Dr. D.C. Saxena Vs. Hon'ble The Chief Justice of India [1997] INSC 607 (19 July 1997)
K.
RAMASWAMY
ACT:
HEADNOTE:
K.
Ramaswamy, J.
In a
clash of competing interests in constitutional contours, this case calls to
strike a balance between the freedom of speech and expression, a salutary right
in a liberal democratic society and paramount countervailing duty to maintain
public confidence in the administration of justice. The petitioner has
initiated public interest litigation under Article 32 of the Constitution to
direct Sri P.V. Narasimha Rao, the President of Indian National Congress and
the former Prime Minister of the country to pay a sum of Rs.8.29 lakhs and odd
said to be due to the union of Indian for use of Indian Air Force aircraft or
helicopters from October 1, 1993 to November 30, 1993. When writ Petition No.
432/95 was posted for hearing on July 17,1995 before the learned Chief Justice of India and brother
Justice S.C. Sen the solicitor General for India, Shri Dipankar P. Gupta was sent for and the Court directed him to have
the averments verified to be correct and directed the petition to be listed
after two weeks. On August
7,1995, the writ
petition came before the Bench comprising the learned CJI, Justice S.C. Sen and
Justice K.S. Paripoornan. It is not in dispute that the Solicitor General had
placed the record before the Court and upon perusal thereof and after hearing
the petitioner-in-person, the Bench summarily "dismissed"" the
writ petition which had triggered the petitioner to file yet another writ
petition, this time against the learned Chief Justice of India, Justice A.M.
Ahmadi. The Registry raised objections for its maintainability but, at eh
insistence of the petitioner, it was posted, with office objections, for
hearing, as unregistered Writ petition (c) NO. -17209/95 on January 13,1996 before a Bench of three learned
Judges, viz. Justice J.S. Bharuchal. The petitioner, again appearing in person,
persisted to justify the averments made against the learned CJI, Justice A.M.
Ahmadi in the writ petition. In spite of the Court having pointed out that the
averments were scandalous, the proceeding of the Court did indicate that the
petitioner reiterated that he "stood by the averments made therein"
and sought for declaration [1] that Justice A.M. Ahmadi is unfit to hold the
office as Chief Justice of India; [2] that he should be tripped of his
citizenship; [3] to direct registration of an FIR against him under various
provisions of Indian penal Code for committing forgery and fraud and under the
prevention of Corruption Act; (4) to direct prosecution of him under the
prevention of Corruption Act; (5) to direct him to defray from his personal
pocket the expenses incurred by the petitioner in filing the two writ
petitions, i.e., W.P. No. 432/95 and the second writ petition; (6) to direct
justice A.M. Ahmadi to reimburse from his pocket to the public exchequer the
entire loss caused to the State,. as a consequence of non-payment of the dues
by Sri P.V. Narasimha Rao with interest at 18% per annum and (7) other
consequential directions.
After
hearing the petitioner, the Bench dismissed the second writ petition with the
order as under:
"The
several averments in the writ petition are scandalous and it is surprising that
the petitioner, who is said to be a Professor in a University, has chosen to
draft and file such a writ petition. His understanding of the meaning of
Article 32 of the Constitution, is to say the least, preposterous. The
allegations made are reckless and disclose irresponsibility on the part of the
petitioner. This writ petition is wholly misconceived and is an abuse of the
process of the Court. The writ petition has no merit.
The
writ petition is, therefore, dismissed.
In
view of the attitude of the petitioner even at the hearing, when the persisted
in this stand and, on our asking him, reiterated that he stood by the
scandalous averment made therein, we consider it our duty to issue to the
petitioner a notice to show cause why proceedings to punish him for contempt of
this Court should not be initiated against him. The Registry to take the
necessary steps for registering the matter as a contempt petition. The
petitioner who is present-in-person is given notice of the contempt petition.
He is required to file his reply within four wheels to show cause why
proceedings for contempt should not be initiated against him. We request the
learned Solicitor General to assist the Court in this contempt matter.
List
the matter after notice of the date fixed by Registry is given to Dr. D.C.
Saxena and the Solicitor General." While dismissing the petition, this
Court observed in the later part of the order the petitioner's conduct in his
persistence to stand by the scandalous averments made against the learned Chief
Justice of India. This Court was constrained to initiate contempt proceedings
and enlisted 14 instances which would prima facie constitute contumacious
conduct of the petitioner to scandalise the Court. In the meanwhile, the
petitioner wrote in a newspaper criticising Justice J.S. Verma. Resultantly,
Justice J.S. Verma reclused himself from the Bench. Thus the matter was posted
before this Bench.
On April 12,1996, the petitioner filed his reply to
the show cause notice styling the same as "preliminary submissions"
and reiterated his averments, which, as pointed by this Court, would constitute
scandalisation of the Court and yet he had given his justification for accusing
the chief Justice of India. However, at the end, as a
foot-note, he has written in his own hand-writing as under:
"N.B.
If some passages seem strindent or pungent, the defendant is willing to
suitably modify them." On April 14,1996,
this court passed the order as under;
"Pursuant
to the notice issued by this Court the Contemnor Dr. D.C. Saxena is present
today in person.
He has
stated that he would modify the offending portions noted in the show cause
notice in Item (ii),(iv) (vi), (vii), (viii), (x),(xii),(xiii) and wishes to
withdraw unconditionally item (xiv), paras B and C.
The
learned Solicitor General has pointed out that even if the Contemnor withdraws
or files statement in the modified form what the Court required to do is
whether his statements made in the writ petition originally filed constitute
contempt of the Court or not statements would not be of material relevance for
consideration. Since the contemnor seeks time to submit the show contemnor
seeks time to submit the show cause in the modified language which he wishes to
place before the court, at his request the matter is adjourned to may 2,1996 at
2.00 p.m. The Registry is directed to supply complete set of papers to learned
solicitor General." When the case came up for hearing on May 2, 1996, the petitioner filed amended portions to substitute
the averments made, at proper places, in the second unnumbered writ petition.
We have heard learned Solicitor General as amicus curiae and the
petitioner-in-person. Before opening the case, the solicitor General, in view
of the seriousness of the averments made by the petitioner in the petition
filed against the chief Justice of India, and in view of his stand in both the
preliminary submissions to the contempt notice and the revised averments made
in the writ petition, suggested that it would be advantageous for the
petitioner to have consultation and legal assistance of any counsel of his
choice and to revise his stand, but the petitioner remained silent and got
along with the case.
The
learned solicitor General stated that on July 17, 1995, the Court had sent for and called
upon him to have the allegations made in the first writ petition, verified and
to place the factual position before the Court. Pursuant thereto, on August 7,1995, he had placed the record before
the Court which are confidential in nature. After their perusal and hearings
the petitioner, the Court did not think it necessary to issue the directions as
sought for. At this stage, we would point out that when Sri P.V. Narasimha Rao,
as president of Indian National Congress or as the former prime Minister, was
alleged to have used the defence aircrafts, this Court obviously was of the
view that the relationship between the two wings of the Government or the
political party, i.e., the Indian national Congress is of debtor and creditor
and that, therefore, prerogative writ under Article 32 of the Constitution
would not lie to enforce contractual dues adjustable as per their practice.
The
exercise of the power under Article 32 was, therefore, obviously thought to be
uncalled for. Supreme Court being the highest Judicial forum, the need to
record reasons is obviated since there is no further appeal against the order
of this Court. Recording reasons is not, therefore, necessary nor is called
for.
The
learned solicitor General, therefore, contended that when the Court dismissed
the writ petition, the petitioner, being a professor of English in Chandigarh University, should have exercised restraint and felt duty- bound not
to proceed further in the matter. Instead, he filed the second writ petition
with allegations which are ex-facie contumacious. The petitioner reiterated the
same in his preliminary submissions to the notice of the contempt.
His
modified statement filed on April 24,1996
itself is not relevant. What would be material and relevant for consideration
is whether the allegations made against the learned Chief Justice of India in
the Second Writ petition do constitute contempt of the Court. The modified
stand, therefore, is not relevant to adjudge whether the petitioner has
committed contempt of this Court. The Court, therefore, has to consider the
totality of the averments and their effect on the judicial process to adjudge
the conduct of the petitioner to be contumacious. The petitioner contended that
he did not seek any personal gain for himself. As a duty- bound citizen, he was
actuated to see that the public dues are recovered from any person how-so-high
he may be. To the best of his understanding, the petitioner made the averments
for public good and he has no intention to scandalise the Court. He had
approached this Court earlier more than 12 times to vindicate public justice.
As a human being, he is fallible but he has no intention to denigrate the Court
to which he has highest respect. His modified language in the statement filed
on April 24,1996 does indicate his intention.
In the
proceedings of the Court dated July, 17,1995, it was recorded that the
Solicitor General had appeared for Sri P.V. Narasimha Rao who was impleaded in
his personal capacity. It is the petitioner's contention that the solicitor
General cannot appear for him. He was not assisting the Court as amicus. When
the Chief justice called for the records from the Government through solicitor
General, it is Court's duty to give him copies of those documents but the same
were denied to him. It is his xiv) Page 9 prayer (a) Declare the respondent unfit
to hold office as chief Justice of India;
(b)
Strip the respondent of his citizenship;
(c)
Direct the registration of an F.I.R. against the respondent under the Indian
penal Code for committing forgery and fraud;
(d)
Direct the respondent's prosecution under the prevention of corruption Act.
The
alleged contemnor filed written submissions in reply to the contempt notice.
His first submission was that the Bench which had heard and dismissed the
second writ petition had been constituted by the respondent, who had thereby
become a judge in his own cause. The second writ petition was, accordingly, not
listed before a court, competent to dispose it of, so that the order of its
dismissal was non est, and it was still deemed to be pending. The contempt
notice was, therefore, premature. The written submissions then dealt with the
portions of the second writ petition which had been indicated in the contempt
notice and reiterated the same, except only that it was submitted that the
allegation about fabrication of the court proceedings of 7th August, 1995, was "somewhat unhappily
would". It was submitted thereafter that the contempt of Courts Act was a
legacy of British imperialism and, while appropriate to a "banana
republic", was imcompatible with a democratic, people's polity; it was a
law-less law because it fused the offices of the prosecutor and the judge and
"belongs with the infamous Spanish inquisition". After his signature
at the foot of the written submissions, the alleged contemnor added in hand,
"N.B. If some passages seem strident or pungent, the defendant is willing
to suitably modify them." The contempt notice came up before this Bench on
15th April, 1996. The following order was then
passed;
"Pursuant
to the notice issued by this court the Contemnor Dr. D.C.. Saxena is present
today in person.
