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‘No one can be a judge in his own cause’

Judges cannot demand respect through contempt power: SC

Dhananjay Mahapatra The Times of India Nov 03 2014

Since its inception, the Supreme Court has repeatedly ruled that “no one can be a judge in his own cause”. This principle brings fairness to the justice delivery system and upholds equality of all before law.

It also lays down a sound ground rule for adjudication, decision and punishment. It bars anyone from becoming a complainant, investigator and also the judge, all rolled into one.

Against this backdrop, newspapers last week published an interesting news item. An MLA in Uttar Pradesh had barged into a school to slap a Class 5 student.

The boy allegedly had a brawl with the MLA’s son. Taking his son’s complaint against his classmate, the father took it upon himself to punish the alleged aggressor. Since he was the local MLA, he thought he had the sanction to punish the alleged wrongdoer. He executed the punishment without bothering to hear the classmate’s version of the story.

A similar story got enacted in Delhi High Court in Oct 2014. A magazine published a report alleging that an HC judge’s son had a stake in a hotel where the dance floor remained open much beyond the scheduled closure time.

It also alleged that police turned a blind eye because the stakeholder was an HC judge's son.

The publication came to the judge's notice. He inquired from his son, who told him that he had no connection with the hotel. On completing the inquiry with his son, the judge came to the conclusion that the report was published to tarnish his image and also to bring disrepute to the judiciary .He also termed it an attempt to shake the public's confidence in judiciary , which would impede administration of justice.

He took up the case for hearing and issued contempt of court notice to the magazine's entire editorial staff, from the editor-inchief to the sub-editor and photographer. Importantly , he also directed the Delhi Police commission er to seize all copies of the magazine, which contained the `baseless' story, from its offices across the country.

These two incidents show that aberrations continue despite repeated pronouncements by the SC cautioning everyone, including judges of the higher judiciary , against donning the dangerous `judge in his own cause' robe.

In 2010, the apex court in Mohd Yunus Khan vs UP had referred to its own judgments in A U Kureshi vs High Court of Gujarat [2009 (11) SCC 84] and Ashok Kumar Yadav vs State of Haryana [1985 (4) SCC 417]. In both, the court had held that no person should adjudicate a dispute in which he or she has dealt with in any capacity .

“The failure to observe this principle creates an apprehension of bias on the part of the said person. Therefore, law requires that a person should not decide a case wherein he is interested.The question is not whether the person is actually biased but whether the circumstances are such as to create a reasonable apprehension in the minds of others that there is a likelihood of bias affecting the decision,“ it had said in the 2010 judgment.

More than 60 years ago, the Supreme Court had laid down the parameters for contempt of court proceedings in Rizwan-ul-Hasan vs Uttar Pra desh [1953 SCR 581].

It had said, “The jurisdiction in contempt of court is not to be invoked unless there is real prejudice which can be regarded as a substantial interference with the due course of justice. The purport of this court's action is a practical purpose and the court will not exercise its jurisdiction upon a mere question of propriety .“

In 2007, the court in Rajesh Kumar Singh vs High Court of Madhya Pradesh had elaborated and expanded the contempt ground rule laid down in 1953.

It had said, “This court has repeatedly cautioned that the pow er to punish for contempt is not intended to be invoked or exercised routinely or mechanically , but with circumspection and restraint. Courts should not readily infer an intention to scandalize courts or lower the authority of court unless such intention is clearly established. Nor should they exercise power to punish for contempt where mere question of propriety is involved.“

Expressing anguish at the invocation of contempt jurisdiction by some judges at the drop of a hat, the court had said, “Of late, a perception that is slowly gaining ground among public is that sometimes, some judges are showing over-sensitiveness with a tendency to treat even technical violations or unintended acts as contempt. It is possible that it is done to uphold the majesty of courts, and to command respect.“

What it then said is worth its weight in gold. “Judges, like everyone else, will have to earn respect. They cannot demand respect by demonstration of power. Nearly two centuries ago, Justice John Marshall of US Supreme Court had warned that the power of judiciary lies not in deciding cases, not in imposing of sentences, not in punishing for contempt, but in the trust, confidence and faith of the common man.“

Contempt of court: against judges

From the archives of The Times of India 2007, 2009

Contempt of court, which puts the fear of the judiciary into litigants and lawyers, has also been used against judges, though very rarely

Jyoti Punwani

Abbas Kazmi, the former lawyer of Pakistani gunman Ajmal Kasab, filed a contempt of court petition against Judge M L Tahiliani, the additional sessions judge presiding over Kasab’s trial. On November 30, 2009, the judge had dismissed him for “not cooperating’’ and ordered him to leave the court forthwith. By “humiliating’’ him for doing what Kazmi regarded as his duty, the judge had committed contempt of his own court, says Kazmi’s petition.

