Saturday 6 November 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

 

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