions
and this opportunity should be afforded for vigorous advocacy no less than
abstract discussion.” Lord Denning
had said: “Let me say at once that we
will never use this jurisdiction (contempt) to uphold our own dignity. That
must rest on surer foundations. Nor will we use it to suppress those who speak
against us. We do not fear criticism, nor do we resent it. For there is
something far more important at stake. It is no less than freedom of speech
itself." Justice Felix Frankfurter of the U.S. Supreme
Court had said “Judges as persons, or
Courts as institutions, are entitled to no greater immunity from criticism than
other persons or institutions.”
5. The
Petitioner begs to state at the cost of repetition that while he considers the
Courts and Tribunals as sacrosanct and that their majesty, dignity and authority
should in no way be allowed to be undermined, for, the very concept of rule of
law, one of the pillars on which the concept of democratic polity is built,
which cannot stand and be sustained unless the institution of judiciary is
respected, its authority is recognized, and its orders are obeyed, at the same
time considers that the same could be achieved where, again to quote Justice
Jerome Frank of the U.S. Court of Appeals:
“I am
unable to conceive that, in a democracy, it can never be wise to acquaint the
public with the truth about the workings of any branch of government. It is
wholly undemocratic to treat the public as children who are unable to accept
the inescapable shortcomings of man-made institutions. The best way to bring
about the elimination of those shortcomings of our judicial system which are
capable of being eliminated is to have all our citizens informed as to how that
system now functions. It is a mistake, therefore, to try to establish and
maintain, through ignorance, public esteem for our courts.”
Chief Justice of India P.B. Gajendragadkar, while speaking for
the Seven-Judge Constitution Bench in Special Reference No. 1 of 1964 (AIR 1965
SC 745, paragraph 142) had said “We ought
never to forget that the power to punish for contempt large as it is, must
always be exercised cautiously, wisely and with circumspection. Frequent or
indiscriminate use of this power in anger of irritation would not help to
sustain the dainty or status of the court, but may sometimes affect it adversely.
Wise Judges never forget that the best way to sustain the dignity and status of
their office is to deserve respect from the public at large by the quality of
their judgments, the fearlessness, fairness and objectivity of their approach,
and by the restraint, dignity and decorum which they observe in their judicial
conduct.”
6. Brief facts of the instant case.
(a) These days
the Petitioner appears in Courts and Tribunals in different parts of the
country and in particular in Mumbai and Delhi.
He always feels proud to belong to the Kerala High Court Bar. He also
takes great pride of the High Court of Kerala and the Hon'ble Judges who adorn
its august office. Only a couple of days
back, in an affidavit which the Petitioner drafted, his 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.”
(b) Till the
year 1998, the Petitioner’s practice was confined to Kerala. Nowadays he occasionally comes to his home
State since his major chunk of briefs is from outside Kerala. When the Petitioner landed at Kochi on 5.3.16,
he 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 one Sri K.C.
Joseph, a Minister of Cultural Affairs in the Government of Kerala, on an
application at the hands of one Sri Sivankutty alleging that the Minister 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 Minister 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 Minister, still did
not close the case and, instead, directed him to appear before it on 10th
March, 2016.
(c) Thereafter
the Petitioner accessed Google and came across large volume of literature and
discussions on the subject. The
petitioner is afraid to say that he was flabbergasted and shocked, nay,
anguished and pained, for, an institution like this Hon'ble Court, the Hon'ble
Judges of which he holds 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, he believes,
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
“…Whether the authority and position of an
individual judge, or the due administration of justice, is concerned, 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 wrong-headed 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.” A
seven Judge Constitutional Bench of Supreme Court headed by the legendary CJI, Shri
P.B Gajendragadkar in a Presidential Reference under Article 143 of the
Constitution (AIR 1965 SC 745 para 142) observed thus:
‘..wise judges never forget that the
best way to sustain the dignity and status of their office is to deserve respect
from the public at large by the quality of their judgments, the fearlessness
,fairness and objectivity of their approach, and by the restraint , dignity and
the decorum which they observe in their judicial conduct…’’
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."
(d) 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.
