Suo Motu cognizance of contempt of Supreme Court should be as per the guidelines set in P.N. Duda’s case and that procedure is followed
Suo Motu cognizance of contempt of Supreme Court should be as per the guidelines
set in P.N. Duda’s case and this procedure is followed by us.
- Three Judge Bench headed by Justice
Arun Mishra during the hearing in Adv. Prashant Bhushan’s case on 05.08.2020
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This stand of Larger Bench of Supreme Court has overruled the judgment
delivered by the smaller Bench headed by Justice Deepak Gupta on 27.04.2020 in Re:
Vijay Kurle and others, since said smaller Bench had taken a view that the guidelines
in P.N. Duda were not binding but an obiter!
Also the Larger Bench headed by Justice Mishra stated that since one of the
allegedly contemptuous tweets by Adv. Prashant Bhushan was directed at the Chief
Justice of India, the latter had recused himself from the process of taking
cognizance and the matter was placed before the second senior most Judge Shri N.V.Ramana.
This has proved that the bench headed by Justice Deepak Gupta has erred
in taking a view that the cognizance by Justice Rohinton Nariman in a complaint
related to himself and his father Adv. Fali Nariman was not illegal.
New Delhi :- (06.08.2020) : The Supreme Court has reserved
its order in the suo motu contempt case initiated against
Advocate Prashant Bhushan for allegedly bringing disrepute to
the institution through two of his tweets.
The Bench of Justices Arun
Mishra, BR Gavai, and Krishna Murari heard the matter at
length before reserving its order.
Adv. Dushyant Dave, who
appeared for Adv. Prashant Bhushan today, stated that the initiation of
contempt proceedings in disregard of the established procedure amounts to
violation of the right to personal liberty under Article 21 of the
Constitution. Before initiating proceedings, AG must give consent to the same.
In this case, the AG was asked to assist the court after Suo Motu Cognizance
was taken.
Dave further said, "Suo motu means that your lordships
should take it up on their own. Not that an Advocate (Advocate Mehek
Maheshwari) moves a plea and you take it up". "What's the point of
asking AG to be here when your lordships have recorded prima facie
findings?", he asked. Further, it was contended that the Secretary-General
committed illegality by placing the complaint directly before the bench headed
by Justice Arun Mishra, as the 'Master of the Roster' is the Chief Justice of
India.
Dave stated that the
complaint filed by one Advocate Mahek Maheshwari, which sought contempt action
against Bhushan, was defective as it was not accompanied with the sanction of
the Attorney General as mandated by Section 15 of the Contempt of Courts Act
1971 and Rule 3(c) of the Rules to Regulate Proceedings for Contempt of the
Supreme Court 1975. Without AG's permission, the petition could not have been
placed before the present bench on the administrative side. He further said, Your lordships must take suo motu cognizance
on your own, not whensomeone brings it to you like this.
Justice Arun Mishra replying
to the above said that, if the cognizance
was taken of the complaint, then it cannot be a suo moto but in this case the
Court has taken the cognizance of
contempt case suo moto and not on the basis of the complaint. Justice
Mishra added that the issue was already settled by the precedent P N Duda vs P Shiv Shanker, (1988)
3 SCC 167, holding that consent of the AG was not required for
the Court to set off contempt action suo
moto.
The second crucial part of
the hearing was on the issue regarding the requirement of placing the matter before Chief Justice of India as
per P. N. Duda’s guidelines. To which Justice Mishra replied
that, since Chief Justice of India himself is a party concerned to the tweet, therefore
he has recused himself and the decision for taking cognizance on administrative
side was taken by the second seniormost Judge i.e. Justice Ramanna.
It can be seen from the
record that in Re: Vijay Kurle, the
smaller Bench of Justice Rohinton
Nariman had acted against the binding guidelines and by taking cognizance of complaint, without the consent
of Attorney General and against guidelines given in P. N. Duda’s case. When the said illegality was objected ,
the smaller Bench of Justice Gupta has taken a wrong view that the precedent
of P. N. Duda’s case are not binding.
The
order dated 02.09.2019, ( 2019 SCC ONLINE SC )reads as under;
“4. ..