He has
stated that he would modify the offending portions noted in the show cause
notice in Item (ii),(iv),(vi), (vii),(viii),(x), (xi),(xii),(xiii) and wishes
to withdrew unconditionally item xiv, paras B and C. The learned Solicitor
General has pointed out that even if the Contemnor withdraws or files statement
in the modified form what the Court required to do is whether originally filed
constitute contempt of the statements would not be of material reliance time to
submit the show cause in the modified Court, at his request eh matter is
adjourned to may 2,1996 at 2.00 P.M. The Registry is directed to supply
complete set of papers to learned Solicitor General." extract the relevant
portions supplied to him by show cause and his reply thereto and of preliminary
submissions and his modified statement as a substitution to the averments made
in the second writ petition and the effect thereof. In respect of the averments
made in the offending portions of item 1,3, 5,9,13 and 14(a) and (d), the
petitioner stood by them. He submitted his modified statement on April 24,1996 only for the rest of the
statements. Let us first consider the unmodified averments before examining the
original and the modified averments.
The
first averment made at page 4 in paragraph 9 is that "it was improper for
justice Ahmadi to hear it". Item 3 at page 6 in paragraph 14 is: "To
this Justice Ahmadi responded that he (the solicitor General) was there to
assist the Court, contrary to the evidence of the court proceedings". Item
5 relating to the averments made in page 6 in paragraph 17 is; "the
subsequent course of action by Justice Ahmadi, in dealing with the grouse of
the petitioner and dismissing his petition is totally unjust, unfair, arbitrary
and unlawful. It is in flagrant violation of the mandates of Article 14 of the
constitution, which "runs like a golden thread" through it ad is the
foundation of justice and fair play". Item 9 relating to the averments
made at page 8 in paragraph 18(f) is: "what are the legal consequences of
the violation of the sacred oath of office by justice Ahmadi?" Item 14(a)
relating to the prayer portion is: "declare the respondent (justice A.M.
Ahmadi) unfit to hold office as Chief Justice of India" and item 14(d) is:
"Direct the respondent's (Justice A.M. Ahmadi's) prosecution under the
prevention of Corruption Act." The petitioner in his affidavit filed in
support of the second writ petition has stated in para 2 thereof thus: "I
am actuated purely by national interests and no personal gains and have
truthfully and carefully stated the facts (emphasis supplied), in pursuance of
my fundamental duties, which can be effectively performed only through the
fundamental rights enjoyed as a citizen of India." In his preliminary
submissions, he has stated that the writ petition under Article 32 shall be
heard by a Division Court of not less than 5 Judges. Emphasis was added by the
petitioner himself.
Since
the writ petition was not listed before a Court components to dispose of the
same, it made the order of dismissal non est and it should be deemed to be
pending and is "not yet decided and disposed of constitutionally". No
contempt proceedings can, therefore, be initiated. The notice is , therefore,
pre-mature. Constitution of the Bench by the chief Justice is in violation of
the principles of natural justice as no one can be a judge of his own cause.
Justice
"should not only be done but should manifestly and undoubtedly seem to be
done. nothing is to be done which creates even a suspicion that there has been
an improper interference of the course of justice.", he quoted the above
statement of Lord Heward, C.J. Regarding Item 1 referred to hereinbefore; he
justified the imputation stating that no person can be a Judge in his own cause
directly or indirectly. In spite of his objection, the respondent (CJI) chose
to constitute the bench himself as a presiding judge.
According
to the petitioner the word " improper", therefore was used in that
perspective, with regard to the averments made in Item 3, his reply was that
the Court proceedings dated July 17,1995 recording that the solicitor General,
Shri Dipankar Gupta appeared in his official capacity to Sri P.V. Narasimha
Rao, a private party. He had stated that even assuming, though not conceding,
that he (Solicitor General was acting as amicus curiae also was not recorded in
the Court proceedings. Therefore, his comment that CJI had Fabricated false
record is fair and an accurate report of the court proceedings protected under
section 4 of the Act.
With
regard to Item 5, he states thus: " This is a reaffirmation of an
unimpeachable legal proposition in the most widely-prevalent legal phraseology,
to which no umbrage can be taken, for by this logic all petitions containing
this phrase would be deemed contemptuous. Even the part of the quotation is
from a leading decision of this Hon'ble Court in Maneka Gandhi's case." With regard to averments
made in item 9, he justified it stating that "this again is an unresolved
question of great legal significance and he cited as analogy of Mr.
Fazlul
Huq, then Chief Minister of Bengal and
quoted a passage from a special Bench decision of the Calcutta High Court in
R.C. Pollard v. Satya Gopal Majumdar [A.I.R. 1943 Cal. 594 (605)]. He added
special emphasis to the words "the clear violation of it brands a man as
unfit for public office" and stated that it is a legal question of
substantial importance relating to the violation of oath of office, contained
in the Third Scheduled of the Constitution and it cannot be disposed of by a
three judge Bench. It cannot be considered as personal imputation against the
judge. With regard to imputation and prayer (a) in item 14, he says that the
analogy he had taken from the Calcutta High Court decision. It was natural
corollary to the legal proposition considered by a constitution Bench. with
regard to prayer (d) in Item 14, he states that this is only a prayer for
relief sought. The defence taken in relation to (xiv)(b) and (c) would equally
be applicable and so he has reaffirmed them to be correct. The allegations,
therefore, are neither "reckless" nor do they "disclose
irresponsibility" (put within inverted comma by the petitioner himself)
and is not "an abuse of the process of the Court." He reiterated that
"several averments in the writ petition" being truthful, factual, and
made without rancour or malice and for no personal, gain, should not be
construed "scandalous" (inverted commas were put by the petitioner
himself).
Let us
now consider other imputations, in the language of petitioner himself with
regard to the "truthfully and carefully" stated facts. At page 5 in
para 10, the petitioner has stated that "Justice Ahmadi's utmost
reluctance to perform his fundamental duties and constitutional obligations was
apparent. when after failing to browbeat the petitioner, he stated that it
would be taken up at the end of the cause list." in his preliminary
submissions he has stated that "this is a fair and accurate submission of
the Court proceedings on matter which had already been "heard and finally
decided"."(inverted commas were put by the petitioner himself). He
sought protection to it, as a fair comment, under Section 4 of the Act. He
further justified it stating that even the use of the would "browbeat"
by the petitioner is a "fair criticism of judicial act" (inverted
comma was put by the petitioner himself) to imply that proper hearing was not
being granted to the petitioner who had approached the highest Court of the
land to 'Protect and safeguard public property". he justified them as a
"statement of truthful facts", for public good should not be
construed as disrespect to the Hon'ble Court. After offering justification in
his modified statement, he reiterates thus: "The petitioner discerned
reluctance on the part of the presiding judge to allow the relief claimed,
which was in public interest, and actuated by the desire to "Preserve and
protect public property," without any personal malice." It would,
thus, indicate that the petitioner imputed motives to Justice A.M. Ahmadi,
chief justice India, in the discharge of his constitutional duty and that by
not admitting the writ petition or dismissing the petition, the CJI was
reluctant to perform his constitutional duty. He knew that the word
"browbeat" is a strident imputation to the Court and, therefore, in
his modified reluctance". Even in the modified statement, he attributed
motives to CJI in the performance of his constitutional duty while the Bench
that dismissed the first writ petition consisted of three judges. By inference,
he suggested the other brother Judges to be mere non-entity.
With
regard to item 4 at page 6 in para 15, he imputed to the CJI that "and
without recording the reasons for dismissing the petition. So much for the
vaunted adherence to the twin principles of transparency and
accountability." In his preliminary submissions, he has given
justification for his attributed motives to CJI stating that the Solicitor
General handed over some documents to the bench, without supplying the copy
thereof to the bench, without supplying the copy thereof to the petitioner.
When he had objected to it in his own language, he avers that "justice
Ahmadi asked him to argue on the supposition that nothing had been given to the
bench. In view of this, reference has been made to the "twin principles of
transparency and accountability which", according to the petitioner,
"is a fair and accurate report of court proceedings, which is also for the
"public good"." (inverted commas were put by the petitioner
himself). In the modified statement he stated thus: "That justice Ahmadi
ultimately dismissed the petition, observing that the Government of India was
capable to realise the dues from Shri Rao (which it had no to done in two
years) and without recording the reasons for dismissing the petition, for which
lapse it has often berated High Courts, in pursuance of the twin principles of
transparency and accountability". It would, thus be seen that as regards
this imputation, the petitioner gives justification that there was omission to
record reasons for dismissal of the writ petition; he imputed to CJI that the
CJI facilitated Sri Narasimha Rao to avoid payment of public dues. The act of
the Court was not transparent. According to the petitioner, it is a lapse on
the part of the Court for which the Court conduct, by implication, was not
transparent and the Court must be accountable.
Item 6
at page 7 in paragraph 18(c) reads thus: "For causing fabrication of
courts proceedings of 7th August, 1995, and not mentioning the fact of appearance
of the solicitor General, would justice Ahmadi not be liable to prosecution
under the relevant provisions of the Indian penal code in consonance with the
time-honoured maxim, `Be you ever so high, the law is above you"?"
(inverted commas were put by the petitioner himself). In his preliminary
submissions he stated that "Although somewhat unhappily worded, it is one
of the substantial questions of law, which needed to be determined by a
constitution Bench of the apex court". According to him, above maxim is
one to which this court has repeatedly stated to have avowed allegiance. In his
modified version, he stated thus: "For inaccurate recording of the court
proceedings of 7 August, 1995, and not mentioning even the fact of appearance
of the solicitor General for the respondent, what responsibility would ensue on
the presiding judge, who dictated them?" It would, therefore, in the
language of the petitioner, be "discernible" difference of the
imputation as originally made in the writ petition and reiterated in his
preliminary submissions and its impact was understood by the petitioner.
Therefore,
he made the amended version imputing responsibility to justice Ahmadi
personally for the so called inaccurate recording of the Court proceedings and
stated that the CJI should be prosecuted for the record said to be falsely
recorded by CJI after fabrication and it is a fraud and CJI is liable for
prosecution for fraud etc.
