JUDICIAL PERFIDIES-5-201021

 

Let me repeat two references I had made in Judicial Perfidies-3:

 

‘SC slams Centre for 'cherry-picking' names for tribunals, directs govt to make appointments in two weeks’, on 15/09/2021, at https://www.firstpost.com/india/sc-slams-centre-for-cherry-picking-names-for-tribunals-directs-govt-to-make-appointments-in-two-weeks-9966641.html and

 

‘Why have collegium at all?’: What Kureshi’s rejection says about SC independence in the Modi era, on 31/08/2021 at https://scroll.in/article/1004168/why-have-collegium-at-all-what-kureshis-rejection-says-about-sc-independence-in-the-modi-era?fbclid=IwAR2VB2msqBoccd6ACLO728Sn4bokQv49NU-LRZayv9gNCBs_fWIbxqk-S6E

 

For me, there is no doubt, both reports have enough facts and pertinent questions.  For the same reason, I can imagine at least some of those who have gone through the above reports recollecting two quips: pot calling the kettle black or prostitutes talking of chastity.

 

If the appointments made by the Executive are questionable, the appointments made by the unconstitutional Collegium are no better. But the credibility of the Collegium does suffer because it has been made an in house affair with an opaque procedure whereas the alleged cherry picking by the Centre is at least by a team  that includes members from opposite sides of the fence, for example, the information commissioners under the RTI Act are selected by a committee comprising the PM/CM, another member of the respective Cabinet and the Leader of the Opposition in the Lok Sabha/State Legislature.

 

Further, while the appointments made on the recommendations of these committees can still be questioned in a court of law, such a scope is not there in the matter of appointment of judges to the higher courts. We did have the case of at least one Central Vigilance Commissioner being removed from that post through judicial intervention. This is what Wikipedia reports about this case:

 

Supreme court quashes appointment of CVC[edit]

PJ Thomas was appointed as the Chief Vigilance Commissioner in September 2010, on the recommendation of a High Powered Committee (HPC) headed by the Prime Minister of India. The selection of the new CVC was marked by controversies, after Sushma Swaraj, who was part of three-member selection committee, objected to the choice of Thomas, citing the pending chargesheet against him. A public interest litigation was filed in the Supreme Court of India by Centre for Public Interest Litigation and India Rejuvenation Initiative.^[17]

On March 3, 2011, the Supreme Court quashed the appointment of Thomas as the Chief Vigilance Commissioner, noting that the HPC did not consider the relevant materials on the pending chargesheet.^[18] Subsequently, Mr Thomas resigned.^[19]

While the legality of Thomas resigning when the apex court had quashed his appointment itself is a question to be dealt with legal luminaries, the Supreme Court itself had said that the high-powered committee's recommendation on appointment of Thomas "does not exist in law".

Worse, this case, the cause of which happened in 1991-92, is still pending.

Meanwhile, the 1^st accused, K Karunakaran, who had been the Chief Minister of Kerala, when the scam happened, was discharged, on his death in 2010, almost 20 years later.  

Another chief minister, Ommen Chandy, was impleaded by none other than V S Achuthanandan who had been Ommen Chandy’s predecessor as Chief Minister till 2011.

The Kerala High Court discharged Ommen Chandy in 2013 and the apex court also refused to entertain Achuthanandan’s plea in 2015. 

These details have been brought out only with the aim of highlighting the fact that despite the higher judiciary dealing with the case on so many occasions the case is still pending with many former ministers and secretaries to the Government of Kerala remaining under cloud but neither punished or nor acquitted.

The report ‘CVC loses job, UPA face’ (March 4, 2011, https://indianexpress.com/article/news-archive/web/cvc-loses-job-upa-face/) reveals many lapses at various levels in the appointment of Thomas as the CVC. Here is one pertinent observation of the apex court:

We find that there are at least six notings of the DoPT between June 26, 2000, and November 2, 2004, which have recommended initiation of penalty proceedings against P J Thomas (for his alleged role in the palmolein scam) and yet in clearance given by the CVC on October 6, 2008, and in the Brief prepared by the DoPT on September 1, 2010, and placed before the HPC, there is no reference to the earlier notings, the court said, expressing its surprise at the government’s consistent omission over the years.

Again, none of those responsible for these consistent omissions over the years had been investigated or punished by these very courts whose job it seems is to only give a decision, either way, in any dispute between litigants brought before them or proactively involve only in such cases as it suits them, for whatever reasons.

This brings me to some critical analysis of the basic judicial function.

Let me begin with credibility.

If not the only one reason, the credibility of the judiciary does certainly rest on its most important role as a third (impartial) party in any dispute.

This is the reason why Bar Council of India rules even ban relations of judges, practicing as advocates, from appearing before them.

But the Bar Council Rules view these relations in a very narrow manner, to include only sons, daughters, etc. The relevant extract of the Rules is reproduced below.

6. An advocate shall not enter appearance, act, plead or practise in any way before a court, Tribunal or Authority mentioned in Section 30 of the Act, if the sole or any member thereof is related to the advocate as father, grandfather, son, grand-son, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.

