Judging the judge
Jyoti Punwani, TNN, May 3, 2010, 03.24am IST
Last week, 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.”