This contempt was registered basically
on the joint complaint filed by the President
of the Bombay Bar Association and the President
of the Bombay Incorporated Law Society. In this complaint reference
has been made to a communication (sent by respondents no. 1 and 2) and the
allegation against respondents no. 3 and 4 is that they have acted in tandem with respondents no. 1 and 2. …”
The
order dated 09.12.2019, ( 2019 SCC ONLINE SC )reads as under;
“ 1. Repeated discharge applications have been filed by the
alleged contemnors raising many grounds. At this stage we are not deciding the
said applications, but we may make it clear that the order of this court
dated 27.3.2019 not only makes reference to the communication sent by the
President of the Bombay Bar Association and the President of the Bombay
Incorporated Law Society, but specific reference has also been made to two
communications-Annexure 1 and Annexure 2; the first being a letter sent by the
Indian Bar Association, and the second sent by the Human Rights Security
Council. …….
2. We clarify our order dated 2.9.2019,
that though contempt may have been
initiated on the complaint of the President of the Bombay Bar Association and
the President of the Bombay Incorporated Law Society, it relates to
scandalous allegations made against 2 Judges of this Court as reflected in
order dated 27.3.2019. ”
The
order dated 27.04.2020, ( 2020 SCC ONLINE SC )reads as under;
“ 16. Relying
upon the aforesaid observations in the judgment delivered by Justice
Ranganathan (P N Duda vs
P Shiv Shanker, (1988)
3 SCC 167) it is submitted that the petition could not have been placed for
admission on the judicial side but should have been placed before the Chief
Justice and not before any other Bench. We are not at all in agreement with the
submission. What Justice Ranganathan
observed is an obiter and not the finding of the Bench and this is not the
procedure prescribed under the Rules of this Court. ”
38.
Strong reliance is placed by the alleged contemnors on the judgment of Justice
Ranganathan in P.N. Duda's case (supra)
that the practice being followed by the Delhi High Court should be followed in
this Court also. We are unable to accept this contention and find no merit in
the same. As already observed above, those observations were in the nature
of obiter and the
said observations cannot override the statutory rules. ”
Hence it is clear that the the view
taken by the two Judge Bench headed by Justice Deepak Gupta is a wrong view and
stand impliedly overruled. The conviction and sentence of Vijay Kurle and
others is vitiated.
Full Bench of the Supreme Court had set
aside the conviction of Bal Thackrey
in (2005) 1SCC 254. It is ruled that;
“
23. In these
matters, the question is not about compliance or non- compliance of the
principles of natural justice by granting adequate opportunity to the appellant
but is about compliance of the mandatory requirements of Section 15 of the Act.
.. In
absence of compliance of mandatory requirement of Section 15, the petitions
were not maintainable.
24.
For the foregoing
reasons we set aside the impugned judgment and allow the appeals. Fine, if
deposited by the appellant shall be refunded to him. ”
Said wrong view taken by the
two Judge Bench in Re: Vijay Kurle’s case is now impliedly overruled.
The procedure adopted by the three Judge Bench in Re: Prashant Bhushan, is also sufficient to hold for the implied overruling of the view taken by the two Judge Bench where it was said that the Judge against whom the allegations are made, can take the cognizance of contempt and it does not amount to Judge in his own case. Justice Rohinton Nariman took the cognizance of a complaint in which he himself and his father Adv. Fali Nariman are party.
In Re: C.S. Karnan (2017) 7 SCC 1, it is ruled as under;
“55....................................... Unfortunately the contemnor (Justice C. S. Karnan) appears to be oblivious of one of the fundamental principles of law that a complainant/informant cannot be a judge in his own complaint.The contemnor on more than one occasion "passed orders purporting to be in exercise of his judicial functions" commanding various authorities of the states to take legal action against various judges of the Madras High Court on the basis of the allegations made by him from time to time.
56. Whether all the
above-mentioned conduct amounts to either "proved misbehavior" or
"incapacity" within the meaning of Article 124(4) read with Article 217(1)(b) of the Constitution of India warranting the impeachment of the contemnor is a
matter which requires a very critical examination. If the contemnor is unable
to prove the various allegations made against judges of the Madras High Court, what legal consequences would follow from such failure also requires an examination.
Probably, the contemnor would be amenable for action in accordance with law for
defamation, both civil and criminal apart from any other legal consequences.”
The other crucial arguments
of Adv. Dushyant Dave were heard at length and the case is reserved for order.
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