*For the purposes of this rule, Court shall mean a Court, Bench or Tribunal in which above mentioned relation of the Advocate is a Judge, Member or the Presiding Officer

I have read of at least one judge, Binod Kumar Roy, who seemed to have had his fingers on the pulse of the society and ears to the ground. He was the Chief Justice of the Punjab and Haryana High Court when he issued a five-page administrative directive restricting relatives of certain judges from appearing before them.

 

This is an extract from a report (currently not accessible), dated 08/11/2004, at http://www.outlookindia.com/full.asp?fodname=20041108&fname=Judges+%28F%29&sid=1&pn=1

The Bar Council rule is clear that lawyers can't appear before their own kin. Roy's directive identified a dozen judges whose relatives are advocates (see All in the Family) and forbade them from appearing before any of these 12. This ensured that a judge cannot help even a fellow judge's kin.

He had justified his order quoting jurist H. M. Seervai from his book, Constitutional Law of India. The quote is: "It is true that the solution suggested is unusual, but unusual situations which pervert the judicial system require unusual and unorthodox remedies."

As per the report, within a month of this directive, the SC collegium recommended his transfer to the Patna High Court.

Another judge I would love to quote here is S M Daud, of the Bombay High Court. This is what a Times of India report, dated 24/03/2002 read:

Mangalore: Noted writer Arundhati Roy, who was convicted by the supreme court for contempt of court, has got support from an unexpected quarter with a high court judge saying the conviction was "wrong". "Arundhati Roy was wrongly convicted," Justice S M Daud, a judge of the Bombay High Court, said. The courts should accept the criticism by the citizens, he told reporters here on Saturday. The highest court should also be open to scrutiny by the public, he said, adding that the courts can either refute it or justifies their actions. He also suggested that the courts should cut down the vacation periods and working hours should be increased to expedite the clearance of the pending cases. Roy was recently convicted by the supreme court on charges of contempt of court and sentenced to a one-day "symbolic imprisonment" and slapped Rs 2000 fine for criticising the courts.

Let the parting shot on credibility be from the then head of the Parliamentary Standing Committee on the Ministry of Law and Justice, Rajya Sabha member E.M.S Natchiappan, who had said: 'Judges appointing judges is bad enough in itself; judges judging judges is worse.'

We shall deal with the issue of judges judging themselves later.

For now, we need to have a look at the second report referred to at the beginning of this critique.  The title of the report- ‘Why have collegium at all?’: What Kureshi’s rejection says about SC independence in the Modi era- itself is enough to raise hackles. Why have collegium at all? What is special about Kureshi’s rejection? What is SC independence? Is it fettered under Modi era? Was it better before?

We have seen in an earlier part how the apex court usurped the constitutional power of the Executive to appoint judges. Now this report begins with the assertion that On August 26, the Modi government cleared all nine names sent in by the Supreme Court collegium for appointment as judges on the Supreme Court. But the point of resentment was leaving out Akil Kureshi, currently the chief justice of the Tripura High Court and the second-most senior high court judge in the country.

The report adds:

All decisions in the Supreme Court collegium are carried out in secret with no record or public communication, so there is no official reason for why Kureshi’s name was rejected. However, legal circles point to his being a judge in the Sohrabuddin Sheikh encounter case.

 

“I have absolutely no doubt he was extremely fit to be appointed and was excluded purely for extraneous reasons,” a senior advocate of the Supreme Court, who did not want to be identified, told Scroll.in. “He ordered the custody of [current Union home minister] Amit Shah.”

 

In 2010, Justice Kureshi had ruled that Shah should be sent to the custody of the Central Bureau of Investigation as an accused in the murder of Sohrabuddin Sheikh. Shah was later acquitted of the murder charges in December 2014.

There is also this additional insinuation…

…legal scholar Anuj Bhuwania calls this incident a “new low”. “The most shocking thing here is that the collegium did not even dare to propose his [Kureshi’s] name,” Bhuwania said. “In fact, for so long, the entire appointment system was paused since Justice [Rohinton] Nariman insisted on Kureshi’s name being there on the appointment list.”

 

For nearly two years prior to this, appointments to the Supreme Court were paused with no reason provided. However, the process restarted only five days after the retirement of Justice Nariman, with the collegium proposing a list of names which prominently excluding Kureshi.

 

Thankfully, this report, with its insinuations, quite capable of lowering the dignity of the courts, has not invited any prosecution under the Contempt of Courts Act.

 

More importantly, I have never heard any politician, except the one who went to jail in Kerala for six months for referring to a judge of the Kerala High Court as a dimwit, or bureaucrat refer to our courts and its judges except in respectful terms. But is the reverse also true? Not to my mind, as the insinuation contained in ‘cherry picking’ suggests.

 

Judges of the apex court, S. B. Sinha and Markandeya Katju, had opined that "the only way to rid the country of corruption is to hang a few of you on the lamp post. The law does not permit us to do it but otherwise we would prefer to hang people like you at the lamppost … everywhere, we have corruption. Nothing is free from corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people in the public so that it acts as a deterrent on others."