Item 7
at page 6 in paragraph 18(d) reads thus; "can justice Ahmadi be allowed to
take shelter behind the cloak of the judicial immunity, in the facts and
circumstances of the instance case, particularly when unlike the president of
India, who cannot be impleaded in Civil or criminal proceedings "during
his term of office," CJI enjoys no such constitutional protection?"
In his preliminary submissions, he stated that this is yet another
constitutional conundrum which needed to be resolved by a constitution Bench of
the Hon'ble Court under Article 145(3) read with Supreme Court Rules. According
to the petitioner "Crucial to it are "the facts and
circumstances" (inverted commas were put by the petitioner himself)
spelled out earlier". implicitly conferring immunity on the congress
president, Sri P.V.
Narasimha
Rao, from laws of the land do not apply. Is this not a negation of all that the
constitution holds sacred?" In the modified version, he stated thus
"when under the Constitution Judges of superior courts do not, unlade the
president of India, enjoy total immunity during their term of office, can the
presiding judge, be allowed to make such a claim for wrong doing?"
(Emphasis supplied). He, thus, imputed to the chief justice of India, Justice
Ahmadi motives that CJI allowed Sri Narasimha Rao, Congress president, to avoid
payment of dues causing loss to the national exchequer treating him as a class
by himself and the CJI neglected to perform the constitutional duty which he
holds sacred which is a wrong-doing. therefore, chief Justice of India should
not be allowed to take judicial immunity and is liable to criminal prosecution
even during his term of office as CJI.
Item 8
of the imputation at page 7 in para 18(e) reads thus; "for willfully and
advertently violating (emphasis supplied) the fundamental rights of not only
the petitioner as an individual, but that of the people of India, who are
ultimately sovereign, as stated in the preamble to the Constitution, has not
justice Ahmadi forfeited any legal protection, even if it were available to
him?" In his preliminary submissions, he has stated that "The first
part of the sentence is based on the implicit constitutional provisions and in
fact shows that the petitioner/defendant looks upon the apex court as the
guardian of his fundamental rights and those of the voiceless millions. The
second part raises a constitutional question, which needed determination by an
appropriate bench." In the amended version, he reiterated that "for
violating the fundamental rights of not only the petitioner, as an individual,
but also that of the people of India, who are the ultimate sovereign, as stated
in the preamble to the Constitution, has not justice Ahmadi sent wrong signals
tot he entire judiciary of which he is the head". In this paragraph, it is
clear that the petitioner knew the distinction between the imputation as originally
attributed to the Chief justice of India as Head of the Institution, i.e.,
Judiciary and reiterated in his preliminary submissions that CJI
"willfully" and "advertently" violated the petitioner's and
people's fundamental right to redressal by wrongful dismissal of the writ
petition. He knew its indelible effect on the public confidence in the efficacy
of judicial dispensation and propriety of the judicial process. When they read
the imputation, he attributed to the Chief Justice that CJI willfully and
advertently violated the fundamental rights of the petitioner and other people
in dismissing the writ petition. Thereby, justice Ahmadi forfeited legal
protection of law, if it were available to him and he stated in his modified
version that the action of Chief Justice of India sent wrong signals to the
entire judiciary of which he is the head. In other words, it would imply that
CJI as judge and as head of the institution committed misconduct.
Imputation
10 made at page 8 in paragraph 18(g) reads thus: "For deliberate and
willful failure to perform his fundamental duties and stultifying their
performance by the petitioner, should not justice Ahmadi be stripped of his
citizenship, because duties alone can confer the corresponding legal and constitutional
rights?. In his preliminary submissions, he has stated that this is also a
constitutional question needed to be interpreted on the ambit and
enforceability of fundamental duties in Article 51-A; it should not be
considered by a Division bench.
"Moreover,
this is a logical corollary of the foregoing question of law. It is
respectfully reiterated that a question of law is not a personal imputation or
insinuation." In his modified version, he has stated thus:
"For
failure to perform his fundamental duties and impeding their performance by the
petitioner, should not justice Ahmadi be regarded as accountable to the people
of India, because duties alone can confer
the corresponding legal and constitutional rights?" In this behalf, it is
clear that the petitioner is well conversant with the effect of "a
personal imputation and the negation". He attributed that Justice Ahmadi,
Chief Justice of India deliberately and willfully failed to perform his
fundamental duties by dismissing the first writ petition and stultified the
performance of the duty by the petition and stultified the performance of the
duty by the petitioner. Thereby Justice Ahmadi "be stripped of his
citizenship". He also knew that for exercise of legal or constitutional
rights one owes corresponding duties. The person who fails to perform the duty
is accountable to the people. CJI willfully, in other words, deliberately with
supine indifference dismissed the writ petition. CJI does not get legal
protection but also forfeits his citizenship.
Imputation
11 at page 8 in paragraph 18(h) reads thus:
"For
allowing his son who is a practising in the Supreme Court, to stay with him in
his official residence, and presumably in the supreme Court, to stay with him
in his official residence, and presumably misusing official facilities and
prestige of office of chief Justice of India, is not Justice Ahmadi liable to
be prosecuted under the prevention of corruption act, in view of the ratio
decidendi of Veeraswami's case?" In his preliminary submissions, he reiterated
that this is a question law based on information he had received from
"public documents"(inverted commas were put by the petitioner
himself) from an Article which was said to have appeared in "India
Today", with Justice Ahmadi's photograph and yet another one said to have
been published in "The Times of India", authored by a woman senior
Advocate of this Court. He states that "It is widely talked in legal
circles that apart from being favoured in appointment on local commissions (by
the Delhi High Court) Justice Ahmadi's son (and daughter also) are very often
assigned government briefs". In support of his imputation, he seeks
justification from the observation made by this Court in C. Ravichandran Iyer
V. Justice A.M. Bhattacjarkee & Ors. [(1995) 5 SCC 457] of transparency of
the conduct of the Judge on and off the bench. He further added that "the
criminal contempt application of one M.P. Shorewala against the
petitioner/defendant was got filed and in gross violation of statutory
provision (mentioned in the office report) was got listed next to the
petitioner's civil writ petition on the same day. i.e., 30th January, 1996, for reasons which need no
dilation'. The petitioner had not modified in his modified version, though he
undertook to do so. He stood by the above imputation and reiteration with
further justification in that behalf made in his preliminary submissions. we
may observe here itself that personal imputation against the chief Justice of India, Justice Ahmadi of allowing his son
to practise in the supreme court is false. His permitting his son to reside in
his official residence said to be in abuse of his official position has no
relevance to the first writ petition relating to the recovery of the alleged
arrears said to be due from Sri P.V. Narasimha Rao. During the course of
hearing, when it was pointed out to the petitioner that as a fact the son of
justice Ahmadi is not practising in the Supreme Court and that the above
imputation has no rational connection to the first writ petition and of the
necessity to allege them in the second one, no answer was given by the petition
and of the necessity to allege them in the second one, no answer was given by
the petitioner. He sought to justify it on the basis of the reports said to
have been published in the newspapers. When we further inquired from him
whether he made any independent inquiry in the matter or on the accuracy of the
newspaper publications, he stated that he relied upon the above statements as
an accurate statement of fact reported therein. We may mention that this
imputation has no relevance to the first proceedings. As a fact, the son of
Justice Ahmadi is not practising in the Supreme Court. The alleged facility of
permitting his son to stay in his official residence bears no relevance to the
proceedings. The imputations were obviously off the cup.
Imputation
12 made at page 8 in paragraph 18(i) reads thus: " Is Justice Ahmadi not
liable to pay from his pocket not only the legitimate costs incurred by the
petitioners in C.W.P. No. 432 of 1995 and the present petition, but also the
loss caused to the public exchequer by non-payment of dues with 18% interest by
Shri P.V.N. Rao?" In his preliminary submissions he reiterated it giving
further justification thus: "This is the law laid down by this Hon'ble
Court in relation to public servants. Whether it is also applicable to holders
of constitutional office or not is a substantial question of law, which should
have been answered by a constitution bench." In his modified version he
has stated thus: "who would be liable to reimburse the legitimate costs
incurred by the petitioner by filing C.W.P.
No.432
of 1995, and the present petition and the huge loss caused to the public
exchequer because of the persistent default in paying them by P.V. Narasimha
Rao, with 18% interest?" it would, thus, be apparent that for dismissal of
the writ petition filed by a party, by a judicial act, the presiding judge of
the Court is liable to pay costs to the litigant and also the resultant loss to
the public exchequer for non-payment of the dues by the defaulter with
interest.
He
justified it stating that when a public servant causes loss to the State and
the same is sought to be recovered from him, why not the constitutional
functionary for judicial act is also liable to pay over the same. In other
words, if the Court dismisses a petition filed by a litigant, the resultant
costs must be born by the presiding officer of the Court. Equally, the loss
caused to the State should also be recoverable from the presiding judge from
his personal pocket .
Regarding
imputation 13, though he stated that he wished to make modification to it, in
his amended version, he did not touch upon the same.
Imputation
13 at page 8 reads thus: "since no person can be a judge in his own cause,
the senior-most judge of the Hon'ble Court may be permitted to constitute a
constitution bench, for expeditious hearing of the petition excluding any judge
who owes his elevation to the apex court to justice Ahmadi. Further during its
pendency, Justice Ahmadi may be advised to proceed on leave, so that he may not
directly or indirectly influence any of the judges hearing the matter." In
his preliminary submissions, he reiterates that " The prayer is in strict
conformity with the maxim cited earlier in the words of lord Heward, C.J."
He justified it on the basis of Justice P.N. Bhagwati (as he then was), the
senior-most judge's presiding over P.S.
Gupta's
case, i.e., First judges case when justice Chandrachud was imputed with some
allegations. He also justified his quoting the advice given to Justice V.
Ramaswami
to proceed on leave when enquiry was pending against him under the Judges
[Inquiry] Act. It would be seen that in this imputation, he categorically
asserts and relies that justice Ahmadi, Chief justice of India would bring
about influence directly or indirectly upon his colleagues when the matter was
to be heard. While he is in the office, he also should not function as Chief
Justice pending his second writ petition. CJI also should not constitute any benches.
