New Delhi: On November 11, a Supreme Court bench comprising justices Ranjan Gogoi, Prafulla C. Pant and Uday Umesh Lalit issued a notice to “show cause why contempt proceedings should not be drawn up against Justice Markandey Katju and he be appropriately dealt with”.
The issue of the notice itself suffers from a serious flaw, which went unnoticed or ignored by the bench and others in the courtroom that day, as neither Justice Katju nor Attorney General Mukul Rohatgi, who had the privilege of assisting the bench, brought this to its attention.
The notice ignores the well-recognised legal principle that no one should be a judge in his own cause. The principle suggests that the deciding authority must be impartial and without bias, and implies that no man can act as a judge for a cause in which he himself has some interest.
Drawn from the Latin phrase nemo judex in causa sua, this is a principle of natural justice which is invoked to prevent any appearance of a possible bias, even if there is actually none, in order to adhere to the adage that “justice must not only be done, but must be seen to be done”.
The order issuing the notice refers to Justice Katju’s blog, wherein he explains a grave error in the judgment delivered by a bench presided over by Justice Gogoi, and adds that “it is not expected of judges who had been in the legal world for decades”. The order reproduces another sentence from the blog as follows:
“Even a student of law in a law college knows this elementary principle that hearsay evidence is inadmissible”.
Justice Katju made this comment in the context of his criticism that the bench committed a serious error in admitting the hearsay evidence of a bystander. In the Soumya murder case, which was before the Supreme Court in the review proceedings, the bench acquitted the accused, Govindachamy, of murder charges, even though it found him guilty of assault and rape, and sentenced him to life imprisonment.
This was because the bench concluded that there was no evidence to show that the accused was responsible for Soumya’s fall off the train and as a result, her second injury, which proved to be fatal. To support this conclusion, the bench relied on the statement of a middle-aged bystander, who was untraceable, but nevertheless reliable in terms of Section 6 of the Indian Evidence Act, because the bystander was heard making that statement by two witnesses contemporaneously. The bystander was quoted by two prosecution witnesses as saying that he saw Soumya jumping and escaping.
During the review proceedings before the court on November 11, both Justice Katju and Rohatgi vehemently challenged the bench’s reliance on the bystander’s statement. According to Justice Katju, although the bystander’s statement is admissible under the Evidence Act, it was not credible and should have been discarded by the bench. He also added that whether Soumya jumped, was pushed by the accused or fell as a result of an accident made no difference as there was already a threat to her life from the accused, owing to the first injury she suffered, and had she remained on the train, she would have faced certain death from the accused. The thrust of their arguments was that there was no option available to her but to jump from the train and risk the second injury.
There is evidence to suggest that the accused caused the first injury, as they were alone in that train compartment. But the medical opinion was that the first injury alone was not sufficient to cause her death. Because of this medical opinion, the bench did not find the accused guilty of murder.
But it was Justice Katju’s next statement on his blog that seems to have infuriated the bench. The order reproduces this paragraph from the blog as follows:
“Justice Gogoi, who is in line to become the Chief Justice of India on the basis of seniority, has shown that he does not know an elementary principle of law, namely that hearsay evidence is not admissible (see Paragraph 16 of his judgment in the Soumya murder case).”
The order then says:
“Reference to the author of the judgment must necessarily include the other members of the Bench. Prima facie, the statements made seem to be an attack on the Judges and not on the judgment”
The distinction the order draws between criticism of the judgment and the attack on judges, as perceived by the bench prima facie, would suggest that the latter might justify the issue of the notice by the bench that was under such attack by Justice Katju.
But legal precedents support the contention that judges who are the specific targets of criticism by a person accused of contempt, cannot determine whether a notice of contempt can be issued against that person.
Therefore, the question that arises is whether Justice Gogoi and his colleagues on the bench, in keeping with the principle of natural justice, should have recused themselves, and simply passed an order requesting the chief justice to consider placing the matter before another bench, which none of the three judges were part of.
Precedents clearly support this course. On November 6, 2009, an application was filed by senior advocate and amicus curiae Harish Salve drawing the attention of the Supreme Court to certain statements made by advocate Prashant Bhushan in the course of his interview with Tehelka magazine. In the interview, Bhushan stated that although he did not have any proof for his allegations, at least half of the last 16 chief justices were corrupt.
Bhushan also made a serious imputation against the then chief justice of India, the late Justice S.H. Kapadia, alleging misdemeanour with regard to the hearing of a matter involving Sterlite, in which Justice Kapadia had some shares.
It was alleged in Salve’s application that Bhushan deliberately omitted to mention that Justice Kapadia had disclosed this to the counsel, who had no objection to his hearing the matter.
