Contempt in contention

Published : Feb 03, 2001 00:00 IST

The issue of notice of contempt proceedings by the Jammu and Kashmir High Court to the editor of Kalchakra raises several issues of import.

QUESTIONS relating to the judiciary's powers to mete out punishment for contempt of court versus the freedom of the press have come into focus with the issue of suo motu notice by the Jammu and Kashmir High Court on December 26, 2000 to Vineet Nar ain, editor, printer and publisher of Kalchakra, to show cause why contempt proceedings should not be initiated against him for publishing an item.

In its issue dated December 16-31, 2000, Kalchakra, an occasional investigative journal published from New Delhi, had carried a story alleging misuse of authority by the Chief Justice of India, Justice A.S. Anand, when he was the Chief Justice of the Jammu and Kashmir High Court, to favour a litigant in return for the sale of two kanals (about 10,300 square feet) of land at a throwaway price to his daughter, Shabnam Anand in September 1985. The litigant, Krishna Kumar Amla, had filed a writ petition in the High Court in October 1985 challenging the notice issued to him by the Cantonment Board, Badami Bagh, Srinagar, seeking the demolition of a structure constructed on a piece of land in Srinagar which it claimed as its own, and allegedly encroached by Amla. Justice Anand (along with Justice K.K. Gupta) had heard his petit ion and granted a stay order. Kalchakra alleged that the court had also issued an order restraining the Cantonment Board from demolishing the structure that Amla had raised on the disputed land. Kalchakra claimed that the stay was not vacated so long as Justice Anand remained the Chief Justice of the Jammu and Kashmir High Court. Finally, on September 1998, the High Court upheld Amla's petition.

What the High Court found objectionable in the Kalchakra story is a reference to the allegation that the Judge who delivered the judgment on Amla's petition, Justice T.S. Doabia, had favoured the wife and mother-in-law of Justice Anand, in a case concerning certain land acquisition proceedings and involving them and the Madhya Pradesh Government (Frontline, August 4, 2000) when he was in the Madhya Pradesh High Court in 1995. The High Court also took objection to an allusion in the story t o the effect that Justice Doabia was a close friend of Justice Anand, and that the long-pending writ petition was only waiting for disposal by Justice Doabia, who was transferred to the Jammu and Kashmir High Court on his own special request.

In 1995, as a Judge in the Madhya Pradesh High Court, Justice Doabia had rejected a plea by the Madhya Pradesh Seed and Farm Development Corporation (MPSFDC) that only a land revenue court, and not a civil court, was competent to hear a dispute between t he State government and any individual over ownership of land under Section 57 of the Madhya Pradesh Land Revenue Code. The MPSFDC had filed a revision petition in the High Court against the trial court's order rejecting its preliminary objection opposi ng the jurisdiction to hear the dispute. Justice Doabia held that the MPSFDC, by no stretch of the imagination, could be kept on the same pedestal as the State government. However, the final decree of the High Court went against the State government, whi ch was asked to provide alternative land or cash compensation to the litigants.

In its notice issued to Narain, the Jammu and Kashmir High Court observed that the part of the story found contemptuous by it had the "tendency of bringing the administration of justice to disrepute by attributing disparaging motives and bias to a sittin g Judge of this court." The court also said in its notice that these insinuations had been printed and published in order to prejudice the public's faith in the judiciary. The court found that the objectionable remarks in the story had the tendency to sc andalise the court, thereby undermining the dignity of law and the institution of judiciary, which amounted to criminal contempt of that court.

The notice asked Narain to be present in court in Srinagar on January 23, and continue to do so on all days until the court passed final orders in the case. The contempt proceedings did not come up in the High Court on January 23, the day a bandh was cal led by the All Parties Hurriyat Conference. Narain did not go to Srinagar, and instead sent an application to the High Court for exemption from personal appearance on January 23, in view of threats to his life from terrorists. Narain claimed in his petit ion that his efforts to expose the Jain hawala scandal involving clandestine funding of terrorist groups through foreign exchange transactions had earned him the wrath and animosity of Kashmiri terrorists. He was under 'Y' category security cover from 19 96 to 1998. In view of the perceived threat to his life, Narain said he had requested the Director-General of Police, Jammu and Kashmir, to provide him security cover on January 23. As he had not received any reply to his request, he requested the High C ourt to ensure adequate security, so as to enable him to appear before it on any other day to which the case might be adjourned.

IN a significant intervention, former Prime Minister V.P. Singh, meanwhile, endorsed Nar ain's plea. In a letter to the Chief Justice of India and other Judges of the Supreme Court (he sent a similar letter to the Chief Justice of the Jammu and Kashmir H igh Court as well), V.P. Singh pointed out that Narain has been fighting against clandestine funding of militant outfits of Jammu and Kashmir, especially the Hizbul Mujahideen. In view of the dangers this exposed Narain to in Jammu and Kashmir, V.P. Sing h felt that it would be only fair to deal with the contempt case in Delhi, and requested the transfer of the case to the Delhi High Court. "This would be in public interest. Please treat this letter as my PIL (public interest litigation) in your Hon'ble Court," he wrote in a letter sent on January 22. When contacted by Frontline, V.P. Singh clarified that he had not commented on the merits of the case.