Judges B. N. Agarwal and G. S Singhvi expressed the same sentiments, by suggesting "for the bureaucracy in the country to work without corruption, these bureaucrats need to be flogged."

While one can easily share the ire of these judges, the only thing that I wanted to highlight here has been the failure of the judiciary to walk the talk.

To conclude this part, here is a parable involving Swami Ramakrishna Paramahamsa.

 

A child had the habit of eating too much jaggery. His mother took him to Paramahamsa. The Swamiji just made the boy sit on his lap, looked him in the eyes and told the mother to bring him back after a week. This was repeated a few times. Then, Paramahamsa, as usual, made the boy sit on his lap and looking at his eyes told him that eating jaggery is a bad habit and he should not do it. That was all. Astonishingly, the boy stopped eating jaggery thereafter. The mother went back and asked Paramahamsa why he took so long to just give that advice. Paramahamsa replied that initially he himself had that bad habit. He advised the boy only after giving up that habit himself.

 

P M Ravindran/raviforjustice@gmail.com/201021

JUDICIAL PERFIDIES-4-111021

 

Contempt of Court Act is probably the only anti-democratic law in this democratic country. When it is said, of even ordinary laws, that they are like spiderwebs where insects are caught, but birds just fly through, one can imagine the malicious potential of this law, hanging like the proverbial sword of Damocles over every citizen’s head. Or, why imagine? We saw it (Judicial Perfidies-3) in the case of high court judge Karnan, that even provisions of Article 217(1)(b) could not save him from being sent to prison for 6 months. Article 217(1)(b) is reproduced below for ease of understanding:

a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court.

 

And here is what Article 124(4) says:

A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.

 

Are there any other means to punish a judge for any other offenses for which ordinary citizens, including public servants of other categories can be punished? Though as per Indian Penal Code and Prevention of Corruption Act, judges too are public servants, even the Constitution Review Commission had only recommended empowering the Chief Justice to withhold work from a judge who refuses to resign on allegations against him being prima facie established.

 

We have also seen in the cases of contempt of court against Adv Prashant Bhushan the lackadaisical way the court has handled them. To be explicit, we know how the court has been sitting on serious allegations of corruption against former Chief Justices of India for more than a decade now while punishing him with a one rupee fine in the matter of two tweets which could easily have been dismissed as a matter of a citizen’s right to criticize the conduct of a public servant. On the flip side we have a political leader of a national party, that had been in power for most of the post independent days, abusing the Prime Minister of the Nation by calling him a thief. He had even been hauled up before the apex court for misusing the apex court’s name while trying to substantiate his abusive lies and the court had only taken cognizance of the misuse of the court’s name.

 

More recently, a report in the online media The Wire informed its readers that A bench of Chief Justice Dipankar Datta and Justice M.S. Sonak (of Mumbai High Court), according to Bar and Bench, refused to initiate action against an individual who had uploaded allegedly contemptuous videos on WhatsApp and YouTube. The judiciary, the bench said, has the ability to shrug of spurious allegations.

 

The report continued: “The Court has the duty of protecting this interest of the community in the due administration of justice and, so, it is entrusted with the power to punish for its contempt. This power is to be only sparingly exercised, not to protect the dignity of the Court against insult or injury, but, to protect and vindicate the right of the people so that the administration of justice is not perverted, prejudiced, obstructed, or interfered with,” the court’s order said.

Incidentally, the complainant had received the permission of the Advocate General for initiating the contempt proceedings. (‘Contempt of Court Should Only Be Used to Protect People's Rights: Bombay HC’, 23/AUG/2021, at https://thewire.in/law/contempt-of-court-should-only-be-used-to-protect-peoples-rights-bombay-hc)

 

Now, here are some extracts from another report from The Wire (‘AG Consents to Contempt Proceedings Against YouTuber for Rant Against SC’, dated 15/SEP/2021 at

https://thewire.in/law/ag-consents-to-contempt-proceedings-against-youtuber-for-rant-against-sc)

The AG has described the contents of the video as vituperative, gross and highly derogatory to the Supreme Court of India and the judiciary as a whole, being clearly intended to denigrate the courts. The allegations made by Bharti against the Supreme Court are, among other things, of bribery, favouritism, nepotism and abuse of power.

It is, however, debatable whether the video, which has been in the public domain for more than two months, has “lowered the authority of the court in the eyes of the public and obstructed the administration of justice” as the AG has claimed.

 

The report also cites contempt of court proceedings initiated in the apex court against stand-up comedian Kunal Kamra and cartoonist Rachita Taneja for their tweets on the apex court which has been pending since 2020 and the refusal of judges S.S. Shinde and M.S. Karnik, of the Bombay high court to initiate contempt proceedings against a litigant who lamented in the social media that her case suffered from “tareekh pe tareekh (adjournment after adjournment)”

 

Do I need to reiterate that the contempt of court provisions in the Constitution and the Contempt of Court Act are preposterously anti-democratic and violative of the right of the public to criticize the conduct of public servants? One may subscribe to the limited use of the contempt charges in cases where court orders are not complied with. But then this is one use which appears to be used with far too much reservation than for suppressing criticism.