When Salve’s application was placed before the bench comprising then Chief Justice K.G. Balakrishnan and Justice Kapadia, directions were given to issue notice and to post the matter before a three-judge bench of which Justice Kapadia was not a member. The order clearly mentions as follows:
“It should , however, be indicated that Justice Kapadia was not a party to the aforesaid order that was passed”.
Justice Kapadia recused himself before Chief Justice Balakrishnan could pass that order, and the matter was heard by another bench comprising justices Altamas Kabir, Cyriac Joseph and H.L. Dattu. This case has been pending since 2012, with Bhushan refusing to apologise, although he clarified that he did not doubt the integrity of Justice Kapadia.
Given this precedent of Justice Kapadia recusing himself before the initiation of contempt proceedings against Bhushan as the matter involved allegations against himself, observers ask whether the issue of contempt notice to Justice Katju by the Supreme Court suffers from a lack of propriety and violates the principle of natural justice.
While the contempt notice is vulnerable to challenge on this ground alone at the admission stage, there are enough reasons to suggest that the notice is not likely to stand legal scrutiny.
Going by legal precedents, observers say that a criticism of a judgment, even if it is intemperate in language, cannot meet the ingredients of the offence of contempt of court under the Contempt of Courts Act 1971, unless the accused attributed motives to a judge or his criticism obstructed the administration of justice.
Justice Katju did not attribute motives to Justice Gogoi and the other judges on the bench, which delivered the judgment in the Soumya case. If one reads the portions reproduced by the bench in its November 11 order, it is clear that Justice Katju was only expressing his disappointment and his belief that Justice Gogoi and the other judges erred in admitting hearsay evidence, because as he believed, they were ignorant of the law.
The bench appeared to contradict itself by considering Justice Katju’s blog post prima facie contemptuous, meriting a notice, whereas it heard him making the same submissions on November 11, when he repeatedly told the bench that its reliance on the bystander’s statement was against “common sense”, which led to considerable mirth among those assembled in the courtroom.
The bench heard him say so without hinting that his repeated use of the word “common sense” to explain the perceived error in the judgment caused them any offence, nor did it warn him that the insinuation was unacceptable.
Justice Katju’s criticism could also not be construed to have obstructed the administration of the judiciary, another key ingredient of the offence of contempt of court. The very fact that the bench invited him to assist the court in the review proceedings and duly considered his views before finally rejecting the review petitions shows that the administration of justice was not affected by Justice Katju’s remarks.
In one of the previous judgments dealing with contempt of court, the Supreme Court had held as follows:
“To criticise a judge fairly albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it. The Court must avoid confusion between personal protection of a libelled judge and prevention of obstruction of public justice and the community’s confidence in that great process. The former is not contempt, but latter is, although overlapping spaces abound.”
One of the normative guidelines prescribed for the judges by the Supreme Court itself is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation through dignified bearing.
In P.N. Duda v P. Shiv Shankar (1988), the Supreme Court found then union law minister Shiv Shankar’s statement that the judges of the Supreme Court had ‘unconcealed sympathy for the haves’ as an “expression of opinion about an institutional pattern”.
The Supreme Court, in that case, found one of Shiv Shankar’s utterances to be rather intemperate and that was to the following effect:
“Anti-social elements, i.e., FERA violators, bride burners and a whole horde of reactionaries have found their haven in the Supreme Court”.
The court explained thus:
“This, of course, if true, is a criticism of the laws. The Supreme Court as it is bound to do has implemented the laws and in implementing the laws, it is a tribute to the Supreme Court that it has not discriminated between persons and persons. Criminals are entitled to be judged in accordance with law. If anti-social elements and criminals have benefitted by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The courts are not deterred by such criticisms”.
The court was clear that the minister’s speech did not bring the administration of justice into disrepute or impair the administration of justice.
The bench said that the minister could have achieved his purpose by making his language mild but his facts deadly. “It must be held that there was no imminent danger of interference with the administration of justice, nor of bringing the institution into disrepute,” the court had concluded in that case.
To many, the Supreme Court’s judgment in the Shiv Shankar’s case has a lot of relevance to Justice Katju’s contempt case, even if the bench found Justice Katju to be wrong in his understanding of the Evidence Act.
According to reports, Justice Katju is likely to engage as his senior counsel, eminent lawyer Fali S. Nariman, to defend him in the contempt proceedings before the Supreme Court. He has also removed some more posts that are critical of Justice Gogoi, which he published after the November 11 hearing in the Supreme Court.
It is likely that the Supreme Court’s departure from these two precedents would be raised by Justice Katju and his counsel in the contempt proceedings against him.