Contempt proceedings against litigants, lawyers and journalists are a dime a dozen. But contempt proceedings against a judge?

Section 16 of the Contempt of Courts Act, 1971, applies specifically to “judges, magistrates or other persons acting judicially’’. They are liable for contempt of their own court or any other court in the same manner as any other individual, except when they make observations while hearing appeals against judgments passed by lower courts.

Contempt of court is invoked when someone acts in a way that scandalizes the authority or lowers the dignity of a court or interferes in the due course of a judicial proceeding or in the administration of justice. There have been very few cases where this law has been invoked against judges, and fewer still where convictions have resulted.

The reasons are two-fold, says Justice (Retd) B N Srikrishna. “First, lawyers and litigants are scared of annoying judges by filing cases against them. Second, and more important, judges are a dignified lot who know how to maintain the dignity of the court and ensure that the court is not brought to ridicule,’’ he says.

But lawyers recall instances where judges have thrown papers at them. In a 1973 case, a member of the UP Revenue Board, a quasi-judicial authority, was alleged to have abused a lawyer appearing before him with the words “Nalayak gadhe saale ko jail bhijwa doonga; kis idiot ne advocate bana diya hai?’’ and to have ordered the court peon to throw the lawyer physically out of the court. The lawyer filed a contempt of court petition in the Allahabad high court against the member, saying that he deserved to be punished “to save the dignity, honour and decorum of his court’’.

The high court issued notice to the member, who appealed to the Supreme Court on the question of procedure. Upholding the procedure, the Supreme Court sent it back to the high court to be decided on merits. But there is no mention in law journals whether he was convicted.

“Judges don’t normally behave like this,’’ says Justice (Retd) P B Sawant, “but this section serves as a warning to them.’’

Supreme Court lawyer Prashant Bhushan says that contempt proceedings against judges are rare because “one would have to show that an act purported to have been done by a judge in the judicial discharge of his duty was deliberately mala fide and calculated to obstruct the administration of justice or that his remarks were scandalous, which is difficult to prove’’. Bhushan reiterates Justice Srikrishna’s opinion—that people are wary of taking on judges and adds that it is an uphill task. “Even if one wants to file an FIR against any high court judge, even in corruption matters, one needs written permission from the Chief Justice of India,’’ he says. “We are still waiting for permission in many such cases.’’

In a 2007 case, Delhi high court judge V B Gupta found the order of a sessions court judge amounting to contempt of court, and said as much in his order. The sessions judge had issued a warrant of arrest against an accused meant specifically for absconders, although the accused’s bail application was pending. So angered was Justice Gupta by this order that he ordered the sessions judge to go back to law school. “Since Mr R K Tewari does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances it would be appropriate if he undergoes a refresher course at the Delhi Judicial Academy in criminal law and procedure for three months. Director, Delhi Judicial Academy, should submit to this court the performance report with regard to this judicial officer,’’ said Justice Gupta’s order. However, contempt proceedings were not actually filed against the sessions judge.

There is one case, however, where a judge was actually sentenced for contempt—but the action was initiated by a higher court. District judge Baradakanta Misra was suspended by the Orissa high court in 1972. He challenged his suspension in a letter to the governor, wherein he ascribed mala fide upon the high court, describing it as “an engine of oppression’’.

He made similar allegations in letters written to the registrar. In 1973, Judge Misra was convicted by a full bench of the Orissa high court, on six counts of contempt, and sentenced to a fine and two months’ imprisonment. What’s more, his conviction was upheld by the Supreme Court, which reduced his sentence, considering that he was at the end of his career, to a fine of Rs 1000, or, in default, three months’ imprisonment.

But this was a rare case. So why did Abbas Kazmi choose to file a contempt petition? “I have put my career at stake because of my izzat. I cannot tolerate it when people point fingers at me and say: ‘You were the lawyer thrown out by the judge’. I was simply doing my duty as a defence lawyer.’’

Late contempt apology may lead to jail

Late contempt apology may lead to jail, says SC

Dhananjay Mahapatra | TNN

From the archives of The Times of India 2007, 2009

New Delhi: In contempt of case proceedings, it is better to apologise unconditionally and that too swiftly. Any dithering could land the accused in jail, the Supreme Court has warned.

“An apology in a contempt proceeding must be offered at the earliest possible opportunity,’’ said a bench of Justices G S Singhvi and A K Ganguly in an order which toughens the already stringent laws dealing with criminal contempt of court. Criminal contempt of court is a higher degree of offence compared to civil contempt and is invoked against those who seek to brazenly slander a court’s reputation.