That should be done by the senior-most puisne Judge. Any Judge appointed to
this Court during his tenure as CJI should not hear ht e case as CJI directly
or indirectly would influence them when the case relating to his was dealt
with. In other words, his imputation is that Judges appointed to the Supreme
Court during the tenure of Justice A.M. Ahmadi as CJI amenable to influence in
deciding the cases at the behest of the CJI as they owe their appointments to
him. In other words, as soon as a writ petition under Article 32 or petition
under Article 136 was filed attributing motives or bias to the CJI [it would
equally apply to any Judge he should desist to perform judicial and
administrative work. He should proceed on leave till that case is decided. The
senior-most puisne Judge should assume the work of the CJI.
Imputations
in Prayer (b) and (c) read as under:
"(b)
strip the respondent (Justice A.M. Ahmadi) of his citizenship";
and
(c) Direct the registration of an FIR against he respondent (Justice A.M.
Ahmadi) under the Indian Penal Code for committing forgery and fraud." In
his preliminary submissions, he has stated with regard to stripping of
citizenship of CJI that "this may have been the consequence of the
constitution bench affirming the view taken by the Calcutta High Court cited
earlier. Moreover, this is only a prayer for relief sought, which does not fall
within the mischief of the Contempt of Courts Act." With regard to prayer
(c) he states thus: "the plea taken in relation to (xiv (b). Now, in the
modified statement, he seeks to withdraw them and states "May kindly be
treated as deleted". It would, thus, be clear that his asking for
stripping of the citizenship of the Chief Justice of India is for dismissing
his writ petition and prosecution is the consequence of a decision of this
Court which had affirmed the judgment of the Calcutta High Court in Fazalul
Haq's, Chief Minister, Bengal's case.
At
this stage, it may be relevant to mention that the petitioner, either in his
preliminary submissions or modified version filed on April 24, 1996, during the
course of hearing, did not tender any unconditional apology for the imputations
made against CJI. On the other hand, it is clear that being a professor of
English. he knew the consequences of the language used, its purpose and effect
and pressed for consideration. At the time of dismissing the second writ
petition to a pointed reference of the allegations to be scandalous, it was
recorded in the order and there was no demur from the petition to the contra,
that the petitioner stood by them. In other words, he would bear the
consequences that would flow therefrom. According to the petitioner, many an
imputation bearing constitutional contour require interpretation by a bench of
five Judges under Article 145(3). We need not refer the case to the
constitution Bench merely because the petitioner has raised that contention in
the petition; nor the same requires decision unless the Court finds that the
petition cannot be disposed of without the questions being decided by the
constitution Bench.
When
imputations were made against the Chief Justice, the petitioner assumed, in our
view, "wrongly" that CJI cannot constitute benches nor he should
discharge the functions of Chief Justice until the matter is decided. On
appointment by the president by a warrant and on his taking oath of office, the
CJI becomes entitled to discharge the functions and duties of that office
including constitution of benches and assignment of judicial work to judges as
per procedure. This responsibility flows from the office and none including a
litigant has right to demand for contra position. As regards his personal
disposition to hear a case by a bench of which he is a member, it is his own
personal volition. The Chief Justice's prerogative to constitute benches and
assignment of judicial business would no hinge at the whim of a litigant.
The
decisions of different benches are the decisions of the Court. For the
convenient transaction of business, the senior judge among the members composing
the Bench gets the privilege to preside over the Bench but the decision is that
of the Court. The members composing the Bench collectively speak for the Court
and would bear collective responsibility for the decision unless separate
opinions are expressed by individual members composing the Bench. Majority
opinion is the law as envisage under Article 145(5) of the constitution. Their
opinion or order thus is the opinion or order of the Court. The minority
opinion also would form part of the judgment or order but remains the minority
view.
The
Chief justice is first among the colleagues.
The
question, therefore, arises: whether the afore- enumerated imputations
constitute contempt of this court? Though the petitioner contended that the
provisions of the Act are ultra vires Article 19 [1] (a) of the constitution,
it is not necessary for the purpose of this case to twelve upon that
contention. This court has taken suo motu cognizance of contempt of this Court
under Article 129 of the Constitution of India which reiterates as a court of
record, its power to punish for contempt of itself. As pointed out in the
proceedings of this Court dated January 13, 1996, in spite of the fact that
this Court brought to his attention the gravity of the imputations, the petitioner
insisted and reiterated that he stood by the scandalous averments made therein.
This Court being duty bound, was, therefore, constrained to issue notice of
contempt. The question, therefore, is: whether the aforesaid imputations are
scurrilous attack intended to scandalise the Court and do they not impede due
administration of Justice? Words are the skin of the language. Language in
which the words are couched is media to convey the thoughts of the author. Its
effect would be discernible from the language couched proprio vigore. The
petitioner, a professor of English language in clear and unequivocal language
emphasised and reaffirmed that the averments were "truthfully and
carefully" worded. The question is: to what extent the petitioner is
entitled to the freedom of those expressions guaranteed under Article 19[1](a)
of the Constitution? If they are found scandalous, whether he would get
absolved by operation of Article 19[1] (a) ?. As this Court has taken suo motu
action under article 129 of the Constitution and the word `contempt' has not
been defined by making rules, it would be enought to been defined by making
rules, it would be enought to fall back upon the definition of 'criminal
contempt" defined under section 2(c) of the act which reads thus:
"Criminal
Contempt" means the publication (whether by words, spoken or written, or
by signs, or buy visible representations, or otherwise of any other act
whatsoever which-- (i) Scandalises or tends to scandalise, or lowers or tends
to lower the authority of any court:
or
(ii) Prejudices, or interferes or tends to interfere with, the due course of
any judicial proceedings;
or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct,
the administration of justice in any other manner." (emphasis supplied) It
is doubtless that freedom of speech and of expression guaranteed by Article
19[1] (a) is one of the most precious liberties in our secular, socialist
republic.
Freedom
of expression is a prized privilege to speak one's open mind although not
always in perfect good taste of all institutions. Since it opens up channels of
open discussion, the opportunity of speech and expression should be afforded
for vigorous advocacy, no less than abstract discussion.
This
liberty may be regarded as an autonomous and fundamental good and its value
gets support from the need to develop our evolving society from unequal pas t
to a vigorous homogeneous egalitarian order in which each gets equality of
status and of opportunity; social, economic and political justice with dignity
of person so as to build an integrated and united Bharat. Transformation for
that strong social restructure would be secured when channels for free
discussion are wide opinion and secular mores are not frozen. All truths are
relative and they can be judged only in the competition of market. Liberty is not to be equated with
certainty. Freedom of expression equally generates and disseminates ideas and
opinions, information of political and social importance in a free market place
for peaceful social transformation under rule of law. The doctrine of discovery
of truth does require free exchange of ideas and use of appropriate language.
words are the skin of the language which manifests the intention of its maker
or the speaker. The right to free speech is, therefore, an integral aspect of
right to self-development and fulfillment of person's duties some of which are
proselytised in part IVA of the Constitution as Fundamental Duties. The end of
the State is to secure to the citizens freedom to develop his faculties,
freedom to think as he will, to speak as he thinks and read as indispensable
tools to the discovery of truth and realisation of human knowledge and human
rights.
Public
discussion is political liberty. The purpose of freedom of speech is to
understand political issues so as to protect the citizens and to enable them to
participate effectively in the working of the democracy in a representative
form of Government. Freedom of expression would play crucial role in the
formation of public opinion on social, political and economic questions.
Therefore, political speeches are given greater degree of protection and
special and higher status than other types of speeches and expressions. The
importance of speaker's potential development on political and social questions
is also relevant to encourage human development for effective functioning of
democratic institutions.
Equally,
debate on public issues would be uninhibited, robust and wide open. It may well
include vehement, sarcastic and sometimes unpleasant sharp criticism of
Government and public officials. Absence of restraint in this area encourages a
well informed and politically sophisticated electoral debate to conform the
Government in tune with the constitutional mandates to return a political party
to power. Prohibition of freedom of speech and expression on public issues
prevents and stifles the debate on social, political and economic questions
which in long term endangers the stability of the community and maximises the
source and breeds for more likely revolution.
If
maintenance of democracy is the foundation for free speech, society equally is
entitled to regulate freedom of speech or expression by democratic action. The
reason is obvious, viz., that society accepts free speech and expression and
also puts limits on the right of the majority. Interest of the people involved
in the acts of expressions should be looked at not only from the perspective of
the speaker but also the place at which he speaks, the scenario, the audience,
the reaction of the publication, the purpose of the speech and the place and
the forum in which the citizen exercises his freedom of speech and expression.
The state has legitimate interest, therefore, to regulate the freedom of speech
and expression.
The
state has legitimate interest, therefore, to regulate the freedom of speech and
expression which liberty represents the limits of the duty of restraint on
speech or expression not to utter defamatory or libelous speech or expression.
There is a co-relative duty not to interfere with the liberty of others. each
is entitled to dignity of person and of reputation. No body has a right to
denigrate other's right to person or reputation. Therefore, freedom of speech
and expression is tolerated so long as it is not malicious or libelous so that
all attempts to foster and ensue orderly and peaceful public discussion or
public good should result from free speech in the market place. If such speech
or expression was untrue and so reckless as to its truth, the speaker or the
author does not get protection of the constitutional right.
Freedom
of speech and expression, therefore, would be subject to Articles 19 [2],129
and 215 of the Constitution, in relation to contempt of court, defamation or
incitement to an offence etc. Article 3 read with Article 19 of the Universal
Declaration of Human Rights grants to everyone liberty and right to freedom of
opinion and expression.
Article
19 of the International Covenant on Civil and political Rights, 1966 to which
India is a signatory and had ratified, provides that everyone shall have the
right to freedom of expression, to receive and impart information and ideas of
all kinds but clause [3] thereof imposes corresponding duty on the exercise of
the right and responsibilities. It may therefore, be subject to certain
restrictions but these shall only be such as are provided by law and are
necessary for the respect of life and reputations of others for the protection
of national security or public order or of public health or moral. it would
thus be seen that liberty of speech and expression guaranteed by Article 19[1]
(a) brings within its ambit, the corresponding duty and responsibility and puts
limitations on the exercise of that liberty.
