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LEGALLY SPEAKING Can a commoner allege political bias by sitting SC judge and escape contempt ire?

December 10, 2018 06:33 AM


Can a commoner allege political bias by sitting SC judge and escape contempt ire?

After retiring from the Supreme Court, Justice Kurian Joseph explained why he went with three senior SC judges — Justices J Chelameswar, Ranjan Gogoi and Madan B Lokur — to address an unprecedented press conference on January 12. He said all four shared a perception that then CJI Dipak Misra was being influenced by someone from outside and was allotting sensitive cases to benches headed by select junior SC judges perceived to have a political bias.

Coming from a seasoned judge like Justice Joseph, the charges were serious. He was imputing motives to two categories of judges — one, that CJI Misra was being influenced from outside; two, that some sitting SC judges harboured political bias while dealing with cases.

Can a commoner litigant, after his case gets dismissed, make similar allegations in public against the judge who decided his case and not get hauled up for contempt of court? Can a commoner dare make such perception-based allegations against sitting SC judges? Every day, a thousand perceptions run wild in the SC corridors. Lawyers discuss judges, their knowledge, demeanour, conduct,s judicial acumen and court behaviour. Howsoever strong their perception, no one dares to go public with their views on judges, for they know how choppy the contempt waters are.

Interestingly, a PIL has been filed in the SC seeking an inquiry into Justice Joseph’s statement about external influence on then CJI Misra. When it was mentioned for urgent hearing, CJI Ranjan Gogoi asked what the urgency for early listing was? The petitioner said “credibility of the institution is at stake”.

CJI Gogoi declined early hearing and said, “Credibility of an institution is best maintained by individuals who man it and not by newspaper reports.” It sounded similar to what Lord Dennings had said in R vs Commissioner of Police [1968 (2) QB 150].

Declining to initiate contempt proceedings against Quintin Hogg for his article in ‘Punch’, Lord Dennings had said, “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… All that we ask is those who criticise us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication.”

Lord Dennings’s approach stood the test of time in the famous ‘SpyCatcher’ case in 1987. Britain had banned publication of the book ‘SpyCatcher’ in the UK as a former MI5 agent Peter Wright narrated his experience in identifying a Soviet mole in MI5. Guardian newspaper got permission from UK High Court for reportage on ‘SpyCatcher’. But, the House of Lords, the predecessor of the UK Supreme Court, reversed the HC judgment [Attorney General vs Guardian newspaper 1987 (3) AER 316].

Next day, the ‘Daily Mirror’ newspaper ran a front page headline screaming ‘YOU FOOLS’ and accompanied it with upside down photographs of three law lords in wigs, who decided the case against reportage on ‘SpyCatcher’. No contempt was initiated. ‘The Economist’, which ran a blank page with a caption ‘law is an ass’, too was not visited with adverse consequences.

If Justice Joseph’s statement about ‘external influence’ on CJI Misra was based on perception and shared by the other three SC judges on January 12, similar was the case with Chandan Mitra, who as executive editor of Hindustan Times, wrote an article in September 1995 that “some Supreme Court judges needed psychiatric counselling”, reacting to the SC censuring Punjab Police in a famous case.

Unlike the Daily Mirror, Mitra was hauled up for contempt and in open court, then CJI J S Verma told him in 1996 that it was Mitra who needed psychiatric treatment, not the judges. Spooked by contempt powers, Mitra apologised profusely and published a front page apology to escape unhurt.

CPM leader M V Jayarajan was not as lucky as Hogg, Daily Mirror or even Mitra. The former Kannur MLA in November 2011 criticised Kerala HC judges for banning road meetings, and in his exuberance called the judges ‘sumbhan’, which roughly means ‘idiot’ in Malayalam.

The HC judges could not stomach the criticism and convicted him for contempt of court and punished him with six months imprisonment. On January 30, 2015, an SC bench headed by Justice Vikramjit Sen upheld the HC verdict, but was kind enough to reduce Jayarajan’s punishment to four weeks in jail.

On November 9, 1967, then Kerala chief minister EMS Namboodiripad in a press conference described the judiciary as “an instrument of oppression” and was hauled up for contempt of court. A bench headed by then CJI M Hidayatullah convicted him of contempt, but fined him Rs 50 [1970 AIR 2015].

On November 28, 1987, then law minister P Shiv Shankar at a Bar Council of India function in Hyderabad made a scurrilous statement, “Anti-social elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.”

Referring to Lord Dennings’s views in R vs Commissioner of Police, a bench led by then CJI Sabyasachi Mukharji had let off Shiv Shankar and had said the SC’s shoulders were broad enough to take criticism [1988 AIR 1208].

Would a commoner have been lucky like Namboodiripad or Shiv Shankar? Arundhati Roy would not agree. What exactly hurts judiciary’s sensitivity and credibility is difficult to discern from judgments of the SC. Who makes the ‘objectionable’ or ‘contemptuous’ remark probably holds the key to the action that could flow from the SC

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