 

Take the current case of farmers protest or the earlier one against the Citizenship Amendment Act.

 

The right to protest is almost a fundamental right in a democracy. But it cannot, by any stretch of imagination, be claimed that this right of individuals and groups to protest can infringe on the right of other individuals and groups not to join such protests.

 

One of the damning legacies of Mohandas Karamchand Gandhi and his non-violent, non-co- operation-based struggle for freedom is that protests, disruptive of normal life, has become the order of the day. While such protests could be justified under a colonial rule it certainly cannot be tolerated, leave alone encouraged, in a democratic society, supposed to have rule of law.

 

It took more than 50 years for our courts to acknowledge this fact and hold bandhs illegal. The first such verdict was given by the High Court of Kerala. The Government of Kerala challenged it in the apex court, but the appeal was dismissed. Bandhs became illegal as per the law of the land. But in Kerala they continued to be perpetrated by calling it hartal. Till Covid struck, there have been many state level hartals and more than 100 local hartals in the state every year.

No contempt of court charges had been raised against any of the defaulting public servants, who had failed to enforce the law of the land, despite gross violation of fundamental rights of most of the citizens, depriving many of them of their own daily wages and livelihood.

 

In 2013, I had applied under the Right to Information Act (RTI Act) to the Secretary, Home Ministry, Government of Kerala, seeking copies of the orders of the high court holding bandhs illegal and the apex court upholding that decision. It was forwarded to the High Court. The reply I got from the Public Information Officer (PIO) of the High Court was shocking, to say the least.

 

The PIO not only denied the information claiming that Rule 12 of the Kerala High Court (Right to Information) Rules forbid entertaining applications seeking information or document related to judicial proceedings but also informed me that I could get the information under Rule 128/129 of the Rules of the High Court of Kerala, 1971.

 

This was shocking for two reasons: one, the judiciary was exempting itself from the purview of the RTI Act in respect of its primary function. This must be viewed as misuse of Section 28 of the RTI Act which provides for competent authorities to make rules to carry out the provisions this Act and not to brazenly limit its applicability. It is true that Section 8(1)(b) of the Act provides that there shall be no obligation to give any citizen information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court.

 

Here, the question certainly needs to be asked if the courts can expressly forbid all information pertaining to its primary function? We are aware of in camera proceedings, ban on disclosing names of victims of sexual crimes etc which nobody would dispute as unreasonable.

 

The offer of information under High Court Rules of 1971 also indicates brazen violation of Section 22 of the RTI Act which is reproduced below.

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.

 

In the case of anti CAA agitation, the apex court even appointed interlocutors to interact with the protestors. While the effort was a total failure, again the question arises why the judiciary, which had rightly held disruptive protests illegal, had taken upon itself to have discussions with the protestors outside the court.

 

The same fiasco was repeated in the case of the farmers’ protests. Here the court went on to appoint a committee to have discussions with the protestors. After the committee had submitted its report, the court has been sitting on it without taking any action to resolve the law and order situation. This even lead to one of the members to go public and demand that their report be released for the public. Shetkari Sanghatana president Anil J Ghanwat, in a letter dated September 1 to the CJI, said the committee’s report “has addressed all apprehensions of the farmers” and its “recommendations will pave the way to resolve the ongoing farmers’ agitation”. “As a member of the Committee, especially representing the farmers’ community, I am pained that the issue raised by the farmers aren’t yet resolved and the agitation is continuing. I feel that the report has not been given any attention by the Hon’ble Supreme Court,” his letter stated. (‘Release our report, it addresses farmer issue: Supreme Court panel member to CJI’, 08 September 2021, https://indianexpress.com/article/india/release-our-report-it-addresses-farmer-issue-supreme-court-panel-member-to-cji-7495367/)

 

Worse, even as the pandemic continued to make life uncertain and miserable for the people at large, with Kerala contributing 60 to 70 percent of the daily infections in the nation, a hartal was announced for 27 Sep 2021, as part of the Bharat Bandh announced in support of the agitating farmers.

 

While associations of traders requested for exemption from hartal, an individual approached the High Court seeking to declare the hartal as illegal. But the Kerala Government assured the court that all those who wanted to work will be provided security and the necessary facilities. Suffice to say that the court closed the case on this assurance.

 

But normal life did get disrupted all over the state. Reports that appeared in the print media on 28 September 2021 informed us that even women who were working under the NREGS were threatened and had to leave their work. The Asianet Broadband office in Kozhikkode was reportedly attacked by some protestors. The Kerala Road Transport Corporation buses were off road. However, a bus going to medical college had been blocked by the protestors. A petrol pump manager and employee had been attacked.

 

But there had been no reports of any action taken against those who had violated the assurance given by the Government to the High Court.

 

Tomorrow, that is 12 Oct 2021, is the 16^th birth anniversary of the RTI Act, for the citizens of India. It is 120 days past the 16^th birth anniversary for the public authorities. The Act had become law on 15 Jun 2005 and the first 120 days were given to the public authorities exclusively to prepare for receiving requests from the citizens for information and maintain all their records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act. Within this first 120 days the public authorities were also required to publish information pertaining to 17 items, listed under Section 4(1)(b) of the Act, from their organization, function and duties to such other information as may be prescribed.