A
citizen is entitled to bring to the notice of the public at large the
infirmities from which any institution including judiciary suffers from. Indeed
, the right to offer healthy and constructive criticism which is fair in spirit
must be left unimpaired in the interest of the institution itself. Critics are
instruments of reform but not those actuated by malice but those who are
inspired by public weal. Bona fide criticism of any system or institution
including judiciary is aimed at inducing the administration of the system or
institution to look inward and improve its public image. Courts, the
instrumentalities of the state are subject to the Constitution and the laws and
are not above criticism. Healthy and constructive criticism are tools to
augment its forensic tools for improving its functions. A harmonious blend and
balanced existence of free speech and fearless justice counsel that law ought
to be astute to criticism. Healthy and constructive criticism are tools to
augment its forensic tools for improving its functions. A harmonious blend and
balanced existence of free speech and fearless justice counsel that law ought
to be astute to criticism.
Constructive
public criticism even if it slightly oversteps its limits thus has fruitful
play in preserving democratic health of public institutions. Section 5 of the
Act accords protection to such fair criticism and saves from contempt of court.
The best way to sustain the dignity and respect for the office of judge is to
deserve respect from the public at large by fearlessness and objectivity of the
approach to the issues arising for decision, quality of the judgment,
restraint, dignity and decorum a judge observes in judicial conduct off and on
the bench and rectitude.
In
P.N. Duda vs. P. Shiv Shankar [AIR 1988 SC 1208] this court had held that administration
of justice and judges are open to public criticism and public scrutiny.
Judges
have their accountability to the society and their accountability must be
judged by the conscience and oath to their office, i.e., to defend and uphold
the Constitution and the laws without fear and favour. Thus the judges must do,
in the light given to them to determine, what is right.
Any
criticism about judicial system or the judges which hampers the administration
of justice or which erodes the faith in the objective approach of the judges
and brings administration of justice to ridicule must be prevented. The
contempt of court proceedings arise out of that attempt.
Judgments
can be criticised. Motives to the judges need not be attributed. It brings the
administration of justice into disrepute. Faith in the administration of
justice is one of the pillars on which democratic institution functions and
sustains. In the free market place of ideas criticism about the judicial system
or judges should be welcome so long as such criticism about the judicial system
or judges should be welcome so long as such criticism does not impair or hamper
the administration of justice. This is how the courts should exercise the
powers vested in them and judges to punish a person for an alleged contempt by
taking notice of the contempt suo motu or at the behest of the litigant or a
lawyer. In that case the speech of the Law Minister in a Seminar organised by
the Bar Council and the offending portions therein were held not contemptuous
and punishable under the Act. In a democracy judges and courts alike are,
therefore, subject to criticism and if reasonable argument or criticism in
respectful language and tempered with moderation is offered against any
judicial act as contrary to law or public good no court would treat criticism
as a contempt of court.
Advocacy
touches and asserts the primary value of freedom of expression. It is a
practical manifestation of the principle of freedom of speech which holds so
dear in a democracy of ability to express freely. Freedom of expression
produces the benefit of the truth to emerge. It aids the revelation of the
mistakes or bias or at times even corruption it assists stability by tempered
articulation of grievances and by promoting peaceful resolution of conflicts.
Freedom of expression in arguments encourages the development of judicial
dignity, forensic skills of advocacy and enables protection of fraternity.,
equality and justice.
It
plays its part in helping to secure the protection of other fundamental human
rights. Legal procedure illuminates how free speech of expression constitutes
one of the most essential foundations of democratic society. Freedom of
expression, therefore, is one of the basic conditions for the progress of
advocacy and for the development of every man including legal fraternity
practising the profession of law. Freedom of expression, therefore, is vital to
the maintenance of free society. It is essential to the rule of law and liberty
of the Citizens. The advocate or the party appearing in person, therefore, is
given liberty of expression. As stated hereinbefore, they equally owe
countervailing duty to maintain dignity, decorum and order in the court
proceedings or judicial process. The liberty of free expression is not to be
confounded or confused with licence to make unfounded allegations against any
institution, much less the judiciary.
In
E.M.S. Namboodiripad v. T. Narayanan Nambiar [1971) 1 SCR 697] a Bench of three
judges had held that the law of contempt stems from the right of a held that
the law of contempt stems from the right of a court to punish, by imprisonment
or fine, persons guilty of words or acts which obstruct or tend to obstruct the
administration of justice.
This
right is exercised in India by all courts when contempt is committed in facie
curiae by the superior courts on their own behalf or on behalf or courts
subordinate to them, even if committed outside the Courts.
Scandalising
the judges or courts tends to bring the authority and administration o flaw
into disrespect and disregard and tantamounts to contempt. All acts which bring
the court into disrepute or disrespect or which offend its dignity or its
majesty or challenge its authority, constitute contempt committed in respect of
single judge or single court or in certain circumstances committed in respect
of the whole of the judiciary or judicial system.
Therein
the criticism by the chief Minister who described judiciary as an instrument of
oppression an d the judges as guided and dominated by class hatred, class
interest and class prejudices etc. was held to be an attack upon judges
calculated to give rise to a sense of disrespect an distrust of all judicial
decisions. It was held that such criticism of authority of the law and law
courts constituted contempt court and the Chief Minister was found guilty
thereof.
The
contempt of court evolved in common law jurisprudence was codified in the form
of the Act. Section 2 [c] defines " criminal contempt" which has been
extracted earlier. In A.M. Bhattacjarkee's case [supra] relied on by the
petitioner himself, a Bench of the two judges considered the said definition
and held that scandalising the court would mean any act done or writing
published which is calculated to bring the court or judges into contempt or to
lower its authority or to interfere with the due course of justice or the legal
process of the court. In para 30, it was stated that scandalising the court is
a convenient way of describing a publication which, although it does not relate
to any specific case either past or pending or any specific judge, is a
scurrilous attack on the judiciary as a whole, which although it does not
relate to any specific case either past or pending or any specific judge, is a
calculated to undermine the authority of the courts and public confidence in
the administration of justice. Contempt of court is to keep the blaze of glory
around the judiciary and to deter people from attempting to render justice
contemptible in the eyes of the public. A liable upon a court is a reflection
upon the sovereign people themselves.
The
contemnor conveys to the people that the administration of justice is weak or
in corrupt hands. The fountain of justice is tainted. Secondly, the judgments
that stream out of that foul fountain is impure and contaminated. In Halsbury's
Laws of England [4th Edn.] Vol. 9 para 27 at page 21 on the topic
"Scandalising the Court " it is stated that scurrilous abuse of a
judge or court, or attacks on t he personal character of a judge, are
punishable contempts. The punishment is inflicted, not for the purpose of
protecting either the court as a whole or the individual judge of the court
from a repetition of the attack, but of protecting the public, and especially
those who either voluntarily or by compulsion are subject subject to the
jurisdiction of the court, from the mischief they will incur if the authority
of the tribunal is undermined or impaired. In consequence, the court has
regarded with particular seriousness allegations of partiality or bias on the
part of a judge or a court. On the other hand, criticism of a judge's conduct
or of the conduct of a court, even if strongly worded, is not a contempt
provided that the criticism is fair, temperate and made in good faith, and is
not directed to the personal character of a judge or to the impartiality of a
judge or court.
Therefore,
it is of necessity to regulate the judicial process free from fouling the
fountain of justice to ward off the people from undermining the confidence of
the public in the purity of fountain of justice and due administration.
Justice
thereby remains pure, untainted and unimpeded. The punishment for contempt,
therefore, is not for the purpose of protecting or vindicating either the
dignity of the court as a whole or an individual judge of the court from attack
on his personal reputation but it was intended to protect the public who are
subject to the jurisdiction of the court and to prevent under interference with
the administration of justice. If the authority of the court remains undermined
or impeded the fountain of justice gets sullied creating distrust and disbelief
in the mind of the litigant public or the right-thinking public at large for
the benefit of the people. Independence of the judiciary for due course of
administration of justice must be protected and remain unimpaired. Scandalising
the court, therefore, is a convenient expression of scurrilous attack on the
majesty of justice calculated to undermine its authority and public confidence
in the administration of justice. The malicious or slanderous publication
inculcates in the mind of the people a general disaffection and dissatisfaction
on the judicial determination and indisposes in their mind to obey them. If the
people's allegiance to the law is so fundamentally shaken it is the most vital
and most dangerous obstruction of justice calling for urgent action. Action for
contempt is not for the protection of the judge as private individual but
because they are the channels by which justice is administered to the people
without fear or favor.
As per
the Third Schedule to the Constitution oath or affirmation is taken by the
judge that he will duly and faithfully perform the duties of the office to the
best of his ability, knowledge and judgment without fear or favour, affection
or ill-will and will so uphold the Constitution and the laws In accordance
therewith, judges must always remain impartial and should be known by all
people to be impartial. Should they be imputed with improper motives, bias,
corruption or partiality, people will lose faith in them. The judge requires a
degree of detachment and objectivity which cannot be obtained, if judges
constantly are required to look over their shoulders for fear of harassment and
abuse and irresponsible demands for prosecution or resignation. The whole
administration of justice would suffer due to its rippling effect. It is for
this reason that scandalising the judges was considered by the parliament to be
contempt of a court punishable with imprisonment or fine.
Scandalising
the court, therefore, would mean hostile criticism of judges as judges or
judiciary. Any personal attack upon a judge in connection with office he holds
is dealt with under law of libel or slender. Yet defamatory publication
concerning the judge as a judge brings the court or judges into contempt, a
serious impediment to justice and an inroad on majesty of justice. Any
caricature of a judge calculated to lower the dignity of the court would
destroy, undermine or tend to undermine public confidence in the administration
of justice or majesty of justice. It would therefore, be scandalising the judge
as a judge, in other words, imputing partiality, corruption, bias, improper
motives to a judge is scandalisation of the court and would be contempt of the
court. Even imputation of lack of impartiality or fairness to a judge in the
discharge of his official duties amounts to contempt. The gravamen of the
offence is that of lowering his dignity or authority or an affront to majesty
of justice. When the contemnor challenges the authority of the court, he
interferes with the performance of duties of judge's office or judicial process
or administration of justice or generation or production of tendency bringing
the judge or judiciary into contempt.