(e) 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 wings
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, the Petitioner is 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 bringing
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. The
concept of contempt of Court is a cathartic jurisprudence, which has its origin
in the Canon Law and, in particular, the Canon Law of the Dark Ages, a
jurisprudence of a time when the offence of heresy, nay, contempt of the
Church, where the contemnor is burnt alive at a stake (a stump for tying a
person to be burnt alive). The “in
terrorem” jurisprudence of contempt of Court militates against all canons of
justice and fair play; it flourished in the Middle Ages where Inquisition (an organization in the Roman
Catholic Church in the past that was responsible for finding and punishing
people who did not accept its beliefs and practices) was the way in
which justice was administered. The
guilt of the contemnor could be brought out of him by torture. Forcible confessions would be obtained from
him and he was allowed to purge himself of the contempt by confession of his
guilt and apology therefor. The Contempt
of Courts Act, 1971 has its foundation in the jurisprudence of contempt of the
Dark Ages. Sub-Section (5) of Section 17
thereof is a classic example, which provides as follows:-
“17. Procedure after cognizance.—
(1) … … …
(2) … … …
(3) … … …
(4) … … …
(5)
Any person charged with contempt under section 15 may file an affidavit in
support of his defence, and the court may determine the matter of the charge
either on the affidavits filed or after taking such further evidence as may be
necessary, and pass such order as the justice of the case requires.”
Though
scholars like William Maitland would describe contempt of Court as a
jurisprudence which is sui generis, it is essentially in the realm of criminal
jurisprudence. Our constitutional and
criminal laws are founded on the principle that the guilt against a person
accused of an offence ought not to be wrung out of him, but has to be proved
against him by other men and means. The
classical Roman lawyers described it aptly by the maxim accusare nemo se debet nisi
coram deo, namely, nobody is
bound to incriminate himself or nemo
tenetur seipsum accusare – no one shall be compelled to bear witness
against himself. Sub-Section (5) of
Section 17, quoted above, places the burden to prove his innocence upon the
contemnor; it requires him to file an affidavit in support of his defence and
empowers the Court to determine the matter on the affidavit of the contemnor. Section 17(5) of the Contempt of Courts Act,
1971, therefore, is in violation of Article 20(3) of the Constitution, which
states that “no person accused of any offence shall be compelled to be a
witness against himself”; so too Articles 21, 14 and 19
thereof, which are required to be read together.
8. In the light of
the above the power of Contempt, as is presently exercised by the Hon'ble
Judges of the higher judiciary is, with much respect, more susceptible to be
abused than used. The Petitioner, with
much respect, has witnessed that, the power of contempt is often used against
the voiceless, the outspoken and persons who are upright and choose the noble
duty to speak the truth instead of committing the offense of keeping quiet when
duty bound to speak. The power of Contempt, with much respect, has more than
often been misused against the voices of truth, even though truth is an
undeniable defence against contempt proceedings.
9. The incurable injury
caused to a few, who are jailed, mostly the right and unpretentious officers of
Court, political activists and Champions of human liberties, in the name of “scandalizing
the Court” by their fair and dutiful criticism, with much respect, is nothing
when compared with the damage and injury which the contempt jurisprudence has
caused to the public at large. Justice
Krishna Iyer had lamented the contempt jurisdiction as a “jurisdiction in
terrorem”. Justice Ruma Pal of the
Supreme Court had described it as, one of the seven deadly sins of Judges. The recent incident where a contempt of Court
proceeding was initiated against a Minister of the Kerala Government for
allegedly uploading a text on his Facebook page to the effect: “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” and he being forced to
appear before this Hon'ble Court twice and ultimately made to apologize has
consequences far beyond the injury which I believe he has suffered. The Contempt proceeding initiated in this
particular case of the Minister is, with much respect, nothing but a blunt
threat to the democratic setup of we the people. It is an open violation of the right of fair
criticism in the temperate of words. When compared to the humility of the great
doyens of justice, the cognizance taken by their Lordships in the case at hand
is a gross belittlement of the highly sacrosanct seat of Justice as revered by
the people of Kerala; in simpler words, it is an act of Contempt of
itself!
10. With much respect, resorting to the
power of Contempt without judicious application of judicial mind has ramifications
of widest amplitude. It creates a fear, a terror, and worst, hatred, in the
minds of Citizen, as, when staunch believers could criticize and question even
the Almighty, His wisdom, even the “injustice” done by Him, the tax paying
citizen cannot do so in respect of a Judge who is at their service, for, if they
do so they will be hauled up for contempt?!
