Harish Salve explains SC powers on contempt


NEW DELHI: If a person is found guilty of committing contempt of Supreme Court, will the apex court’s constitutional power to punish him be circumscribed by the Contempt of Court Act (CCA) provisions?

Senior advocate Harish Salve, appearing in the application filed by Vodafone complaining about misreporting during the hearing of its case, said CCA only provided the guiding principles and would in no way limit the apex court’s power on quantum of punishment, which in appropriate cases could exceed what is provided in the statute. The response came to a query from a five-judge bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar whether Article 129 of the Constitution, which provides that “the Supreme Court shall be a court of record and shall have all powers of such a court including the power to punish for contempt of itself”, meant it was bridled by the CCA.

After hearing Salve’s view, the CJI said though the bench had not taken any final view, it was of the opinion that provisions of a statute could not limit the Constitution-vested powers of the apex court. In the midst of long deliberation on the necessity of framing media reporting guidelines to protect right of an accused to reputation and dignity as well as preserve sanctity of fair trial, the bench asked for Salve’s view on restricting press freedom derived from right to free speech and expression guaranteed under Article 19(1)(a) of the Constitution and whether it could only be done through parameters specified under Article 19(2).

The senior advocate said, “The Supreme Court need not deal with the restrictions specified under Article 19(2) because it is only engaged in an exercise to define the contours of press freedom in reporting pending investigation or trial of a case and balancing it with the right of the accused to dignity and reputation.”

Salve said these days it was common to find TV channels standing outside a house being raided by investigating agencies and telecasting minute by minute details of the search operation. “This surely besmirches someone’s reputation. What happens if the agency does not find any incriminating material or does not press any charge at the end of the investigations? Can he not move the constitutional courts seeking relief on the ground that such reporting was destroying his reputation,” he asked.

“The media should be beyond government regulations except acceptable censorship. But to argue that media is beyond all regulation is the limit,” he said. Salve also objected to media using unnecessary hyperboles to describe intense questioning by a bench in serious issues.

He said, “Judges ask sharp questions to get the best out of lawyers. There is no pulling up, tearing into or lambasting involved in the oral argument-based judicial scrutiny system in India. There is a talk of restraining judges from making comments on institutions. If anyone has to exercise restraint, it is the reporters who cover the courts, not the judges nor the lawyers who must not be inhibited in any manner from free and frank exchange of views.”

Counsel Nitya Ramakrishnan said the investigating agencies had been regularly leaking information to media to prejudice an accused branding him as a terrorist though ultimately he might get acquitted in a trial. Appearing for Rajasthan government, counsel Manish Singhvi said a state producing clear and cogent evidence of consistent media misreporting could seek temporary deferment of publication for a limited period.

“However, the order for postponement of publication must be direct, proximate with investigation and must be least intrusive to the freedom of press/electronic media. Thus, the press has a right to report even criminal sub-judice matters as long as they do not impair or destroy fair investigation,” he said. Singhvi said subordinate courts had sovereign power to dispense justice and hence, they had inherent powers to pass appropriate orders to secure the ends of justice.

Don’t lay guidelines, outline contours of press freedom: Salve


NEW DELHI: Former solicitor general Harish Salve on Wednesday said the Supreme Court should make the media aware of the boundaries within which it must operate while reporting court proceedings and suggested that the constitutional court must bring clarity to the contours of press freedom to prevent breach of a citizen’s right to fair trial and right to life with dignity, guaranteed under Article 21.

He agreed with most lawyers in telling a five-judge bench of Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, R P Desai and J S Khehar that it was not for the apex court to frame guidelines but disagreed with other senior advocates who had said that the court could have a case-to-case approach in scrutinizing media reports for transgression of right to life related sub-rights of an accused or a private citizen.

“The Supreme Court is not Press Council of India to tell the media what should not have been written. Media too cannot decide what should be the spread and extent of its right to report conferred on it to meet the people’s right to know. So, the Supreme Court is the only organ under the Constitution which can bring clarity by declaring the contours of right to free speech and expression under Article 19(1)(a) by balancing it against the crucial right to life,” Salve said.

“What the Supreme Court declares as the limits under Article 19(1)(a) will be abided by the responsible media, most of whom are very responsible. That is the surest way to safeguard citizen’s right to life which encompasses their right to privacy and right to live with dignity in a society,” said Salve, who appeared in an application moved by Vodafone months ago complaining about misreporting.