Section
2 (c) of the Act, therefore, defines criminal contempt the wider articulation
that any publication, whether by words, spoken or written, or by signs, or by
visible representations, or otherwise of any matter or the doing of any other
act whatsoever which scandalises or tends to scandalise, or lowers or tends to
lower the authority of any court; or prejudices, or interferes or tends to
interfere with, the due course of any judicial proceeding;
or
interfere with, or obstructs or tends to obstruct, the administration of
justice in any other manner, is a criminal contempt. Therefore, a tendency to
scandalise the Court or tendency to lower the authority of the court or
tendency to interfere with or tendency to obstruct the administration of
justice in any manner or tendency to challenge the authority or majesty of
justice, would be a criminal contempt. The offending act apart, any tendency if
it may lead to or tends to lower the authority of the court is a criminal
contempt.
Any
conduct of the contemnor which has the tendency or produces a tendency to bring
the judge or court into contempt or tends to lower the authority of the court
would also be contempt of the court.
It is
true that in an indictable offence generally mens rea is an essential
ingredient and requires to be proved for convicting the offender but for a
criminal contempt as defined in Section 2 (c] any enumerated or any other act
apart, to create disaffection disbelief in the efficacy of judicial
dispensation or tendency to obstruct administration of justice or tendency to
lower the authority or majesty of law by any act of the parties, constitutes
criminal contempt. Thereby it excludes the proof of mens rea. What is relevant
is that the offending or affront act produces interference with or tendency to
interfere with the courses of justice. At this stage, we would dispose of one
of the serious contentions repeatedly emphasised by the petitioner that he had
no personal gain to seek in the lies except said to have been fired by public
duty and has professed respect for the Court. Those are neither relevant nor a
defence for the offence of contempt. What is material is the effect of the
offending act and not the act per se. In E.M.S. Namboodiripad's case this court
had held in paragraph 33 that a law punishes not only acts which had in fact
interfered with the courts and administration of justice but also those which
have that tendency, that is to say, are likely to produce a particular result.
It was held that the likely effect of the words must be seen and they clearly
have effect of lowering the prestige of the judges and courts in the eyes of
people. Same view was reiterated in Sambu Nath Jha vs. Kedar Prasad Sinha
[(1992(1) SCC 573 at 577]. As stated earlier, imputation of corrupt or improper
motives in judicial conduct would impair the efficacy of judicial dispensation
and due protection of the liberties of the citizen or due administration of
justice. This paramount public interest is protected by the definition in
Section 2 [c] of the Act. It is, therefore, not necessary to establish actual
intention on the part of the contemnor to interfere with the administration of
justice. making reckless allegations or vilification of the conduct of the
court or the judge would be contempt.
The
question, therefore, to be considered is: whether the imputations referred to
hereinbefore have necessary tendency to impinge or tendency to impede the
public confidence in the administration of justice or would create disbelief in
the efficacy of judicial administration or lower the authority or interferes
with majesty of Court? The court, therefore, is required to consider whether
the imputations made by a contemnor are calculated to bring or have the effect
of bringing the court into contempt or casting aspersions on the administration
of justice tends to impede justice etc. The court has to consider the nature of
the imputations, the occasion of making the imputations and whether the
contemnor foresees the possibility of his act and whether he was reckless as to
either the result or had foresight like any other fact in issue to be inferred
from the facts and circumstances emerging in the case. The reason is obviously
that the court does not sit to try the conduct of a judge to whom the
imputations are made. It would not be open to the contemnor to bring forward
evidence or circumstances to justify or to show whether and how fairly
imputations were justified because the judge is not before the Court. The
defence justification to an imputation would not, therefore, be available to
the contemnor. The imputation of improper motives or bias cannot be justified
on the principle of fair contempt.
In
Ambard v. Attorney-General for Trinidad and Tobago [1936 AC 322 at 335] Lord
Atkin in his oft-quoted judgment held that justice is not a cloistered virtue
and must be allowed to suffer the secutiny and respectfully, have been, though
outspoken comments of ordinary man". But in the same judgment it was
further pointed out that provided that members of the public should abstain
from imputing improper motives to those taking part in the administration of
justice and are genuinely exercising a right of criticism and not acting in
malice or attempting to impair the administration of justice. That was a case
of criticism of the Court proceedings as is saved by Section 5 of the Act.
Law is
not in any doubt that in a free democracy everybody is entitled to express his
honest opinion about the correctness or legality of a judgment or sentence or
an order of a court but he should not overstep the bounds.
Though
he is entitled to express that criticism objectively and with detachment in a
language dignified and respectful tone with moderation, the liberty of
expression should not be a licence to violently make personal attack on a
judge.
Subject
to that, an honest criticism of the administration of justice is welcome since
justice is not a cloistered virtue and is entitled to respectful scrutiny. Any
citizen is entitled to express his honest opinion about the correctness of the
judgment, order or sentence with dignified and moderate language pointing out
the error or defect or illegality in the judgment, order or sentence.
That
is after the event as post-mortem.
In
Shri Baradakanta Mishra etc. v. The Registrar of Orissa High Court & Anr.
etc. [1974) 1 SCC 374], the appellant, a District judge was suspended and a
spate of litigation in that behalf had ensued. When an order of suspension was
set aside by the Government, in exercise of his power under Article 235, the
High Court further ordered suspension of him pending enquiry of the allegations
made against judges in a memorandum and letters sent to the Governor in a
vilificatory criticism of the judges in their function on the administration
side. When contempt action was initiated, he challenged the jurisdiction of the
court and the competency to initiate action for contempt on the specious plea
that the acts done by the High Court were on the administration side and were
not judicial actions. A three-Judge Bench had negatived the plea and convicted
the appellant under section 12 of the Act. When the matter had come up before
this court, a constitution Bench considered the gravamen of the imputations and
had held that the allegations made against the court in the memo submitted to
the Governor constituted scurrilous allegations against the High Court. Again
some of the allegations made in the memo of appeal and various communications
to the Supreme Court were held to constitute contempt of the Court and the
conviction was confirmed though sentence was reduced. This Court held that
imputation of improper motives, bias and prejudice constitutes contempt under
Section 2[c] of the Act.
In
Special Reference No. 1 of 1964, popularly known as U.P. Legislature's Warrant
of Arrest of the Judges of the Allahabad High Court and Keshav Singh Reference,
a Bench of seven judges of this Court observed that the power to punish for
contempt alleged must always be exercised cautiously, wisely and with
circumspection. The best way to sustain the dignity and status of their
[judges] office is to deserve respect from the public at large by the quality
of their judgments, fearlessness and objectivity of their approach and buy the
restraint, dignity and decorum which they observe in their judicial conduct. It
would equally apply to the legislature. Keeping the above perspective in view,
the question emerges; whether the imputations itemised hereinbefore constitute
contempt of the Court. At the cost for petition, we any reiterate that in a
democracy though every one is entitled to express his honest opinion about the
correctness or legality of a judgment or an order or sentence, judges do
require degree of detachment and objectivity in judicial dispensation, they
being duty bound with the oath of office taken by them in adjudicating the
disputes brought before the court. The objectivity or detachment cannot be
obtained if the judges have constantly to look over their shoulders for fear of
harassment and abuse and irresponsible demands for prosecution, resignation or
to refrain from discharging their duties pending further action. Cognisant to
this tendency;, the founding fathers of the Constitution engrafted Articles 121
and 211 of the constitution and prohibited the parliament and the legislatures
to discuss on the floor of the House the conduct of any judge of the Supreme
Court or the High Court in the discharge of his duties except upon a motion for
presenting address to the president praying for the removal of a judge under
Article 124[4] of the Constitution in accordance with the procedure prescribed
under the judges [Inquiry] Act, 1968 and the Rules made thereunder. In A.M. Bhattacharjee's
case on which great reliance was placed by the petitioner emphasising the
rectitude on the part of a judge, this Court laid the rule for the advocates to
adhere to a code of conduct in seeking redressal on the perceived aberration of
the conduct of a judge otherwise than in accordance with the procedure
prescribed in Article 124 [4] of the Constitution. The respect for and the
dignity of the court thereby was protected from scurrilous attack on the judge
or the court. if the forum of the judicial process is allowed to mount
scurrilous attack on a judge, the question arises whether the forum of the
judicial process of vilification of the judges or imputations to the judges in
the pleadings presented to the court would give liberty of freedom of
expression to an advocate or a light of the above discussion, we have little
doubt to conclude that when an advocate or a party appearing before the court
requires to conduct himself in a manner befitting to the dignity and decorum of
the court, he cannot have a free licence to indulge in writing in the pleadings
the scurrilous accusations or scandalisation against the judge or the court. If
the reputation and dignity of the judge, who decides the case are allowed to be
prescribed in the pleadings, the respect for the court would quickly disappear
and independence of the of the judiciary would be a thing of the past.
In Re:
Roshan Lal Ahuja [(1993) Supp. 4 SCC 446] when the contemnor-petitioner's
countless unsuccessful attempts against his order of removal from service
became abortive and in spite of this Court granting at one stage compensation
of a sum of Rs.30,000/- he had indulged in the pleadings with scurrilous
accusations on judges who granted compensation and not reinstatement. It was
held by a three- judge Bench that the contemnor had permitted himself the
liberty of using language in the documents and pleadings which not only had the
effect of scandalising and lowering the authority of the court in relation to
judicial matters but also had the effect of substantial interference with an
obstructing the administration of justice. The unfounded and unwarranted
aspersions on the judges of this Court had the tendency to undermine the
authority of the court and would create distrust in the public mind as to the
capacity of the judges of this Court to met out fearless justice.
Accordingly,
he was convicted and sentenced to under go imprisonment for a period of four
months and to pay a fine of Rs.1,000/- and in default, to undergo sentence for
a further period of 15 days.
In
L.D. Jaikwal v. State of U.P. [1984) 3 SCC 405], the conduct of an advocate in
using abusive language in pleadings and vilification of a judge was held to
constitute contempt under Section 2 [c] (i) of the Act and his sentence under
Section 12 of the Act was upheld. In Re: Shri S.
Mulgaokar
[(1978) 3 SCC 497] the conduct of a senior advocate in publishing a pamphlet
imputing improper motives to the Magistrate who decided his case was held to
constitute substantial interference with the due administration of justice. His
conviction was accordingly upheld though sentence was reduced. In K.A. Mohammed
Ali v.
C.N.