The ordinary man is terrorized to think that if that be the fate of a
Minister for making reference to the story of a jackal who fell in the indigo
dye, what would be his fate? As the
Petitioner has pointed out supra, the said fear has led to not venturing to
write anything about the functioning of the judiciary, except eulogizing and
flattery, be it by the so-called legal luminaries, for, they know that the
sweetest of the voice is praise.
11. Justice
Ruma Pal, in Her Ladyship’s article “The seven deadly sins of Judges” has
spoken “I can only emphasize again that
nothing destroys a judge’s credibility more than a perception that he/she
decides according to closeness to one of the parties to the litigation or what
has come to be described in the corridors of courts as “face value”.
12. The
contempt of Court law, as it stands today, therefore, ought to be completely
repealed; heavens are not going to fall; in the civil law countries, justice is
administered in no less an efficacious manner as ours without there being a Contempt
of Court law. In the United States also,
the concept of contempt by “scandalizing the Court” is non-existent; so too in
most of the common law countries.
Whether the contempt of Court law should be completely repealed is for
the Parliament to decide. The Petitioner
is not asking for that. The relief which
the Petitioner seeks in the instant petition is far narrower in scope. He only seeks a declaration that the words
“scandalizes or tends to scandalize, or lowers or tends to lower the authority
of, any Court” appearing in Section 2(c)(i) of the Contempt of Courts Act be
declared as void because it completely abrogates the freedom of speech. It is only profitable to extract the said
Section and the Petitioner does so as infra:-
“2. Definitions –
In this Act, unless the context otherwise requires –
(a) “Contempt of court” means civil contempt or criminal
contempt”
(b) “Civil contempt” means willful disobedience to any judgment,
decree, direction, order, writ or other process of a court or willful breach of
an undertaking given to a court.
(c) “Criminal contempt” means the publication (whether by words,
spoken or written, or by signs, or by visible representation, or otherwise) of
any matter or the doing of any other act whatsoever which-
(d) Scandalizes or tends to scandalize, or lowers or tends to
lower the authority of, any court, or …”
13. Nemo
debet esse judex in propria causa – no one can be judge in his own
cause – is a fundamental principle of law.
If a Judge is biased, he is a coram non judice. It is well settled that a litigant has a
right to seek recusal by a particular Judge, but of late a litigant is
convicted for contempt of Court for seeking such recusal. The judgment of the Supreme Court in Subrata Roy Sahara v. Union of India &
Ors., (2014) 8 SCC 470, where it has spoken about the
right/duty to hear a case, an obligation arising out of the oath to discharge
the duties without fear or favour, affection or illwill, has been misunderstood
to mean that where a litigant seeks recusal on the ground that the Judge could
be biased and he will not get fair justice as having committed contempt. The “in terrorem jurisdiction”, as Justice
Krishna Iyer had lamented the contempt jurisdiction to be, happened to reach
the dimension as aforesaid because under the said jurisdiction, judiciary is
the Prosecutor and Judge, both at once.
Without meaning any disrespect to the Hon'ble Judges, we do not have a
single instance where a Judge has convicted himself of committing contempt of
his own Court. The Petitioner had the
privilege of coming across a few cases where conscientious Judges would blame
themselves if something goes wrong in their own Court due to their own act or
omissions to do an act in the discharge of his or their duty. Justice Ralf Kohn of Michigan, USA, had come
10 minutes late for a case he was hearing.
He expressed regret in open Court and fined himself 50 Dollars. The
charge to which he pleaded guilty was contempt of Court – his own Court. It is not that we do not have such noble
examples at all. Legendary Justice
Krishna Iyer is an example. So too, Justice Pendse of Bombay High Court. The
Petitioner had occasion to see yet another noble soul, Hon'ble Shri Justice
S.J. Vazifdar, Hon'ble Chief Justice of the Punjab & Haryana High Court,
profusely apologizing if His Lordship were to ask a wrong question or if His
Lordship misheard or misunderstood an argument of a counsel or had come to the
Court even two or three minutes late.
The fact that we have such Judges of heavenly qualities always makes the
Petitioner overwhelmed. Nonetheless, it
is a fact that Section 16 of the Contempt of Courts Act has never at all been
used where Judges, “browbeat, bully or
misbehave”, to borrow an expression of legendary Justice Krishna Iyer in
“Off the Bench”, who lamented the contempt jurisdiction as “contempt
zenophobia”. The question is: Quis custodiet ipsos custodes? – who will guard the guards themselves or
who watches the watchmen. Section 16 can
work only if there is a mechanism evolved to hear the complaint of lawyers and
litigants against the “browbeating,
bullying or misbehaving” at the hands of Judges.