The senior advocate said continuous commentary on the merits of a case while it was being argued and targeting of individuals by media had a chilling effect on judges and lawyers, inhibiting free and frank discussion in a court room. “After all, judges and lawyers are human beings. The court should clarify if such reporting puts in peril such discussion during court proceedings,” he said.

Salve said government’s affidavits could be reported by the press even before it came up for court scrutiny. But if scurrilous allegations were made in any affidavit branding people as terrorists, murderers or money launderers, then the media has to wait till the court scrutinizes the contents of the affidavit in an open court hearing, he said.

The bench asked, “In our country the ground reality is that suit for damages or defamation is not an efficacious remedy against such errant reporting as it would take 20 years for conclusion of such proceedings. Will a high court or the Supreme Court be accused of violating Article 19(1)(a) if it entertained a petition from a person aggrieved by scurrilous allegations reported in the media and passed a temporary restraint order?”

Salve said constitutional courts would be well within their limits to entertain and pass appropriate orders on a writ petition from a private citizen complaining that his/her reputation was being destroyed by scurrilous allegations repeatedly reported by TV channels or print media.

If Salve cited Nupur Talwar case to point at spurious effects of brazen media coverage on a person and his right to fair trial, former law minister Ram Jethmalani cited the Jessica Lal murder case proceedings in Delhi High Court to highlight miscarriage of justice because of sustained media campaign.

Before concluding his arguments, Jethmalani said the courts have power to order repeat publication of material that hurt the right of the accused to fair trial or interference in the administration of justice. “Guidelines on media reporting will not solve the problem. On the contrary, it may create additional problems. The solution lies in enforcing Contempt of Court Act. Send one or two persons to jail under the contempt law and that will bring sanity in reporting,” Jethmalani said.


Judiciary can’t regulate press freedom: Jethmalani

Ram Jethmalani (born September 10, 1923) is an...
Ram Jethmalani (born September 10, 1923) is an Indian politician and a famous and controversial criminal lawyer. (Photo credit: Wikipedia)


NEW DELHI: Former law minister, MP and senior advocate Ram Jethmalani on Tuesday told the Supreme Court that it would be unconstitutional to curtail or regulate press freedom through judicially evolved guidelines because Parliament alone was competent to undertake this exercise through legislative route.

Appearing for a media association before a five-judge constitution bench comprising Chief Justice S H Kapadia and Justices D K Jain, S S Nijjar, Ranjana P Desai and J S Khehar, the octogenarian lawyer suggested that the best method to evolve guidelines for reporting subjudice matters without infringing the rights of the accused was to seek consensus through meetings between judges, lawyers and leaders of the media.

“The guideline evolved through this process could be recommended to Parliament for appropriate legislative action. I can assure you that Parliament would act on such a recommendation,” he said.

Though the bench had doubts about the efficacy of normative guidelines in protecting fair trial because of excessive reporting intruding into the domain of judges in certain cases, it said, “If we have to recommend, we will do so. There is no problem at all. But the limited question is what should the court do when a person approaches it complaining against media’s blatant breach of his right to presumption of innocence till pronounced guilty? Would the court be breaching Article 19 if it protects the right of the accused by ordering deferment of reporting for a short period.”

Jethmalani was unrelenting. He said, “A pre-publication ban is ultra vires. A guideline to this effect is unconstitutional. Even if the Supreme Court has some legislative power, when the issue involves Article 19, restrictions must come from a statute made by Parliament.”

However, he agreed that if a constitutional court was convinced that a newspaper report compromised the right of an accused and jeopardized fair trial or administration of justice, it could surely put a ban on subsequent publication of the matter.

Jethmalani said the malady of misreporting or biased reporting could be controlled if the judges shed their populist approach and sent a couple of errant journalists to jail under contempt of court law.

“Contempt of court law is not invoked as much as it should be to invoke the fear of god in journalists. The court will not have to worry about media guidelines if contempt jurisdiction is invoked and sent a message that press cannot get away with contemptuous reports,” he said.

Appearing for the Statesman newspaper, counsel Madhavi Goradia Divan argued against court-framed media guidelines saying mere reporting of trial proceedings would not vilify anyone as the public was aware of the cardinal principle ‘presumption of innocence till pronounced guilty’.

On the flip side, she said well-intentioned guidelines could be taken out of context and attempts would be made to achieve something which was completely different from what the court was intending to do. “The trial courts are well aware of the powers conferred on them to control reporting of proceedings in a criminal case,” she said.