 

So, let me conclude this part with a simple question: has the apex court complied with this mandate till now? To those who claim it has or is under the presumption it would have, let me ask another question: where is the compliance with the requirement of Section 4(1)(b)(x), that is the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations?

 

Today I had visited the website of the apex court and at https://main.sci.gov.in/compliance-under-section-41b-right-information-act-2005 could download a document titled REVISED SCALES OF PAY OF OFFICERS & STAFF OF SUPREME COURT OF INDIA AS PER 7TH CENTRAL PAY COMMISSION. It has given the scales of pay for 13 categories of its officers and employees, starting with the Secretary General at Serial 1 to Junior Court Attendant, Chamber Attendant (R) and Chamber Attendant (T) at Serial 13.

 

I could not find the information pertaining to the judges of the court.

 

Meanwhile, there was a report- ‘Most High Courts Falter on Proactive Disclosures under Section 4 of the RTI Act, Says Report’- dated 16 September 2021 at https://www.moneylife.in/article/most-high-courts-falter-on-proactive-disclosures-under-section-4-of-the-rti-act-says-report/65142.html.

P M Ravindran, raviforjustice@gmail.com, 11 October 2021

JUDICIAL PERFIDIES-3-051021

 

World renowned cartoonist R K Laxman has been quoted as saying that he would never run out of topics for his cartoons so long as the Parliament was in session. It could easily be paraphrased for my writing this series of critiques too. A few of the reports that have appeared in the media in recent times that grabbed my attention are listed below:

 

‘Wanted panel to probe complaints against bureaucrats, police: CJI’, October 2, 2021, https://indianexpress.com/article/india/wanted-panel-to-probe-complaints-against-bureaucrats-police-cji-7547042/

 

‘Can’t be in court & also go on blocking roads: SC to farmers’, Oct 2, 2021, https://timesofindia.indiatimes.com/india/cant-be-in-court-also-go-on-blocking-roads-sc-to-farmers/articleshowprint/86694684.cms?val=1728

 

“ 'Constitutional' Power To Punish For Contempt Cannot Be Taken Away Even By Legislative Enactment: Supreme Court”, 29 Sep 2021, https://www.livelaw.in/top-stories/supreme-court-constitutional-contempt-power-legislative-enactment-182742

 

CPM threatens NREGS employees who gathered for work on hartal day-28/09/2021, Janmabhumi, a Malayalam daily

 

Kerala government assures High Court that those who wanted to work on hartal day (27 Sep 2021) would be given protection and facilities-25/09/2021, Janmabhumi, a Malayalam daily

 

‘SC slams Centre for 'cherry-picking' names for tribunals, directs govt to make appointments in two weeks’, on 15/09/2021, at https://www.firstpost.com/india/sc-slams-centre-for-cherry-picking-names-for-tribunals-directs-govt-to-make-appointments-in-two-weeks-9966641.html

 

‘Surgical Strikes by Judiciary on The Armed Forces’, on 14/09/2021, at https://missionvictoryindia.com/surgical-strikes-by-judiciary-on-the-armed-forces/

 

‘Release our report, it addresses farmer issue: Supreme Court panel member to CJI’, on 08/09/2021 at https://indianexpress.com/article/india/release-our-report-it-addresses-farmer-issue-supreme-court-panel-member-to-cji-7495367/

 

‘Social media full of misleading news, CJI’- on 03/09/2021, Janmabhumi, a Malayalam daily

 

‘Why have collegium at all?’: What Kureshi’s rejection says about SC independence in the Modi era, on 13/08/2021 at https://scroll.in/article/1004168/why-have-collegium-at-all-what-kureshis-rejection-says-about-sc-independence-in-the-modi-era?fbclid=IwAR2VB2msqBoccd6ACLO728Sn4bokQv49NU-LRZayv9gNCBs_fWIbxqk-S6E

 

‘Supreme Court orders reinvestigation of 36 cases against Left MPs and MLAs that had been withdrawn’, on 27/08/2021, Janmabhumi, a Malayalam daily and so on..

 

 

The above list of media reports will give an idea of the mess that we have for rule of law in this country. While I would love to go into each of the reports one by one and deliberate with emphasis on the role of the judiciary, I am constrained by time and space considerations.

 

So where do I start?

 

I have been campaigning, for more than decade now, for the abrogation of the Contempt of Court Act and Article 129 of the Constitution on the simple ground that Contempt of Court is anathema in a democracy and democracy demands a Contempt of Citizen (Prevention of) Act.

 

So, the thrust here will be on analyzing the report at  https://www.livelaw.in/top-stories/supreme-court-constitutional-contempt-power-legislative-enactment-182742

 

The crux of the report is:

 

Referring to Article 129 and 142 of the Constitution, the court observed:

 

"A bare reading of Article 129 clearly shows that this Court being a Court of Record shall have all the powers of such a Court of Record including the power to punish for contempt of itself. This is a constitutional power which cannot be taken away or in any manner abridged by statute... In the context of the aforesaid it was opined that the comparison of the two provisions show that whereas the founding fathers felt that the powers under clause (2) of Article 142 could be subject to any law made by the Parliament, there is no such restriction as far as Article 129 is concerned. The power to punish for contempt is a constitutional power vested in this Court which cannot be abridged or taken away even by legislative enactment."

