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reinvestigation of 36 cases against Left MPs and MLAs that had been withdrawn’,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
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