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
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