 

Here are the two articles, reproduced for ease of understanding:

 

129. The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

 

142. (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe. (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

 

I don’t need to indulge in lengthy discussions or debate to prove the apex court wrong.

 

Here is the introduction and the short title of the Contempt of Court Act, 1971, enacted by the Parliament as Act No 70 of 1971, on 24 Dec 1971:

 

An Act to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto.

 

BE it enacted by Parliament in the Twenty-second Year of the Republic of India as follows:—

 

1. Short title and extent.—(1) This Act may be called the Contempt of Courts Act, 1971.

(2) It extends to the whole of India:

Provided that it shall not apply to the State of Jammu and Kashmir except to the extent to which the provisions of this Act relate to contempt of the Supreme Court.

 

That should leave no room for any doubt who is the authority to prescribe and proscribe these powers.

 

Writing in the Mathrubhumi of 10 Nov 2011 (Vidhi prathilomakaram thanne), Adv Kaleeswaram Raj had stated that an extra constitutional, unannounced and invisible emergency is being imposed through our courts and civil society must be alert to this and react effectively. Unfortunately, he has not given even a hint as to how the civil society must react and react effectively at that.

 

But, that is not different from the predicament the renowned jurist Fali S Nariman had experienced while concluding his book: India’s Legal System-Can it be saved? I had bought this book to learn what the legendary advocate had to share with his readers. To say I was disappointed would be putting it too mildly. Here is how he has concluded his book:

 

In this country of ours, the Judiciary is the salt of the earth. My wish for the third millennium is that if it please God, there be no occasion when it is said that the salt has lost its savour, because as the Bible warns us: if the salt ever loses its savour, then wherewith shall it be salted?

 

The erudite lawyer has authored another book subsequently. Its title is ‘God Save the Hon'ble Supreme Court’.

 

Now here is what Sec 13 of the Contempt of Court Act mandates:

 

13. Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force,—

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice; (b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.

 

It would be interesting to have a look at how our courts have been (mis)using this law.

 

We have the unique case of a sitting judge of a high court being sent to prison for 6 months shortly before his retirement. Karnan, while being a judge of the High Court at Chennai had complained about corruption in the court and even about offenses against himself that were punishable under the SC/ST (Prevention of Atrocities) Act. His complaints fell on deaf ears. And he was transferred to the High Court at Kolkatta. Hurt by the indifference of his superior authorities to his complaints which was compounded by his transfer Karnan did what any normal person would do, became more aggressive. Suffice to say that he ended up with a contempt of court charge and was sent to jail for six months. He retired while undergoing the sentence.

 

This case is important because it established one thing, that the greatest crime on this side of the Himalayas is contempt of court. To the best of my knowledge the only punishment that can be given to a high court or supreme court judge is removal from office through impeachment, which is in the domain of the legislature. Even the Constitution Review Commission, aware of the inadequacy of this provision, had suggested withholding of work from a judge who is accused of wrong doing but refuses to voluntarily demit office.

 

In Kerala, a political leader was sent to prison for 6 months on the same charges. His crime? He referred to a judge of the High Court as a dimwit (sumban). Why? It was the Kerala High Court that had held bandhs illegal, more than a decade back. The apex court had upheld that decision and it had become the law of the land. I remember that in Mumbai two political parties were fined Rs 10 lakh each for calling for a bandh. But in Kerala nothing of that sort happened. The literate and politically savvy(?) lot continued to enforce bandhs but just called them hartals. It was under those circumstances that another judgement from the High Court banned all road side meetings too. And that was when this politician referred to this judge as sumban (dimwit). How right or wrong he was is anybody’s guess. But what shocked me was the judge who sentenced him calling him a worm while sentencing him.

 

The recent contempt of court case against Adv Prashant Bhushan must still be fresh in everybody’s minds. For two tweets, he was tried and punished. And the punishment? Lo and behold… he was fined Rupee One. This was paid by him with a coin provided to him by a colleague and with the announcement that it would be challenged.

 

Incidentally, another contempt of court case against him is pending for more than a decade now. And the cause? He had stated that 8 of the 16 Chief Justices of India, who had retired in the immediate past, were corrupt. In this case, his father, the eminent jurist Shanti Bhushan had also joined him. Any guess why this case is dragging on with no end in sight?

(Hear Prashant Bhushan at https://www.youtube.com/watch?v=SYh727MBBXk and https://www.youtube.com/watch?v=rm8TMrWCQNM)

 

Just for the records, long before Prashant Bhushan made this allegation, a sitting Chief Justice of India had publicly stated that 20 percent of judges in the lower judiciary were corrupt. While it is not known how he came by this figure and what measures had been introduced to eradicate this corruption in lower courts, the pertinent question is wouldn’t this allegation by the then Chief Justice of India have dented the image of the institution of judiciary?

