The order
passed by the Three Judge Bench in the recent SuoMotu Contempt case against
Adv. PrashantBhushan has OVERRULEDthe
order passed by 2-Judge Bench in the SuoMotu contempt case Re: Vijay Kurle and
others.
The Three Judge bench headed by Justice Arun Mishra,
in their order dated 22.07.2020 have followed to a T the procedurelaid down in
the Supreme Court Rules as well as the binding precedents of the Supreme Court
unlike the order passed by the Bench of Justice RohintonNariman and Justice
Vineet Saranthat has thrown all the laws/rules/binding precedents out of the
window. The Bench of Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose
had further perpetuated the illegalities committed by the Bench of Justice
RohintonNarimaninstead of paying heed to the written and oral submissions of
the alleged contemnors in Re: Vijay Kurle and others.
The order passed by the three Judge Bench on
22.07.2020 in the matter of PrashantBhushan has vindicated the arguments put
forth by all three alleged contemnors in Re: Vijay Kurle and others.
Lord Buddha had said –
Three things cannot be long hidden: The Sun, the Moon
and the Truth.
The procedure followed by the Three Judge Bench in
PrashantBhushan’s case, now proves that the legal position pointed out by the three
alleged contemnors in Re: Vijay Kurle’s case was correct. The judgment dated
27.04.2020 and 04.05.2020 passed by the Bench of Justice (Retd.) Deepak Gupta
now stands overruled.
Full Bench in C. N. Rudramurthy's case (1998) 8 SCC 275, had ruled that, when
view taken by the Larger Benches is on the record then the Supreme Court cannot
re-examine a case which has by implication been declared incorrect. The other
contrary view by Smaller Benches stands
impliedly overruled.
Full Bench in The CIT
Bombay CityVs. R.H.Pandi (1974) 2 SCC 627had ruled that “…. Cursus curiae estlex curiae. The Practice of the Court is the law of the
Court. . ”
A comparative analysis of Re: Vijay Kurle vis-Ã -vis Re:
PrashantBhushan (both being cases of SuoMotu cognizance by Supreme Court) is
presented below, which clearly shows the stark illegalities committed by the
two judge Bench of Justice (Retd.) Deepak Gupta vis-Ã -vis accurate compliance
with Supreme Court Rules and binding precedents by the three judge Bench headed
by Justice Arun Mishra:
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Written Submissions of Adv. Vijay Kurle, Adv.
NileshOjha and Rashid Khan Pathan |
View of KANGAROO COURT of Justice Deepak Gupta
&Aniruddha Bose in order dated 27.04.2020 in the matter of Re:
Vijay Kurle |
Correct procedure as per law and followed by 3-Judge
Bench headed by Justice Arun Mishrain Re:
PrashantBhushan, on 22.07.2020. |
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(1)The directions given in P.N. Duda’s case are
made binding by the Three Judge Bench in BalThackrey’s Case (2005) 1 SCC
254, which mandates that any information based on which contempt of court
is alleged to be made out, such information must be placed on administrative
side first. If the cognizance is taken against this procedure then the
proceeding is vitiated. The conviction of Late Shri. BalasahebThackrey was
set aside for above reason. The information placed on administrative side can be
dealt by the Chief Justice himself or by any Bench nominated by the Chief
Justice. [Rehimvs M. V. Jayrajan
2010 SCC ONLINE Ker 3344 (FB)] |
The directions given in P.N. Duda’s Case (1988) 3
SCC 167 are not binding. If the permission of the Attorney General for
India is not obtained, then too the matter can be placed on Judicial side and
not on administrative side.
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Cognizance is taken by following procedure laid down
in P.N. Duda’s case. The petition by an advocate was first placed on the
administrative side and after taking decision, it was placed on Judicial side
by registering Suo-Motu Contempt Petition. By treating the advocates’spetition as an
information, the suomotu cognizance of contempt was taken. The procedure followed is very clearly mentioned in
para 1 of the order dated 22.07.2020. (Additional comment as part of the analysis: Since the rules and laws were openly flouted by the bench of Justice
RohintonNariman in Re: Vijay Kurle and others, there is no such order on the
record as what was passed in PrashantBhushan’s matter on 22.07.2020)
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(2)As
per the law,a Judge cannot act upon said document/letter without disclosing
its source. Nothing happens private in the court. If Judge
hides any facts, then he should be called as a witness. i)
Subramanian Swamy (2014) 12 SCC 344 ii)
Ram LakhanSharma (2018) 7 SCC 670 iii)
PradyumanBist 2017 /MANU/SC iv)
Murat Lal 1917 SCC OnLine Pat 1 v) Woodward
Vs. Waterbury 155 A. 825 |
With clever play on the words and flagrantly
misquoting facts (which the alleged contemnors are ready to prove to the
Court when it hears their Writ Petition), Justice Deepak Gupta, in the
judgment dated 27.04.2020 (in paras 41-43) took a view that - There is no need for a judge who takes cognizance
of contempt,to disclose the source of information and therefore failure of
Justice RohintonNariman to disclose the source of the letter as to how it
reached to his Bench, is not illegal. Para 42 starts with… “We
fail to understand how Shri Vijay Kurle can urge that the source of
information should be disclosed……” |
Proper procedure is followed by disclosing the
source as to how the Petition of one MahekMaheshwari filed by Adv.