The bench clarified, “Our effort is not to punish but to prevent. This exercise is an awareness process for everyone. We want to put in guidelines to avoid certain situations by deferring reporting for a limited period of time. We are not going into reporting of other wings of government but of a limited restraint on reporting as far as court proceedings are concerned.” The arguments will continue on Wednesday.

Judiciary can’t regulate press freedom: Jethmalani

Update on the Contempt Case of Prashant Bhushan, Senior Advocate


Senior Advocate Mr. Shanti Bhushan files affidavit in support of Prashant Bhushan in the Contempt case in Supreme Court

Senior Advocate Mr Shanti Bhushan filed an application for being impleaded as Respondents in the Contempt of Court proceedings against his son Mr Prashant Bhushan. In his application, he has stated “[O]ut of these [16 previous Chief Justices], eight were definitely corrupt, six were definitely honest and about the remaining two, a definite opinion cannot be expressed.” He has also placed on record a list of corrupt judges in a sealed cover.

Read his application


Prashant Bhushan files additional affidavit in Supreme Court on Contempt of Court Proceedings

The Controversy began when Prashant gave an interview in Tehalka and expressed that out of the last 16 to 17 Chief Justices, half have been corrupt. Mr Harish Salve, who was acting as Amicus Curiae in one of the mattersin Supreme Court filed a Contempt of Court Petition in the Supreme Court. Court issued notice to Prashant and Prashant filed his first reply to this. In this reply, he gave some instances of corrupt practices of some of the previous Chief Justices. Prashant filed second affidavit to place on record some facts, material and evidence which he was aware of when he made the statement about the former Chief Justices, so as to dispel any impression that his statements were baseless or made with reckless disregard to the truth. However, Prashant reiterates that in his statement about half of the last 16-17 Chief Justices being corrupt, he “certainly did not intend to paint the entire judiciary or the entire Supreme Court with the same brush”.

Read the recent affidavit


Source : http://www.judicialreforms.org

Against abuse of the contempt power

The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance.

Justice V. R. Krishna Iyer in THE HINDU

‘We, the People of India’ made the Constitution and the sovereign republic of India, and all power exercised by the three instrumentalities of state function under the Constitution. Its Preamble speaks of justice — social, economic and political — as a fundamental privilege of the people. Social justice and equality before law are of more value to the common masses, while the higher classes are often allergic to the under-privileged and the have-nots.

The judges of British vintage are class-conscious, as Professor Griffith of London University explained in his book, The Politics of the Judiciary. Their perspective is prejudicial to the majority of Indians who are poor and do not enjoy human rights though they are mandated in the Constitution as a fundamental right.

The judiciary as a class must reorient its basic philosophy to suit a socialist secular democratic republic. This transformation is essential if fiat justicia is to be a paramount principle of governance in India as emphasised by Jawaharlal Nehru in his tryst-with-destiny speech as India became independent.

Lord Justice Scruttin said in an address delivered to the University of Cambridge Law Society on November 18, 1920: “Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labourman or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.” (1 Cambridge Law Journal, Page 8).

The Constitution gives you power. And all public power is held as a trust. If you breach this trust you pay for it: by facing responsible criticism. When there is justice, which is your professional-fundamental duty, criticism loses its sting. And the Preamble to the Constitution spells it out. Social, economic and political justice is your basic obligation, which you have to fulfil without fear or favour. If you fail here, you disrobe yourself and deserve correctional criticism.

The judicature is a noble and never a nocent institution. If you goofily debunk and unjustly bring the judiciary into disrepute, you judges commit contempt and get punished. The court is a magnanimous institution, majestic and glorious, and it sustains the confidence of the nation. But if the judiciary behaves as an elite upper sector and denies the rights of the common masses, criticism is what you earn. Remove those judges who conduct themselves with a sense of contempt for social justice and human rights: that is the fascist, authoritarian way.

“Small is beautiful,” said Gandhiji. You sneer at the slum-dweller, the ill-clad and the illiterate. You are not pro-people. Remember the Roman adage: “Whatever touches us all should be decided by all.” Then you as a member of a class-conscious sector must be denounced.

Above the Executive and Legislature is the Judiciary to guard the values of the Constitution with integrity, fearlessness, frankness and fraternity. That is your institutional glory. No one shall darken your bright image. The little poor seek your compassionate protection. You are the wonder of democracy. I salute you as the humanist defender of people’s constitutional rights. When you fail to function, sharp criticism is the only corrective. The question then arises: have the people a right to criticise you, and if so, when does it become contempt of court, and what are the limitations to this freedom of expression?