 

Let me conclude this part with a joke that had been viral on social media.

 

Elephant asked--Why are you running?

Buffalo: They are arresting all cows.

Elephant: But you are not a cow?

Buffalo: Correct, but it will take at least 20 years to prove that in an Indian court!

The Elephant started running!

 

P M Ravindran

05 Oct 2021

raviforjustice@gmail.com

 

JUDICIAL PERFIDIES-2

 

Are our courts- Courts of Law? Courts of Justice? Or, just Courts of Judges and their whims and fancies? My experience and studies tell me that they are Courts of Judges and their whims and fancies. About my experiences later.

 

In Part 1 of this series I had analyzed how a judge who had retired on attaining the age of 62 years on the eve of his 63^rd birthday (62^nd birth anniversary) claimed an enhancement of pension, due on attaining the age of 80 years, from his 80^th birthday (79^th birth anniversary) on the ground that he had entered 80^th year of age that day. He won his case in the Gauhati High Court, where he had been an Acting Chief Justice earlier, and that decision was upheld by the apex court too, without much ado.

 

So, let me begin this part with another case involving date of birth. General V K Singh, who had retired as the Chief of Army Staff, before joining politics and is currently a Minister of State in the Narendra Modi led Government, had joined the National Defense Academy on passing his Matriculation Exam but before he got his certificate. His school head had filled up the application and there was an error in the year that had been filled in. By that he was one year older than he was. His father had been an army officer and he had had his birth in a military hospital. There was no way that there could be any confusion in the actual date of birth. Anyhow, this error was noted even when he was in the NDA and corrected. All his subsequent documents had this correct date of birth.

 

During the Man Mohan Singh led Government at the Centre, General V K Singh was a Lieutenant General and was in the run for commanding an Army Command, in the same rank. It was then that his date of birth became an issue. Somebody brought out the fact that the date of birth in the application he had submitted while joining the NDA showed him to be one year older. His boss summoned him and said that this duplicity in his date of birth records would cost him his higher appointment unless he accepted the older age. It was certainly a weird demand because we all know that the Matriculation Certificate (now the Secondary School Leaving Certificate) is the acknowledged proof for date of birth for all official purposes and as per that document and all his other official documents his date of birth was, legally, crystal clear. Sensing the mood of the moment, Lt Gen V K Singh, reportedly gave an undertaking, in writing, that he would accept the decision of his superior officer if it was in the interest of the nation/service.

 

He went on to become the Chief of Army Staff and got on the wrong side of the then Government due to many reasons, including the effort to bribe him in the purchase of Tatra Vehicles which he had himself brought to the notice of the then Defense Minister and demanded a CBI inquiry. And then there were planted reports in the media of a move by the army to stage a coup and moving its columns to Delhi. The General himself has narrated, in his book ‘Courage and Conviction’, how he had refused to deploy the army in Chattisgarh to counter naxals. Whatever be those reasons, the government now wanted him out and retire as per his date of birth that was mentioned in his application for joining NDA. But instead of showing how it would be in the interest of the nation what was projected was a chain of succession theory, whatever that was. And for the first time a Chief of Army Staff took his Government to court on the simple issue of his date of birth. Shockingly, the apex court rejected his petition on the specious ground that he had accepted his official date of birth as that which had been mentioned in his application to join NDA.

Replying to media persons, who had sought his reaction to the judgement, he had said that he did not get justice. Thereafter, another media report informed us that the court had threatened him with a contempt of court case.

 

One of my favorite quotes about the judiciary is from the Report of the National Commission for the review of the working of the Constitution (popularly known as Constitution Review Commission, CRC, for short). Before I reproduce that quote, here is the composition of this Commission.

 

The 11 member commission was headed by a former Chief Justice of India, M N Venkatachaliah and of the remaining 10 members, 3 (B.P. Jeevan Reddy, R.S. Sarkaria and Kottapalli Punnayya) had been judges of the Supreme Court/High Courts, 2 (Soli J. Sorabjee and K. Parasaran) were senior advocates, 2 (P.A.Sangma and Sumitra G. Kulkarni) were political nominees, 2 (Dr.Subhash C. Kashyap and Dr. Abid Hussain) had been bureaucrats and just one (C.R. Irani) was a representative from the media!

 

This commission had reported that 'Judicial system has not been able to meet even the modest expectations of the society.  Its delays and costs are frustrating, its processes slow and uncertain.  People are pushed to seek recourse to extra-legal methods for relief.  Trial system both on the civil and criminal side has utterly broken down.' Also, 'Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice'.

 

For me it is not just a quotable quote. It is the truth, the whole truth and nothing but the truth.

 

We all know how the apex court had trashed the National Judicial Appointment Commission Act. But even those who know this may not know how the judiciary had usurped this power from the Executive. We shall go through that later.  For now, let us look at what the CRC had suggested for appointing judges to our higher courts.

 

This is what Dr Subash Kashyap, one of the two bureaucrats, has recorded in his Notes:

 

Attention is also invited to the decision taken by the Commission at its 14th Meeting held on 14-18 December 2001.  Para 16 of the minutes records that "There shall be a National Judicial Commission for making recommendation as to the appointment of a Judge of the Supreme Court (other than the Chief Justice of India), a Chief Justice of a High Court and a Judge of any High Court."