Justices Singhvi and Ganguly, however, stressed that the courts needed to exercise the power to punish for contempt with restraint. “Contempt power has to be exercised with utmost caution and in appropriate cases,’’ it said, explaining why the contempt power has not been vested in lower courts. They have to make a reference to the concerned HC for initiation of contempt against a person for his contemptuous behaviour. ‘No contriteness in belated apology’ New Delhi: Toughening its stand against contempt of court, an SC bench rejected a delayed apology by one Ranveer Yadav, who was sentenced to two months imprisonment and fined Rs 2,000 for creating a ruckus in a court in Bihar’s Khagaria forcing the trial judge to leave the room.

His apology came long after trying to justify his misbehaviour on the grounds that the other accused in the case had provoked him. His misconduct was aggravated by his earlier misdemeanour of being discourteous to public prosecutors. Rejecting his apology, the bench has said: “A belated apology hardly shows the contriteness which is the essence of the purging of a contempt. Apart from belated apology, in many cases such apology is not accepted unless it is bona fide.’’

Terming Yadav’s act as a clear case of criminal contempt on the face of the court, the bench said the court reserved the right to reject any apology if it suspected its bona fide. “It’s not incumbent upon the court to accept the apology as soon as it is offered. The court must find out that it is bona fide,’’ Justice Ganguly said.

Judges accountable to society, not scared of fair criticism

Judges accountable to society, not scared of fair criticism: SC

Dhananjay Mahapatra | TNN From the archives of The Times of India 2007, 2009

New Delhi: At a time when many feel sweeping contempt powers are stifling critical views of the judiciary, Supreme Court on Thursday signed a bold new approach saying judges are accountable to society and are not scared of fair and reasonable criticism of their judgments and public actions.

“In fact, fair and reasonable criticism must be encouraged as no one, including judges, can claim infallibility,” said a bench comprising Justices J M Panchal and A K Patnaik while dismissing a petition seeking initiation of criminal contempt proceedings against HRD minister Kapil Sibal for his remarks as a senior advocate 15 years ago expressing concern over the falling standards in the judiciary and the legal profession.

A relieved Sibal expressed his happiness over the broadshoulder stand taken by the apex court. For, SC showed remarkable resilience by taking Sibal’s statement as fair criticism of the judiciary and terming them as concerns of a senior advocate who has practised long in the apex court about the spread of corruption. It said Sibal’s critical remarks along with his suggestions to root out the malaise were nothing but representative of his constructive approach.

The petition seeking initiation of contempt proceedings against Sibal for his statement, which was meant to be published in a bar association souvenir, was filed by an advocate in the Punjab and Haryana High Court. The case was later transferred to the SC in 1997.

The SC noted that despite repeated notices, the petitioner did not appear before the apex court to assist in the hearing. But, it decided to go ahead with the hearing and look into the merits of the allegations given the importance of the issue.

“Criticising judges is not a crime”

The Times of India

Feb 10 2015

Markandey Katju

Contempt law threatens freedom.

Judges are meant to serve the people, criticising judges is not a crime.

In a recent judgment, a bench of the Indian Supreme Court convict ed a Kerala ex-MLA for contempt of court for calling some judges fools, and sentenced him to four weeks imprisonment. In my opinion this judgment is incorrect, totally unacceptable in a democracy, and violates the freedom of speech guaranteed by Article 19(1)(a) of the Constitution of India.

In a democracy the people are supreme and all authorities, whether President or Prime Minister of India, other ministers, judges, legislators, bureaucrats, police, army and so on are servants of the people. Since the people are the masters and judges their servants, the people have a right to criticise judges just as a master has the right to criticise his servant.

Why should Indian judges be so touchy? When the House of Lords delivered the judgment in the 1987 Spycatcher case, a prominent newspaper published as its headline “You Fools“.

Fali Nariman, the eminent Indian lawyer, was in London at that time and he asked Lord Templeman who had delivered the majority judgment why the judges did not take action for contempt of court.Lord Templeman smiled, and said that judges in England do not take notice of such comments.

In Balogh vs Crown Court, a case contested in England in 1975, the defendant told the judge “You are a humourless automaton. Why don't you self destruct?“ The judge smiled, but took no action.

In my opinion the Supreme Court judges, before convicting the former Kerala MLA, should have reminded themselves of the following words of the celebrated Lord Denning in R vs Police Commissioner (1968): “Let me say at once that we will never use this jurisdiction to uphold our own dignity .That must rest on surer foundations.Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.“

A basic defect in the law of contempt of court in India is that it is uncertain.Nariman described it as “dog's law“. The British jurist Bentham said that when a dog does something nasty you beat it.Similarly, the law of contempt of court is known only when someone is punished, and thus it is a standing threat to freedom of speech.

We may consider an example. In Duda's case (1988) the facts were that a Union cabinet minister had said that the Supreme Court sympathised with zamindars and bank magnates. He further said “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court“ and that Supreme Court judges have “unconcealed sympathy for haves“.

