Bonafide criticism of any institution including the judiciary is always welcome. A two-judge bench of Justice Deepak Gupta and Justice Aniruddha Bose held on 27/04/2020 while deciding a contempt of court matter.
The Apex Court Suo moto took note of two complaint letters sent to the President of India, Chief Justice of India and the Chief Justice of the Bombay High Court against Justice Rohinton Fali Nariman and Justice Vineet Saran.
In the present case, the Supreme Court also deliberated upon the powers dealing with contempt of the Supreme Court in the light of Articles 129 and 142 of the Constitution of India when reading along with the Contempt of Courts Act, 1971.
Brief facts of the present case
In the said letter, reference was made to two complaints- one made by Shri Vijay Kurle, State President of Maharashtra and Goa of the Indian Bar Association, and the second complaint made by Shri Rashid Khan Pathan, National Secretary of the Human Rights Security Council. It was mentioned that these complaints have not only been sent to the President of India and the Chief Justice of India but also have been circulated in the social media.
The Bench took note of the letters and since the prayers made in both the complaints are substantially similar, they were placed before the Chief Justice of India to constitute an appropriate Bench to hear and decide the contempt case. The said complaint letters were written in a highly intemperate language which ran into more than 250 pages combined. The learned senior counsel Sidharth Luthra was also appointed as amicus curiae in the present matter to assist the Court.
Issues before the Court
The court throughout the judgement dealt with two major issues:
- Whether the procedure laid down in the contempt of courts act is binding on the Supreme Court.
- Distinguishing between criticism and contempt of court.
Observation of the court
The main argument of the alleged contemnors is that the contempt of courts act is the final word in the matter and any violation of the procedure of the Contempt of Courts Act would vitiate the entire proceedings and the proceedings can be dropped.
Senior Counsel Sidharth Luthra while referring to a large number of decisions contends that the Supreme Court is a Court of Record under Article 129 is not bound by the provisions of the Contempt of Courts Act.
The court referred to a few relevant articles of the Constitution in this regard-
Article 129 of the Constitution of India reads as follows:
- “Supreme Court to be a court of record. – The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.”
A bare reading of Article 129 clearly shows that this Court being a Court of Record shall have all the powers of such a Court of Record including the power to punish for contempt of itself.
Article 142 (2) of the Constitution of India reads as follows:
142 (2). “Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
Article 142 also provides that this Court can punish any person for contempt of itself but this power is subject to the provisions of any law made by parliament.
On a conjoint reading of both the provisions clearly shows that the latter article could be subject to any law made by parliament but no such restriction is mentioned as far as Article 129 is concerned and article 129 is the primary source of power.
Since the power to punish for contempt of itself is a constitutional power vested in this Court, such power cannot be abridged or taken away even by legislative enactment. If there is any provision of the law which stultifies or abrogates the power under Article 129, there can be little doubt that such law should not be regarded as having been validly enacted.
Criticism vs. Contempt
In a time where the hate speech spreads like a wildfire in no time, the court opined the basis on which criticism can be held as a contempt of court.
The court acknowledged that every citizen is entitled to criticise the judgments and Article 19 of the Constitution which guarantees the right of free speech to every citizen of the country. However, at the same time, we must remember that Article 19(2) of the Constitution also makes it clear that the right to freedom of speech is subject to reasonable restrictions.
The court stated that the purpose of having a law of contempt is not to avoid fair criticism but to safeguard the respect and confidence which the people of this country repose in the judicial system is not undermined in any manner whatsoever.
When the ability, integrity and dignity of the Judges are questioned, this is an attack on the institution. Nevertheless, the citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity, and impartiality of a Judge of the highest court of the land.
The shoulders of this Court are broad enough to withstand criticism, even criticism which may transcend the parameters of fair criticism. However, if the criticism is made to tarnish the image, not only of the Judges but also the Courts, then if such attempts are not checked the results will be disastrous.
To a great extent, judges are reluctant to take any action under the contempt laws even when a personal attack is made on them. However, when there is a concerted attack by members of the Bar who profess to be the members of an organization having a large following, then the Court cannot shut its eyes to the slanderous and scandalous allegations made. If such allegations which have not only been communicated to the President of India and the Chief Justice of India but also widely circulated on social media are permitted to remain unchallenged then the public will lose faith not only in those particular Judges but also in the entire justice delivery system.
The decision of the court
The court relied on the decision of this court in Supreme Court Bar Association v. Union of India (1998) 4 SCC 409, being a Constitution Bench judgment, is binding and all other judgments which may have taken a view to the contrary cannot be said to be correct. With regards to the provisions of Contempt of Courts Act, it held that on a careful analysis of the Constitution Bench decision leaves no manner of doubt that the Act does not provide for a substantive provision conferring contempt jurisdiction but may serve as a guide for the determination of the nature of punishment. Hence, the only requirement is to follow a procedure which is just, fair and under the Rules framed by this Court.
The letters contained assertions right from calling them oblivious of the basic law and its understanding but also of being corrupt and ill-motivated. Both the complaints were held to ex-facie contemptuous, highly scurrilous and scandalous allegations against the two judges of this Court. The court at many times not only found these allegations baseless and malafide but also lowering the majesty of this Court. The court held them accountable on the grounds of contempt of court.
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