 

"The composition of the National Judicial Commission would be as under:

a) The Vice-President of India

b) The Chief Justice of India

c) Two senior-most Judges of the Supreme Court, next to the Chief Justice

d) The Union Minister for Law & Justice."

 

However, the composition of the NJC as recommended by the Commission in its Final Report is:

 

 

 

 

The National Judicial Commission for appointment of judges of the Supreme Court shall comprise of: -

(1) The Chief Justice of India                              

(2) Two senior most judges of the Supreme Court 

(3) The Union Minister for Law and Justice                   

(4) One eminent person nominated by the President after consulting the Chief Justice of India

 

One needs to observe the following:

-          The Commission was to be headed by the Vice President. It has been changed to the Chief Justice of India

-          The Union Minister of Law continues to be a member

-          One eminent person, nominated by the President after consulting the Chief Justice of India, has been brought in as a member in the place of the Vice President who was to be Chairperson.  

 

Now, those who know the history of how the unconstitutional Collegium, for appointment and transfer of judges of our higher courts, became institutionalized, may be able to understand the subterfuge involved in the last proposition.    It had begun with the apex court’s invention of a new meaning for the commonly understood word ‘consultation’ in Article 124(2) of the Constitution. It states:

 

Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years:

Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted:

 

All the dictionaries I have consulted on line- Cambridge, Collins, Merriam Webster and Oxford- all provide the same meaning for consultation, that is A meeting with an expert, such as a medical doctor, in order to seek advice. Nowhere has it meant that such advice would be binding on the one who seeks the advice. But that is exactly what the apex court declared while beginning to usurp the powers of the Executive to appoint judges of the high courts and the apex court.

 

But that is not the end of the narrative.

 

Dr Subash Kashyap had summed up the work of the Commission itself as:  'While no comments are being made on what went wrong in the procedure, priorities and perspective, it may be put on record that several of the recommendations now forming part of the report go directly counter to the clear decisions of the Commission on which the unanimously adopted draft report of the Drafting and Editorial Committee was based'.

 

And Ms Sumitra Kulkarni, one of the two politicians and the only woman member in the Commission, has concluded as follows:

 

1. I believe in a Unified and truly Secular India.  However, the Commission debates seemed often to reduce the Constitution to being a platform for divisiveness and not unification.

2. The Commission did not initiate or promote sincere debate in the public with regards to the issues that it was contemplating.  The efforts was more to "evade and defer" instead of to "identify issues, table them for debate and to deal with them".

 

Just for the record- M N Venkatachaliah does not figure in the list of 8 corrupt Chief Justices of India, which Adv Prashant Bhushan had submitted to the apex court. (https://www.outlookindia.com/website/story/eight-of-the-last-sixteen-chief-justices-of-india-were-definitely-corrupt/267128 )

 

Before concluding this part, let us recapitulate how the unconstitutional Collegium for appointment judges of the high courts and the Supreme Court became institutionalized. This is the essence of a report that appeared on 15 Sep 2019 in The Hindu at https://www.thehindu.com/news/national/why-is-the-collegium-of-judges-in-the-spotlight/article29418574.ece:

 

The ‘First Judges Case’ (1981) ruled that the “consultation” with the CJI in the matter of appointments must be full and effective. However, it rejected the idea that the CJI’s opinion, albeit carrying great weight, should have primacy.

 

The Second Judges Case (1993) introduced the Collegium system, holding that “consultation” really meant “concurrence”. It added that it was not the CJI’s individual opinion, but an institutional opinion formed in consultation with the two senior-most judges in the Supreme Court. On a Presidential Reference for its opinion, the Supreme Court, in the Third Judges Case (1998) expanded the Collegium to a five-member body, comprising the CJI and four of his senior-most colleagues.

 

High Court judges are recommended by a Collegium comprising the CJI and two senior-most judges. The proposal, however, is initiated by the Chief Justice of the High Court concerned in consultation with two senior-most colleagues. The recommendation is sent to the Chief Minister, who advises the Governor to send the proposal to the Union Law Minister.

 

For other judges of the top court, the proposal is initiated by the CJI. The CJI consults the rest of the Collegium members, as well as the senior-most judge of the court hailing from the High Court to which the recommended person belongs. The Collegium sends the recommendation to the Law Minister, who forwards it to the Prime Minister to advise the President.

 

In 2014, through the Constitution 99^th Amendment Act, a National Judicial Appointments Commission was constituted with the CJI as Chairman, 2 senior-most judges of the apex court, Union Law Minister and 2 eminent persons as members. These eminent persons were to be selected by a committee comprising of CJI, Prime Minister and Leader of the Opposition/single largest party in Opposition and one of them must be from the SC/ST or OBC category or a woman.

 

 It was struck down by the apex court in 2015 claiming it was unconstitutional. Looks like ‘constitutional’ also has been redefined by our learned judges.

 

P M Ravindran

raviforjustice@gmail.com

21 Sep 2021