AnujSaxena, has reached the concerned Bench. The Bench
has clearly disclosed the source and has stated in para 1 that as per the
decision on administrative side, the petition has reached the Bench. |
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(3)As per Rule 10 of ‘The
Rules to Regulate proceedings for Contempt of the Supreme Court, 1975’ only Attorney General or Solicitor General can be
asked to assist the Court. [S.K.Sundaramvs Unknown 2001(2)SCC 171] This procedure was followed by Constitution Bench in
Re: C.S. Karnan (2017) 7 SCC 1, Subramanian Swamy’s case (2014) 12 SCC 344.
|
The Bench of Justice Deepak Gupta, in clear
violation of this Rule has, vide order dated 30.09.2019 appointed a Private Counsel
Adv. SiddharthLuthra, to assist the Court. (Additional comment as part of the analysis: The appointment of private counsel vitiates the
conviction. [MedichettyRamakistiah AIR 1959 AP 659, Deepak Aggarwal (2013)
5 SCC 277]. Appointment of ineligible SiddharthLuthra as Amicus
and allowing him to claim lakhs of Rupees from Supreme Court Funds is an
offence under sections 409, 219,
120(B), 34 of I.P.C. as it amounts to misappropriation of public funds. |
Court has followed the proper procedure by asking the
Attorney General to assist the Court. The order dated 22.07.2020 clearly states : “We issue notice to the Attorney General of India and to Mr.
PrashantBhushan, Advocate also.” |
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(4)For Suo-motu cognizance of Contempt, the Court is
bound to mention in the order that it is a suomotu cognizance. Mere issuance of notice is not sufficient. The
Registry of the Supreme Court at its own cannot register the case as
Suo-motu. Three Judge Bench in Biyani Dash (2005) 9 SCC 194
hasmadeit clear that the
failure of the Court to mention in the order the word suo-motu cognizance is sufficient ground to discharge the alleged
contemnor, if it was not with the permission of Attorney General. [Antonio
Sequeira 2008 SCC OnLineBom 911, Surendra Sharma 1999 SCC OnLine All 1483] Point 4 continued…. The meaning of action of suo-moto
cognizanceis action by Chief Justice only or by a Bench nominated by the
Chief Justice,that
too on the Administrative side and not on judicial side. [Nandlal
Sharma vs. Chief Secretary 1984 WLN
161 (DB), Rehimvs M. V. Jayrajan 2010 SCC ONLINE Ker 3344 (FB) , Amicus Curiae Vs.
PrashantBhushan (2010) 7 SCC 592, NarendraGowda 2012(6) KAR L J 502(DB) ] |
Court need not mention that the cognizance is Suo-motu. The cognizance is taken on
the letter dated 23.03.2019 sent by Adv. MilindSathe of Bombay Bar
Association and Mr. KaiwanKalyaniwalla of Bombay Incorporated Law Society. If
Registry has mentioned the title as ‘suomotu’, it is sufficient. Cognizance is not illegal for not
mentioning the word Suo-Motu. Para 34 of the order dated 27.04.2020 states; “……The alleged contemnors are basically urging that the order does not
use the word “suomotu”. In our view, that would not make any difference…” |
Court has followed the proper procedure of
mentioning the specific word that the court is taking Suo-motu cognizance. Order reads thus; “We
take suomotu cognizance of the aforesaid tweet also apart from the tweet
quoted above and suomotu register the proceedings.”
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(5) If Court takes any information for initiating the suomotu cognizance of contempt, then the
cognizance should be only of scandalous pleadings of the alleged contemnors.
Court should have no concern with the irrelevant pleadings in the letter or
petition and for which there is no
permission of the Attorney General.
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There is no illegality ifthe Bench of Justice
RohintonNariman in his order dated 27.03.2019, while taking cognizance, took
the reference of few paras from the letter dated 23.03.2019 sent by Adv.
MilindSathe of Bombay Bar Association & Mr. KaiwanKalyaniwalla of Bombay
Incorporated Law Societyand ordered that the copy of letter be annexed to the
order of taking cognizance. (Additional comment as part of the analysis: The order of taking cognizance by Justice Nariman is
a mockery of Judicial process. The cognizance is neither Suo-motu nor by a private party under permission of the Attorney
General.Hence the proceedings are vitiated.) |
Proper procedure is followed by the Bench by
referring only to the scandalous material of alleged contemnor. Not a single
word from the petition of MahekMaheshwari is mentioned in the order dated
22.07.2020. The name of the informant is also not mentioned. The order reads
thus; “We
take suomotu cognizance of the aforesaid tweet also apart from the tweet
quoted above and suomoturegister the proceedings.”
