THE Contempt of Courts Act, 1971, defines civil contempt as wilful disobedience of any judgment, decree, direction, order or other process of a court or wilful breach of an undertaking given to a court. The Supreme Court on September 30 and on October 1 found force in the argument advanced by the All India Anna Dravida Munnetra Kazhagam (AIADMK) that the bandh observed in Tamil Nadu on October 1, against the delay in implementing the Sethusamudram Ship Channel Project, was illegal and amounted to contempt of court.
The Supreme Court deemed it as illegal because it was seemingly against its judgment in CPI(M) vs Bharat Kumar, delivered on November 12, 1997. In that judgment, it had reiterated an earlier judgment delivered by the full Bench of the Kerala High Court (Bharat Kumar vs. State of Kerala) in 1997 that there cannot be any right to call or enforce a bandh, which interfered with the exercise of the fundamental freedoms of other citizens, in addition to causing national loss in many ways.
The High Court had reasoned that the fundamental rights of the people as a whole could not be subservient to the claim of the fundamental right of an individual or a section of people. The Supreme Court had agreed with this reasoning and with the distinction drawn by the High Court between a bandh and a call for a general strike, or hartal, with reference to the effect of a bandh on the fundamental rights of other citizens.
A Supreme Court Bench comprising Justice B.N. Agrawal and Justice P.P. Naolekar held a rare sitting on a Sunday (September 30) just to give interim relief to the petitioner, the AIADMK. The party was aggrieved with the Madras High Courts refusal on September 28 to stay the bandh even after recording its finding that the form of protest that was being planned for October 1 was a bandh. The Supreme Court Bench said that from a bare perusal of the courts 1997 decision, it would be clear that neither could anybody give a call for a bandh nor could the same be enforced.
It concluded that if the interim order was not passed in a case like this, the main case would become infructuous. Besides, the Bench was prima facie of the view that the call given by political parties in Tamil Nadu was for a bandh and not for a hartal. Therefore, it restrained the political parties, including the ruling Dravida Munnetra Kazhagam, the Indian National Congress, the Communist Party if India (Marxist), the Communist Party of India and the Pattali Makkal Katchi, from proceeding with the call for a bandh on October 1 or on any other day, pursuant to their resolution dated September 24.
Senior counsel for the State of Tamil Nadu Altaf Ahmed and counsel for the DMK A.K. Ganguly told the Bench that what was contemplated in the September 24 resolution was only a hartal. The linguistic hair-splitting failed to convince the Bench, which was confronted with the text of the resolution as well as the State governments September 27 directions as put out in its press release. The resolution clearly stated that there would be muzhu velainirutham (general strike) and kadayadaippu (bandh). The press release, apart from issuing directions to maintain law and order, confirmed that these two forms of protests were planned for October 1.
On October 1, the AIADMK brought to the notice of Justice Agrawal (sitting with Justice Sathasivam) that by not running transport services and by keeping the shops shut, the government had failed to obey the directions issued by the Bench the previous day.
Justice Agrawal then observed: If what you say is true, then there is complete breakdown of the constitutional machinery in the State. We will recommend to the President to dismiss the DMK government in Tamil Nadu. Justice Agrawal continued: If you make out a case for contempt, we will not hesitate to call the Chief Minister and the Chief Secretary to this court.
The Supreme Court can neither direct nor recommend the dismissal of a State government to the President. There is no provision in the Constitution or in the Supreme Courts judgments on Article 356 to provide for such a misadventure by the Court. Obviously, the Judges observations were attributable to the surcharged atmosphere in the court and in the State, where the Chief Minister was on a fast, apparently showing no seriousness in obeying the Supreme Courts directive not to support the bandh call.
There can be no two views that the Judge ought not to have made those observations about getting the DMK government dismissed. The Judges threat is perhaps a sign of growing judicial exasperation with practical difficulties in enforcing court judgments.
However, the question whether the Tamil Nadu government is guilty of civil contempt remains. Not every act of disobedience constitutes civil contempt, but an element of wilfulness is a decisive factor. It is not clear whether the State government wilfully disobeyed the directive.
Chief Minister M. Karunanidhi clarified that the order staying the bandh had reached his government only at 10:30 p.m. on September 30, leaving little time to communicate the same to the people. Although the explanation of delay in the official receipt of the directions as a ground for not complying with the Courts order is meant to dispel the misgivings of wilful disobedience of the Courts directive, the clarification may fail to convince the Court, especially because the State governments and the DMKs counsel were present when the Bench issued the directions on the morning of September 30.
Any attempt to show that the protest observed on October 1 was a voluntary effort of all sections of the people, including trade unions and shopkeepers, would fail to convince the Court as the Kerala High Court, in its 1997 judgment, had rejected a similar contention. Inasmuch as the resolution was not rescinded prior to October 1, the bandh could not be described as voluntary.
In the Bharat Kumar case, the Kerala High Court Bench, which was headed by the present Chief Justice of India Justice K.G. Balakrishnan, had observed: Even if there is no express or implied threat of physical violence to those who are not in sympathy with the bandh, there is clearly a menacing psychological fear instilled into the citizen by a call for a bandh, which precludes him from enjoying his fundamental freedoms or exercising his fundamental rights.
Soli J. Sorabjee, counsel for the CPI(M) in its appeal against the High Court judgment, has suggested that the Supreme Courts concurrence with the High Court in this case required reconsideration. He wrote in an article on October 4 that this judgment and the apex court ruling in James Martin vs State of Kerala in 2003 reflected a judicial mindset that accords priority to law and order over the queer notions of fundamental rights of expression, association and assembly. He said: The crux of the matter, however, is that until these Supreme Court judgments are reconsidered or modified they hold the field and bind everyone. Therefore, he suggested that the Agrawal-Naolekar Bench was bound by these previous judgments and its order cannot be constitutionally faulted.
Sorabjee also argued in the same article that as the Bench did not pass any judicial order or direction recommending Presidents Rule, and refrained from expressing any judicial opinion about a breakdown of constitutional machinery in Tamil Nadu, its off-the-cuff observations should not be construed as judicial encroachment and that it was mischievous to raise the bogey of a tussle between the Court and the executive from a single Judges expression of anguish on account of the vehement submission of the AIADMK that the State was flouting the Courts order.V. Venkatesan