Prasannan [(1994) Supp. 3 SCC 509] while arguing the case, the counsel raised
his voice unusually high to the annoyance of the Magistrate and used derogatory
language against the Magistrate before whom he conducted the trial of an
accused. His conviction and sentence for contempt was accordingly upheld.
In
Gillers "Regulation of Lawyers - Problems of Law and Ethics" [Third
Edition - 1992] at page 747 it was pointed out that in spite of first Amendment
protection of free speech, lawyers who committed contempt of the court were
punished by American court even if they were advocating their clients interest
at that time. The lawyer's behavior threatens the dignity and authority of the
Courts was held to constitute contempt of the court.
In
Charan Lal Sahu v. Union of India & Anr. [(1988) 3 SCC 255], in a petition
under Article 32 of the Constitution the advocate indulged in mud-slinging
against advocates and this Court. It was held that those allegations were
likely to lower the prestige of this Court. This Court accordingly held that he
committed contempt in drawing up the petition and directed to initiate
proceedings against him for overstepping the limits in particular of
self-restraint.
It
would, thus, be seen that when the first writ petition was dismissed by this
Court, as a responsible citizen, the petitioner would have kept quite. When the
result animated by the petitioner was not achieved, he embittered to foul at
the process of this Court and emboldened to file the second writ petition with
imputation made against this Court, in particular targeting the Chief justice
of India, Justice A.M. Ahmadi. As stated hereinbefore and need not be
reiterated once over that it is the duty of the Court to hear and decide any
matter posted for admission. Therefore, there is nothing improper for the first
Court presided over by the Chief Justice of India to hear and decide the
matter. When it came up for admission, the Court appears to have been persuaded
to ascertain the correctness of the allegations made in the writ petition.
This
Court obviously before issuing notice had sent for and directed the solicitor
General to obtain the information from the Government as to the correctness of
the allegations made before deciding whether the Court would exercise its
prerogative power under Article 32 to issue directions as sought for. In
furtherance thereof, the Solicitor General admittedly placed before the Court
the record. On perusal thereof, the first Court the record. On perusal thereof,
the first Court had declined to exercise the power as enumerated and obviously
stated by the petitioner that the exercise of the power under Article 32 was
not appropriate since the Government in the Defence Department could recover
from the Prime Minister's Secretariat or from the Congress Party, as the case
may be, all the arrears, if any, due and payable by the respective entities. It
is not obligatory for this court to give reasons for dismissing the writ
petition. Day in and day out in countless cases, while refusing to interfere
with the orders this Court dismisses the petitions be it filed under Article 32
or 136 of the Constitution in limine. It is also seen that though the case was
adjourned for two weeks, no doubt, it was not posted on that day but it was
listed some time thereafter. In the proceedings of the Court recorded by the
staff, it was recorded that the Solicitor General or in personal capacity
obviously acted as amicus on behalf of the court. Being the Solicitor General
for India, he was directed to have consultation with Government Departments and
to obtain needed information. In appropriate cases this procedure is usually
adopted by the Court.
Recording
of the proceedings by the court generally is not noted by the Court. Is it
improper for the Chief justice to hear the case? Was the dismissal totally
unjust and unfair for not recording the reasons? The petitioner obviously with
half-baked knowledge in law mixed up the language as "improper for Chief
justice of India to hear it". "Dismissal of the "grouse" of
the petitioner was totally unjust, unfair, arbitrary and unlawful flagrant
violation of mandate of Article 14" "Violation of the sacred oath of
office " and to "declare justice A.M. Ahmadi unfit to hold the office
as Chief Justice of India". When these imputations were pointed out to the
petitioner by three-Judge Bench presided over by brother Verma, J. while
dismissing the second writ petition, to be scandalous and reckless, he had
stated that he "stood by" those allegations. He reiterated the same
with justification in his preliminary submissions. He has stated that the
accusations made were truthful and "carefully" worded. In this
backdrop scenario, the effect of these imputations is obviously reckless apart
from scandalising this Court, in particular the Chief Justice of India and was
intended to foul the process of the Court or lower or at any rate tends to
lower the authority of the Court in the estimate of the public and tends to
undermine the efficacy of he judicial process. It would, therefore, be clear
that the accusations are gross contempt. At the height of it, he stated that
since the first writ petition was not disposed of by a bench of not less than
five judges, the writ petition was not dismissed in the eye of law and the
order of dismissal is non est and it is "not decided and disposed of
constitutionally". This assertion of the petitioner flies in the face of
the judicial finality of the order of this Court and the assertion tends to
question the authority of the court. It creates tendency to obstruct the
administration of justice and, therefore, it would be an outrageous criminal
contempt.
Omission
to record reasons, according to the petitioner, is violative of the principles
of natural justice. The Chief justice of India has committed impropriety in
deciding the matter. As stated earlier, the decision is that of the Bench on
behalf of the Court and the Chief justice, being the senior-most among the
members constituting the bench, had spoken on behalf of the Bench.
Therefore,
the attribution of improper motives scandalises the efficacy of judicial
adjudication and per se contumaciously lowers or at any rate tends to lower the
dignity or authority of the Court. The prayer for prosecution of the Chief
justice, though sought in Item 14 (a) and (d) to be withdrawn, which would be
of no consequence, is, therefore, unbelievably outrageous contempt.
These
findings dispose of Items 1,3,5,9 and 14(a) which remain not even amended by
the contemnor.
As
regards other imputations, it may be stated at this stage, as rightly pointed
out by the learned solicitor general, that what we are required to consider is
the effect of the imputations made by the contemnor in the second writ petition
and not what he sought to amend some of he averments attributing imputations to
this Court and the effect thereof. By his own admission, they are
"strindent" and "pungent". They are "truthful"
and were "carefully" stated by him. Even the amended averments did
not advance the contemnor's stand. On the other hand, they compound
perpetration of contumacious conduct recklessly made by the contemnor in the
second writ petition. It item 4, the contemnor attributed that "justice
Ahmadi "ultimately" dismissed the petition observing that the
Government of India was capable of realising the dues from Shri Rao (which it
had not done in two years) and without recording reasons for dismissing the
petition. So much for the vaunted adherence to the twin principles of the
"transparency and accountability". It would be seen that insinuations
that emerge from these words in writ petitions together with the phrase that
CJI browbeated him ex facie scandalise the Court and tend to lower the
authority of the Court. As seen, the insinuations tend to bring the court into
contempt in the estimate of the general public and that the court lacked
fairness, objectivity and dismissed the writ petition for known reasons. it
also tends to interfere with the administration of justice and that the court
should give reasons last the order be believed to be shrouded with suspicion.
Therefore, it is ex facie contumacious. The contemnor seeks to justify his
averments under Section 4 of the Act as fair and accurate report of the
judicial proceedings and that, therefore, they are not contempt. Even in his
modified statement, for his statement that the chief justice of India
browbeated him in dismissing the writ petition, he stated the "discerned
reluctance" on the part of the presiding judge. In other words, his
revised imputation compounds the commission of flagrant contempt by
substituting the word "discerned reluctance" on the part of the
presiding judge. In other words, his revised imputation compounds the
commission of flagrant contempt by substituting the word "browbeat"
with the words "discerned reluctance". In other words, he attributed
motives to the Court for dismissal of the first writ petition. It would, thus,
be clear that the contemnor animated to impute motives to the chief Justice of
India in the discharge of his constitutional duty of deciding a case. When his
grouse stated by the petitioner emphasis supplied] against sri P.V.
Narasimha
Rao was not redressed exercising the power under Article 32 a result which he
wanted, the petitioner contumaciously attributed motives to the Court, in
particular to the presiding officer of the Court, the Chief Justice of India
and thereby he scandalised the court in the estimate of the general public. We
fail to appreciate the stand of the petitioner that Section 4 bails him out and
purges from contempt. It would be applicable only to publication of the report
of a judicial proceedings fairly and with accuracy to outside the world. There
is a distinction between expression in pleading and publication of he report of
the judicial proceedings or an order without malice as fair and constrictive
criticism to the readers. As stated earlier, fair criticism of the judicial
proceedings outside the pleadings of the Court is a democratic feature so as to
enable the court to look inward into the correctness of the proceedings fn the
legality of the orders of the orders of the Court by the Court itself for
introspection. But a party has a duty and responsibility to plead as a part of
the averments or the prayer in the relevant portion with language befitting
with the dignity of the Court and the judicial process and not in self-abuse of
the freedom of expression given under Article 19 [1] (a).
abuse
of the process of the court is a self-evidence. As such Article 19(2) creates
an embargo on the freedom of the expression and excludes from its operation the
power of contempt of Court under the Act. This Court being court of record, power
of this Court under Article 129 is independent and is not subject to Article
19[1] (a), Ex abundanti cautela, Article 19[2] excludes the operation of
Articles 19 [1] when speech or expression is trapped in contempt of court or
tends to trench into it. When the contempt of court is committed by a litigant,
the freedom of expression being contemptuous becomes punishable under Article
129 of eh Constitution de horse the power under Section 12 of the Act.
Item 7
relates to the imputation that the Chief justice of India gets no judicial
protection unlike the president of India for being prosecuted even while Chief
justice A.M.
Ahmadi
holds office as Chief justice of India and is accordingly liable to
prosecution. This bravado not only impinges upon the protection given by
Article 124[4] of the Constitution and under relevant provisions of the
protection of officials Act ex facie it is an outrageous tendency to lower the
authority of the Court and interference with judicial administration. The
assertion of the petitioner that this is a constitutional conundrum required to
be decided by a constitution Bench of this Court highlights contumacious
conduct of the contemnor.
In
item 8 he attributes that this Court "willfully" and
"advertently" [emphasis supplied] violated fundamental rights of the
contemnor and of other people in not granting relief of direction to Sri P.V.
Narasimha Rao to pay the alleged dues. The word "advertently" was
carefully used by the petitioner and the word "willfully" was
employed for refusal of the relief. They do emphasise the emphatic tone of he
language and the motive of he contemnor and attribute motives to this court
that the relief sought for in the first writ petition "advertently"
was not granted and was "wilfully" declined and thereby the Chief
Justice Ahmadi lost constitutional protection of not being prosecuted. This
accusation is a culmination of the contumacious conduct of wanton
scandalisation of the Court and reckless denigration.