|
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(6)The order issuing show cause notice should have
semblance of fair play. Only prime facie view and a simple show cause notice
stating as to why action should not be initiated under contempt needs to be
passed. This procedure is followed by the Constitution Benches
in Re: C.S. Karnan (2017) 7 SCC 1and others. InSubramaniam Swami’s case (2014) 12
SCC 344, the order reads thus; “In Re :ArunShourie and Anr. Issue notice ..stating
therein why contempt proceedings should not be initiated.” In In Re:Vinay Chandra (1995)
2 SCC 584, the order reads
thus; “ .. issued a notice against him to show cause
why contempt proceedings be not initiated against him ” In ArichitGoyalvs State Of Punjab(2005) 140
PLR 375, it is ruled that; “ .. the reproduction of the allegations and the tenor of the order clearly reveals that the Bench had already
found him guilty. Mr.S.P.Gupta, ..theprocedure that is adopted must have a
semblance of fair play... it is clear that the Division Bench had in
effect in its order dated 9.2.2005 held Mr, Munjal guilty of Contempt of
Court. In this view of the matter, we are further of the opinion that it would indeed be unfair to call upon
him to show cause to the charge at this stage.” |
In the order passed by the Justice RohintonNariman on
27.03.2019, the words used were:
“................We,
therefore, issue notice of contempt …to
explain as to why they should not be punished for criminal contempt of
the Supreme Court of India, …” (Additional comment as part of the analysis: It is
settled law that, the judgment
which first decides the guilt and then calls the say of the party is a
mockery of Judicial process. Such judgment should not be respected by any
Court in the world. In
common sense and common honesty, that the sentence of the tribunal which
first punishes and then hears the party, castigatque, auditque. Such
sentences 'as mere mockeries, and as in no just sense judicial proceedings;'
and are characterized they 'ought to be deemed, both ex directo in rem and
collaterally, to be mere arbitrary edicts or substantial frauds.' [Windsor 93 US 274 (1876) Nine Judge Bench of
Supreme Court.] |
Proper procedure is followed and a simple order of issuing
show cause notice is passed without disclosing any prejudices or personal
emotions. The order reads thus; “We are
prima facie of the view ….We issue notice to the Attorney General for India
and to Mr. PrashantBhushan, Advocate also”
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(7)The judge, who is involved directly or indirectly in
the subject matter of alleged contempt, is disqualified to even sign the
order issuing show cause notice of Contempt. 1) In the case of Amicus vsPrashantBhushan (2010)
7 SCC 592,Justice S.H. Kapadia did not sign the order issuing notice
because allegations were against him. 2) Constitution Bench in Re: C.S. Karana (2017) 7
SCC 1, ruled that if a Judge of
Constitutional Court does not know the
basic law that no Judge can pass any order in a case where he himself is a
party, then it will be a ground for enquiry for his impeachment for
incapacity and proved misbehavior. 3) Constitution Bench in Supreme Court Advocate on Record Association (2016) 5 SCC 808, ruled
that the Judge is automatically disqualified if he is a party named in the
said case or he is concerned with the cause in the case. [Sukhdev Singh Sodhi1954
SCR 454,Deepak Pralhadka (2004) 5 SCC 217,Davinder Pal Singh Bhullar
(2011) 14 SCC 770.] 4) At the stage of issuing notice, the provisions of
Article 129 and 215 have no application. The order issuing notice of contempt
by a disqualified Judge is without jurisdiction and liable to be set aside. [High Court Of Judicature At
Allahabad V. Raj Kishore Yadav (1997)
3 SCC 11,Smt. Maya Dixit vs State, 2010 SCC OnLine
All 1740, Prof.
Y.C. Simhadri, 2001 SCC OnLine All 572 |
The view taken was that: The judge against whom allegations are made can take
part in the procedure taking cognizance. Order issuing show cause notice does
not amount to acting in his own case. Article 129 is above all laws. (Additional comment as part of the analysis: Justice RohintonNarimanhas acted as Judge in his own cause since he
took cognizance of contempt in a case where he himself was the person being
complained of (the complaints sent by Adv. Vijay Kurle and Shri. Rashid Khan
Pathan were against Justice RohintonNariman and Justice Vineet Saran).
The subsequent recusal by Justice Nariman and Justice Saran is of no
consequence since the entire process was vitiated ab initio.
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The law is properly followed. The Chief Justice of
India, himself being party attacked in the tweet, did not sign the order and did
not participate in the proceeding, though, he was the person authorised as
per the law being the Chief Justice of Supreme Court (Bal Thackeray's Case
(2005) 1 SCC 254) |
The order passed by the Bench headed by Justice Arun
Mishra on 22.07.2020 has immensely helped regain the confidence in judiciary,
which had taken a severe beating due to orders passed by Justice
RohintonNariman,Justice Deepak Gupta and Justice Aniruddha Bose in the matter
of Re: Adv. Vijay Kurle and others.
Hail the justice.
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Comparative Table
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