MEANWHILE, Narain challenged in the Supreme Court, through a special leave petition and a writ petition, the contempt notice issued by the High Court. The Supreme Court listed the matter for hearing on January 30. In his petitions Narain argued that the High Court's order was violative of his rights under Articles 14 (Right to equality) 19(1) (a) (Right to freedom of speech and expression) and 19(1) (g) (Right to practise any profession, or to carry on any occupation) and 21 (Protection of life and pers onal liberty) of the Constitution. Narain sought an ex-parte stay on the High Court's notice to him, exempting him from personal appearance before the High Court, and the transfer of the case to the Delhi High Court.

Informed observers have noted that the Jammu and Kashmir High Court did not find Kalchakra's allegations against Justice Anand to be contemptuous even though they pertained to his previous tenure in that court. At a seminar held in New Delhi on 'C orruption in the Judiciary, and the relevance of the Contempt of Courts Act in a Democracy,' under the auspices of the People's Vigilance Commission, a non-governmental organisation, on January 20, former Punjab Director-General of Police K.P.S. Gill ask ed why a contemnor should be asked to appear before the High Court in Srinagar, when important State government institutions themselves shift to Jammu during the winter season. Senior Congress(I) leader Vasant Sathe, who spoke at the meeting, called for fair investigations against erring judges. He felt that the misuse of the Contempt of Courts Act to protect a controversial Judge was a dangerous prospect, and it could not be tolerated in a democratic society. The meeting was briefly disrupted when Bhim Singh, president of the Panthers Party of Jammu and Kashmir and an advocate, clashed with the organisers, protesting against the remarks against Justice Anand by one of the speakers.

In cases similar to the present one involving Kalchakra, courts in the recent past have taken different positions. In recent weeks, Kalchakra published in four issues allegations involving misuse of office and improper land acquisition agai nst Chief Justice Anand, but the Supreme Court has so far chosen to ignore them. The journal also repeated its allegations against former Chief Justice J.S. Verma and Justice S.C. Sen, even though the Supreme Court had dropped contempt proceedings on the same issue against Narain in April 2000 while expressing the hope that he would be more careful and discreet in such matters in future. The Supreme Court Bar Association had filed a contempt case against Narain for publishing an article concerning Verma and Sen with a "deliberate intention to denigrate the Judges." The SCBA had alleged that the contents of the article obstructed the administration of justice by attributing to the Judges dishonesty and corruption (Frontline, August 4, 2000).

IN another case the Supreme Court sentenced a Chennai-based advocate, S.K. Sundaram, to six months' imprisonment for "gross criminal contempt of court," (Frontline, December 22, 2000). Sundaram had sent a telegram to the Chief Justice of India dem anding that he quit office for he had already reached the age of superannuation. He had followed it up by lodging a criminal complaint against the CJI, which was rejected by a court in Chennai.

A Supreme Court Bench comprising Justices K.T. Thomas and R.P. Sethi, in its judgment delivered on December 15, suspended the sentence for one month, within which period Sundaram was required to give an undertaking that he would not commit or attempt to commit any further act of criminal contempt. Sundaram gave such an undertaking, and the sentence would now remain suspended for five years. The court could revive the sentence any time, during or after these five years, should Sundaram commit any further act of criminal contempt.

Independent of the merits of Sundaram's actions, there is a feeling among informed observers that the apex court has defined the scope of criminal contempt in terms that are much too broad. The Contempt of Courts Act, 1971 defines "criminal contempt" as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act, whatsoever which i) scandalises, or tends to scandalise or lower the authority of any court or ii) prejudices or interferes with the due course of any judicial proceeding; or iii) interferes or obstructs the administration of justice in any other manner.

Can sending a telegram to a Judge be construed as an act of criminal contempt? It is possible that a group of people, aggrieved by a judgment, may choose to send letters, telegrams or other communications to register their protest. Observers note that so me victims of the Bhopal gas leak disaster did so, aggrieved by one of the Supreme Court's judgments in the case involving them. If the people displaced by the Sardar Sarovar Project choose to express their outrage against the Supreme Court's judgment in the case which went against their interests, could that be considered an act of contempt, it has been asked.

In the Sundaram case, the Supreme Court held that a telegraphic message is not like a letter written in hand by the sender and put in a sealed cover to be opened only by the addressee for reading. What about post cards, the cheapest means of communicatio n available to a poor litigant, to convey their disapproval of a judge or his judgment? Will the Supreme Court then equate a post card with a telegram? The Supreme Court has noted that when Sundaram filed a criminal complaint in the court in implementati on of the telegraphic threat posed to the CJI, He appended a copy of the telegram therewith. "Thus he made it public at his own volition," the Bench observed. However, informed observers note that the contents of Sundaram's telegram and complaint became public only after the Supreme Court issued a suo motu notice to him.

The Supreme Court has also underlined the fact that if an act is not one of criminal contempt merely because there is no publication, such an act will automatically fall within the purview of the other category because the latter consists of "the doing o f any other act whatsoever". The latter category is thus a residuary category which is so wide that no act of criminal contempt can possibly escape from it, the Bench ruled in the Sundaram case. Could this residuary power, even if it is sanctioned by the Act, threaten any genuine attempts to seek judicial accountability?

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