In his
amended petition, her further aggravates the contempt stating that the
dismissal of the petition by the first court sent wrong signals to the entire
judiciary of which justice Ahmadi is the head as chief justice of India. The
scurrilous attack, therefore, is not only on Justice Ahmadi as a judge but also
as the Chief Justice of India and also as head of the institution of the whole
country. Thereby he designedly and deliberately allowed himself being brought
within ex facie criminal contempt.
Item 9
relates to the accusation "what are the legal consequences of the
violation of oath of office by justice Ahmadi". He states in his
preliminary submissions that it a constitutional question required to be
decided by a constitution Bench. As stated earlier, every question raised need
not necessarily be decided unless the case cannot be disposed of without
deciding the question for granting or refusing to grant the relief. The oath of
office taken by a judge of this Court is not that he should allow every case or
dismiss every case but only to uphold the constitution and the laws and to
administer justice in accordance therewith in tune with the oath of his office.
The protection of Articles 124 [4], 121,211, the judicial officers protection
act and the judges (protection) Act is to ensure independence to the judiciary.
Threat to judicial process is a challenge to the authority of the court or
majesty of justice. It would be ex-facie contumacious conduct.
In
item 10 again, the petitioner attributes that justice Ahmadi as Chief justice
of India and as a judge of this court deliberately and willfully failed to
perform his duties and stultified the performance of fundamental duties by the
petitioner. This imputation is the consequence of the dismissal of he first
writ petition. Thereby, he seeks stripping of citizenship of justice Ahmadi. It
is an unbelievable outrageous affront to the majesty of justice on the part of
the contemnor and scandalisation of this Court.
It
tends to lower the dignity and authority of the Court and also sows seeds for
persons with similar propensity to undermine the authority of the Court or the
judiciary as a whole; he crossed all boundaries of recklessness and indulged in
wild accusations. He sought justification in his preliminary submissions that
it being a question of law, it does not amount to personal imputation or
insinuation. In spite of this Court pointing it out to be scandalous, when the
second writ petition was dismissed and his persistence that he stood by those
allegations, it does not lie in his mouth to contend either in his preliminary
submissions or his modified form that the dismissal of the first writ petition
amounts to failure to perform fundamental duties by the CJI and, therefore, it
would further compound the contempt.
In
imputation 11, the petitioner attributed to the chief Justice of India that he
had allowed his so to practise in the supreme Court and to stay with him in his
official residence etc. The petitioner sought justification to the said
imputation from reports said to have been published in the "India
Today" and "The Times of India" by a lady senior advocate of
this Court. But he petitioner has not placed on record the said material.
Therefore, we do not have the advantage to verify their contents or correctness
or otherwise of the statements said to have been published therein. When we
pointed out to the petitioner whether he had made any independent enquiry, he
had reiterated that he relied upon those statements. In other words, by
implication, he admitted that he did not make any independent enquiry into the
alleged misuse of official facility by the Chief Justice of India in permitting
his son to practise in this Court or to reside in his official residence along
with him. For the said imputation he said that Justice Ahmadi, the Chief
justice of India is liable to be prosecuted under the prevention of Corruption
Act and he seeks as a justification the ratio decidendi of Veeraswami's case.
it is seen that Veeraswami's case has no application whatsoever. As stated
earlier, Article 124 (4) of he constitution read with the Judges [Inquiry] Act
prescribes the procedure to take action against a judge of the Supreme Court or
of the High Court for proved misbehavior or incapacity. As laid down in
Bhattacharjee's case, Bar Association of the concerned Court was given liberty
to place any material of the aberration of the conduct of a judge before the
CJI for redressal as per the "in-house" procedure laid down therein.
For proved misbehavior, the address by each house of parliament to the
president for removal of a Judge pursuant to a finding of proved misbehavior or
incapacity under the judges (Inquiry) Act by a resolution of not less than
two-third of the members of the House and voting by two-third of the House
present and an order of removal therein by the president of India is
culmination. In Bhattacharjee's case, this Court also laid down that no other
authority or person has power to conduct any enquiry against the conduct of a
judge. Articles 121 and 211 prohibit discussion, in the parliament or in the Legislature
of a State, or the conduct of judge of the Supreme Court or High Court
respectively. Therefore, when the constitution prohibits the discussion of the
conduct of a Judge, by implication, no one has power to accuse a judge of his
misbehavior or incapacity except and in accordance with the procedure
prescribed in the Constitution and the Judges [Inquiry] act or as per the
procedure laid down in Bhattacharjee's case. Irrelevancy of the accusations
apart, the prayer for prosecution of the Chief Justice of India under the
prevention of Corruption Act is an assault on majesty of justice, affront to
authority of law, the gravest contumacious conduct and scurrilous
scandalisation of the Court.
Item
12 of the accusation relates to the payment of litigation cost incurred by the
contemnor in both The writ petitions and the loss said to have been caused to
the public exchequer by non-payment by Sri P.V. Narasimha Rao, from personal
pocket of Justice Ahmadi as a Chief Justice for dismissal of the Writ petition.
He stated in his preliminary submission that when loss was caused by a public
servant in his official capacity to the public exchequer due to his dereliction
of duty and under the law it was recoverable from pay or pension of the public
servant, on the same analogy Chief justice of India should be liable to make
good the loss incurred by him and by the State due to non-payment by Sri P.V.
Narasimha Rao. The implication is that by judicial act, if a presiding Judge
dismisses a petition, he is liable to bear personally not only the costs
incurred by the litigant but also the resultant loss to the state with interest
payable thereon. This imputation is a deliberate interference with the judicial
process and tends to lower the authority of the Court spreading the virus to
repeat by drum beats of similar reckless imputations against the judiciary at
every forum down to the lower rank of the judiciary spreading rippling effect
on independence of the judiciary, authority of the Court and wanton
interference with judicial process. It must be held to he a depraved
contumacious conduct.
Item
13 relates to the interference with the judicial management of the Court and
the duty of a Judge. When an accusation is made against the presiding judge, by
implication, until the matter is decided, the presiding officer has to desist
from discharging the judicial duties by his proceeding on leave and the
senior-most puisne judge would assume the office of the Chief Justice. This is
a deliberate interference in the judicial management tending to son
disaffecting in the efficacy of dispensation of justice. The further accusation
that the Chief Justice of India should not constitute a Bench of the Judges
appointed during his tenure so that "he (CJI)" "may not directly
or indirectly or indirectly influence any of the Judges hearing the
matter". It would, thus, be in unequivocal loud expression that the
contemnor attributed motives to the CJI that the judges appointed during his
tenure as Chief Justice are amenable to his influence in judicial adjudication
and would decide the causes by pressure or influence directly or indirectly
brought by the Chief Justice of India. Equally, it is a corollary that these
judges are amenable to influence and thereby they do not decide the cases
posted before them legally and objectively. The Court is subject to pressures
and decides cases under influence. These accusations are flagrantly outrageous
to scandalise the Court. Though the contemnor has sought leave to modify this
statement, ultimately, in his amended statement, he did not touch upon this
aspect of the matter. In other words, as stated earlier, he stood by his
averments calculatedly made.
His
justification that justification that justice P.N.Bhagwati (as he then was)
decided first S.P. Gupta's case when allegations against CJI Chandrachud were
made has no application. In a judicial proceedings taken by this Court, the
office of the chief Justice of India was directly involved in appointment of
additional judges or extension of their tenure as additional Judges or their
transfer. The Chief Justice of India reclused himself from the Bench;
resultantly,
the senior-most puisne judge came to preside over that Bench. Thus, the
contemnor has committed the contempt of this Court under Article 129 of the
Constitution.
The
question then is: what punishment is to be awarded to the contemnor? As pointed
out earlier, the repeated assertions of the petitioner that he has no personal
gain in the litigation and was actuated by the public duty and laid the
petitions, bear no relevance or a defence. It is already held that in a
contempt proceedings, the motive, in other words, the mens rea is not relevant.
What would be the effect of the act or conduct or imputation is the relevant
question for decision? It is true that in an indictable offence under penal law
generally mens rea is an essential ingredient and the burden lies on the
prosecution to prove it affirmatively. In a contempt proceedings of summary
nature, the proof of mens rea is absolutely unnecessary.
What
is material is the effect or the tendency of the act, conduct or the
publication of the words, written, spoken or by signs or by visible
representation or otherwise and whether it scandalises or tends to scandalise
or lowers or tends to lower the authority of the court or prejudices or tends
to prejudice or interfere or tends to interfere with the due course of any
judicial proceedings or interferes or tends to interfere with or obstruct the
administration of justice in any other manner. The tendency due to the
publication, whether by words written or spoken or by signs or by visible
representation or otherwise, of any matter or the doing of any other act
whatsoever is relevant and material.
It is
already noted that while dismissing the second writ petition, this Court has
pointed out the scandalous nature of accusations which found place in the
second writ petition and when the petitioner persisted for consideration of
scandalous accusations to lay proceedings against the Chief Justice of India
for prosecution and other reliefs referred to hereinbefore, he reiterated that
he would stand by those accusations. Resultantly this Court was constrained to
be into merits and dismissed the petition and initiated suo motu contempt
proceedings and got the notice issued to him pointing out specifically 14 items
which constituted scandalous and reckless litigations pleaded with
irresponsibility. He reiterated them in his preliminary submissions with
further justifications. He admitted that many of them are strident and pungent.
He modified some but, as has been pointed out, by compounding further contempt.
In spite of the solicitor General pointing out the seriousness of the
accusations and the need for the petitioner to have further consultation with a
counsel of his choice the contemnor remained unmoved. On April 15, 1996, when
the matter came up before this Bench for the first time after the service of
notice of the contempt and his filing the preliminary submissions, the
petitioner had orally stated that some legal counsels in the Bar suggested to
him that he should modify the offending portions noted in the contempt notice.
It would, thus, be seen that he appears to have had consultation with some
advocates at the Bar and that he did not retract his steps. He did not tender
any unconditional apology, though this Court is not bound to accept such an
unconditional apology for consideration. Considered from the totality of the
facts and circumstances, the gravest magnitude of the contumacious conduct of
the contemnor, we are left with no opinion but to convict and sentence him to
undergo simple imprisonment for a period of three moths with a fine or Rs.
2,000/- payable in a period of months and in case of defaulted, to undergo
further imprisonment for a period of one month.
The contempt
petition is accordingly disposed of.
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