Saturday 6 November 2021

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 16th birth anniversary of the RTI Act, for the citizens of India. It is 120 days past the 16th 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

No comments:

Post a Comment