Such a mechanism can only be evolved by the Parliament. Hence, the Petitioner in the instant Writ
Petition seeks a mandamus to the Union of India to consider the feasibility of
bringing an appropriate amendment to the Contempt of Courts Act, 1971 to remove/delete
the words “scandalizes or tends to
scandalize, or lowers or tends to lower the authority of, any Court” from
Section 2(c)(i) of the said Act or substitute them with some other appropriate
words.
GROUNDS
Grounds in support of
the reliefs sought for are fairly elaborated in the statement of facts above
and hence are not repeated. The
Petitioner respectfully submits that paragraphs 1 to 13 hereinabove may be read
and treated as the grounds in support of the instant Writ Petition. In addition thereto, the Petitioner begs to
add that:
(A)
It is a fundamental principle of
jurisprudence that to institute a legal proceeding seeking a declaratory remedy
or for enforcement of the same, no cause of action needs to exist.
(B)
The Petitioner submits that the
jurisdiction of contempt of Court has been so widely abused, the Petitioner
begs to submit, not for securing the very primary object for which the said
jurisdiction has relevance, namely, to secure a free, impartial and independent
administration of justice, but to silence dissent and criticism, trammeling the
very foundation of a constitutional democracy, namely, the right to
dissent.
14. The
instant Writ Petition is not barred by the doctrine of res judicata estoppel
since though the Petitioner has raised some of the issues mentioned in this
petition before the Hon'ble High Court of Judicature at Bombay, those Writ
Petitions are pending, literally in the cold storage.
RELIEFS:
For
the aforesaid grounds and those to be argued at the time of hearing, the
Petitioner most respectfully prays that this Hon’ble Court be graciously pleased
to:
(a)
declare that the Contempt of Courts Act, 1971 is
unconstitutional and void, or at least Sections 2(c)(i), 14, 16 and 17(5)
thereof, since the said Sections render the freedom of speech nugatory, empower
the Court to be a Judge of his own cause, make a distinction between Judges of
the subordinate Courts and those of the superior Courts and permit self-incrimination/shifting
the burden of proof, at least in part, on the accused/contemnor, respectively;
(b)
without prejudice to prayer (a) above and in supplemental
thereof, declare that Section 16 of the Contempt of Courts Act, 1971 does not
contemplate any distinction between Judges of the subordinate Courts and those
of the superior Courts, namely, of the Supreme Court and High Courts, and the
concept of a Judge committing contempt of his own Court and the liability to be
prosecuted and punished where a Judge commits contempt of his own Court is
equally applicable to Judges of the superior Courts as in the case of the
Judges of the subordinate Courts;
(c)
without prejudice to prayers (a) and (b) above, declare that
sub-Section (5) of Section 17 of the Contempt of Courts Act, 1971 has to be
read in consonance with Article 20(3) of the Constitution of India, which
provides that “no person accused of any offence
shall be compelled to be a witness against himself”; that the common law principles, namely, accusare nemo se debet nisi coram deo, namely, nobody is bound to incriminate himself or nemo tenetur seipsum accusare – no one
shall be compelled to bear witness against himself – have to be read into the
said Section; that the guilt of a person accused of an offence ought not to be
wrung out of him, but has to be proved against him by other men and means; that
he is entitled to maintain absolute silence and the burden of proof is entirely
on the prosecution/accuser even if the accuser is the Court itself and that the
said Section has to be construed accordingly to protect it from challenge to
its constitutionality;
(d)
declare that for the Contempt of Courts Act, 1971 to pass the
test of Article 13 of the Constitution, namely, that it does not violate the
fundamental rights and even where violation of the fundamental right is
limited, such violation does not result in the destruction of the basic
structure of the Constitution of which the foundational pillar is the concept
of rule of law, the Parliament is duty bound to bring into existence a credible
mechanism by appropriate amendments to the said Act so as to ensure that not
only contempt at the hands of lawyers and litigants, nay, the public at large,
are prosecuted and punished, but also contempt at the hands of Judges of all
Courts irrespective of their stature, keeping particularly in mind that a
contempt of Court proceeding, as any other prosecution, none could be a Prosecutor and Judge, both at
once;
(e) pass such
further and other reliefs in the nature and circumstances of the case may
require.
Adv
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