This has become a critical issue. Judges as an instrumentality under the Constitution have vast powers under Article 141 to 144. When the Executive misuses its powers, the court can strike down its actions. When the Legislature commits excesses beyond the Constitution or otherwise defaults, the court can declare it void. When judges themselves are guilty of flaws, shortcomings or violations, public criticism is the only way judges can be corrected.

Frankfurter of the U.S. Supreme Court observed: “‘Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

After all, judges are human and may commit mistakes and blunders. Either a Performance Commission or vigilant, vibrant public criticism, dignified and responsible, should correct judicial wrongs. With large powers and a considerable level of immunity, judges are apt to turn noxious and culpable at times. Generally the robed brethren maintain a high order of conduct. Even so, aberrations do happen. Therefore, criticism becomes necessary in a democracy. The Constitution insists that judges should be of good behaviour. The Bench is a sacred seat and divinity is incompatible with arrogance, pride and vanity.

Hugo Black, a great judge of the U.S Supreme Court, observed: “Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal.”

Indian judges belong to an elite class like their English counterparts, and can be relieved only by impeachment which is a political operation beyond the pragmatic capabilities of the masses. Therefore, a Performance Commission is an essential instrument to receive complaints about judges and investigate them. Their dignity and decorum never allow frivolity or private motives to affect the functions of, or inflict injury on, judges. Transparency and accountability are democratic attributes. In spite of this, vulgar elements in public life misuse free speech and abuse judges irresponsibly and with a sense of revenge. They deserve to be punished by the punitive use of the power of contempt. This power is wide.

Lord Denning in his Family Story has recorded what Lord Shawcross said about one of his judgments: “Denning is an Ass.” The Times (of London) published this. In spite of it, Lord Denning declined to take contempt action since he took the view that he would disprove it not by contempt proceedings but by means of his performance. Of course, he was the best judge of the Commonwealth.

This is an example for judges in India, too. The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance. Of course, rare cases may deserve contempt impeachment. Bad judges deserve to be censured by a Performance Commission with access to every citizen. How many judges in our High Courts are good by the canon laid down by Douglas? He wrote: “… [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.”

The weakness of many judges who escape through contempt power but should not, was portrayed by Lord Goddard: “A judge of first instance need not necessarily be a consummate lawyer. He should be a man of even temper and one who can be trusted to display and continue to display courtesy to the litigants and bar; in short, if I may use a much-abused expression, he should be a gentleman. A sense of humour … is always an asset, but a constant joker is anathema. Another quality devoutedly to be wished for is the ability to keep reasonably silent while trying a case. A garrulous judge is a misfortune; he maddens the bar and slows up proceedings, but, unhappily, it does happen that a somewhat taciturn barrister becomes surprisingly talkative once he is seated on the bench…. The public expression of what some would call strong convictions, and others prejudice, are best avoided by those who desire to become judges.”

And here is a statement by ‘Learned Hand:’ “The larger part of my official life I have been in a court where three sit together, and that seems to me of immense advantage; indeed, I know it is an immense advantage. The joint judgment of three is worth much more than three times the judgment of one, unless he is a genius.”

But how many of our learned brethren will qualify to be on the Bench if this test were a condition for elevation?


SC to hear contempt matter against Prashant Bhushan on Mar 25

New Delhi: The Supreme Court today said it will consider on March 25 the plea for taking suo motu cognizance of contempt action against noted advocate Prashant Bhushan who was issued with a notice for allegedly casting aspersions on a senior apex court judge and previous chief justices of India.However, before a three-judge Bench headed by justice Altamas Kabir fixed the date, senior advocate Ram Jethmalani, appearing for Bhushan, said there was a danger in proceeding with contempt proceedings.

“Upholding the dignity of the court should be the first priority of the court. This proceeding will damage the dignity of the court and institution rather than restoring it,” he told the Bench also comprising justices Cyriac Joseph and HL Dattu. Senior advocate Harish Salve, who had moved the application for the Court to initiate suo motu contempt against Bhushan, wanted the Bench to relieve him of the duty of amicus curaie on the ground that several allegations have been made against him by the alleged contemnor.

Salve said that in the counter-affidavit, Bhushan has made personal allegations against him and as such he had not responded to them and was seeking the court’s permission to relieve him from the duty of amicus curaie in the matter. However, the Bench persuaded him to continue saying the personal allegations against him should not come in the way when the matter relates the dignity of an institution. “We need your assistance as it is an issue about the dignity of the institution,” the Bench said.