A contempt of court petition was filed against the minister but no action was taken by the Supreme Court. Nariman wondered whether, if the statement was made by a common man and not a minister, that person would have gone unpunished.

But in the case against EMS Namboodiripad, former chief minister of Kerala, he was convicted for contempt of court for saying that courts were biased in favour of the rich, which is practically the same thing that was said by the Union minister in Duda's case.

Where then is the certainty and consistency in the law of contempt of court? Is it not “dog's law“ as Bentham called it? Moreover, it is settled law that contempt jurisdiction is discretionary jurisdiction. In other words, a judge is not bound to take action even if contempt of court has indeed been committed.Personally in my 20 years' career as a judge i dismissed perhaps 99% of contempt petitions, saying i was not inclined to take any action.

I remember once when i was sitting in my chamber at lunchtime in the Madras High Court, two senior judges came to meet me looking very upset. It appeared that a leaflet had been circulated against them calling them fools.

On reading the leaflet i started laughing. At this they got even more upset, and said to me, “Chief, we have been defamed, and you are laughing.“

I replied, “Look, you better learn how to ignore all this, or you will get blood pressure. So many things are said in a democracy and you must develop a thick skin, as these are occupational hazards.“

At this the judges tore up the leaflet and also started laughing.

Corruption in judiciary, if alleged

Surveys on corruption in courts can invite contempt

Dhananjay Mahapatra, SC Says Law Permits Trial Courts To Seek Action, Feb 22 2017: The Times of India

The Supreme Court has made it very risky for any organisation to publish a survey on alleged corruption in the lower judiciary . The court said on Tuesday that the law permitted one or many trial courts to make a reference to a high court to launch contempt proceedings against those responsible for the embarrassing findings.

This ruling came in an 11year-old case filed by Transparency International India (TII) and Centre for Media Studies (CMC), which, along with their top management, were asked by a magistrate in Kangan, J&K, in 2006 to show cause why contempt of court proceedings or action under criminal defamation provisions of the Ranbir Penal Code (RPC) should not be initiated against them.

The magistrate had taken objection to an article in the `Greater Kashmir' daily that quoted a survey , conducted by CMS and published by TII, on “rampant corruption“ in the subordinate judiciary. But neither TII's nor CMS's representatives appeared before the magistrate, who, later the same year, is sued bailable arrest warrants against their brass.The warrants were stayed by the SC in 2006 itself.

On Tuesday , a bench of Chief Justice J S Khehar and Justice D Y Chandrachud and Justice Sanjay K Kaul rejected senior advocate Jayant Bhushan's argument that the survey was conducted by asking litigants about their experience in court and projected the general state of affairs in subordinate courts without branding any single trial court or judge.

Bhushan said, “The magistrate against whom the contemptuous remarks or allegations were made, he alone could have initiated proceedings to refer contempt proceedings to the HC.It was a general survey on the health of judiciary . If the Kangan magistrate's decision is upheld, then it would mean any or every magistrate throughout the state can initiate such proceedings.“

The CJI said, “If I am a trial court judge and you publish a survey projecting that 90% (of the) people feel the judiciary is corrupt, then I will think it is an aspersion on my integrity . I will be fully within law to issue notice to you and seek your reply on referring contempt proceedings to the HC.“

However, the SC said the magistrate exceeded his powers in issuing bailable warrants to secure the presence of TII and CMS officials. It gave two months to TII and CMS officials to either appear personally or through their counsel before the Kangan magistrate's court, and show cause why such proceedings should not be initiated.

The SC also said the petitioners were at liberty not to appear before the court, which could proceed with the case and pass orders on referring the contempt proceedings to the HC. On Bhushan's argument that the trial court did not have power to initiate criminal defamation proceedings under sections 499500501 of RPC, the SC said the petitioners could challenge any such order before the J&K HC.

SC bar on contempt cases in lower courts

AmitAnand Choudhary, Jan 03 2017, The Times of India

Sending out a clear signal to all subordinate courts,the Supreme Court held on Monday that no other court could initiate proceedings for contempt of the apex court.

Setting aside an order of the Delhi HC convicting senior journalists, printer and publisher of an English daily for a report on former Chief Justice of India YK Sabharwal, the court said the HC was not empowered to initiate proceedings and punish a person for contempt of the SC.

The HC had taken suo motu action after the news story was placed before it by advocate R K Anand.

In its order, Delhi HC had said that being a court of record, it can initiate proceedings for its contempt as well as contempt of its subordinate courts and also of the SC.

“The power to punish for contempt vested in a court of record under Article 215 does not, however, extend to punishing for the contempt of a superior court“ a bench of Chief Justice T S Thakur and Justice A M Khanwilkar said.

See also

Corruption: India