[Ruchita Taneja contempt case] Supreme Court violated her fundamental rights.

 [Ruchita Taneja & Kunal Kamra contempt case] Supreme Court violated her  fundamental rights.

The order directing issue of contempt notice against her is a mechanical order without any application of judicial mind and therefore vitiated being abuse of process of court as has been ruled by the Supreme Court in Birla Corporation Vs Adventz Investments 2019 SCC OnLine SC.

Supreme Court is bound to provide an Intra Court Appeal to Ruchita Taneja and Kunal Karma to challenge said wrong order and get it set aside.

But neither supreme Court providing Appeal at its own nor deciding the Writ petition filed by Adv. Prashant Bhushan in this regard and going on commiting violation of fundamental rights of citizen.

Download the list of offences of violation of fundamental rights committed by the Supreme Court judges by misusing  its power of Contempt which shows that the sufferers are from all sections of society such as  Lawyers, Women, Senior citizen, Human Rights Activists, Police commissioners and other officers, CBI chief, Bureaucrats, Judges of all courts including High Court and Supreme Court, Social Media Activists, people belonging to weaker sections of Minorities, Scheduled Castes, Scheduled Tribes, other Backwards,  Cabinet Ministers, Political party heads including Rahul Gandhi etc.

NEW DELHI: 

1.1.  Our Country is governed by the rule of law and even before sentencing the Pakistani Terrorist Ajmal Kasab, we have completed all the formalities of law including the procedure of providing a Lawyer at State’s cost [Ajmal Kasab (2012) 9 SCC 1, Mohd. Hussain Vs. State (2012) 2 SCC 584].

1.2. Few Judges of the Supreme Court are just giving lip service to the citizen of this country and preaching to all subordinate judges and public servants for protection of fundamental rights of the citizen and even taking action against others for violating constitutionally guaranteed rights. But when the  case is of   exposing corruption and corrupt practices of the Supreme Court judges then all laws and constitutional provisions are put in cold storage and the same Judges are blatantly violating the constitutionally guaranteed rights of the Citizen. This was recently proved from the contempt proceedings in Re: Vijay Kurle’s case and Prashant Bhushan’s case.

 1.3. Justice Krishna Iyer’s are perfect for such Judges that; “You cannot be law unto yourself expecting others to obey the law”

 1.4. The present article is regarding the similar issue of violation of fundamental rights of the citizen by the Judges of the Supreme Court.

Supreme Court on 18.12.2020  passed an order directing issue of contempt notice against two persons in two different contempt petitions.

One notice is issued against Ruchita taneja and other is issued against Kunal Karma.

1.5. Before I point out the illegalities of the above blatently illegal orders, I would like to make it clear  that I am not going to endorse the conduct of them and specially the conduct of Mr. Kunal Karma in his vulgarity. My concern is only regarding the attempt of some Supreme Court Judges in subversion of rule of law by the Judge made law, which is the greatest threat to Rule of Law.

1.6. The two orders dated 18.12.2020 reads thus;

1) RUCHITA TANEJA CONTEMPT ORDER

The petitioner,   a   student   of   law,   has   filed   this petition for initiating proceedings   for   contempt   for publishing contemptuous posts on social media which allegedly scandalize and undermine the authority of this Court.  The   petitioner   has   filed   this   contempt petition after obtaining consent of learned Attorney General for India. Learned Attorney   General   for   India   while   giving his consent  by letter dated December 1, 2020 recording his satisfaction states”

I   am   satisfied   that  each   one   of  the  tweets   with the cartoons attached to  them   is   in   contempt   of the Supreme  Court   of   India,  and  hence  I  give   my consent to initiate proceedings under the Contempt of Courts Act, 1971 in regard to each one of the  tweets.”

Issue   notice   returnable   within   six   weeks.   The contemnor ­respondent not to appear in person.

 

2)  KUNAL KAMRA CONTEMPT ORDER

These petitions have filed, first by an Advocate of this Court and other two by Law Students for initiating criminal contempt proceedings against the respondent for scandalising this Court and lowering the authority of this Court by publishing tweets on twitter handle of the alleged contemnor. The contempt petitions have been filed   after obtaining consent of learned Attorney General for India.

Learned Attorney General for India vide his letter dated November 12, 2020 granted consent on the request of the applicant   to   proceed   by   way   of   initiating   contempt proceedings against Shri Kunal Kamra­ respondent. Learned Attorney General in his consent letter dated November 12, 2020 states:

 "I   am   in   receipt   of  your   request   for   consent   to initiate proceedings by way  of   criminal   contempt against Sh. Kunal Kamra. I have gone through each one   of   the   tweets   which   you   have   annexed   for consent to proceed by way of extracting below arenot only in bad taste but clearly cross the line between humour and contempt of the Court.

I   find   that   today   people   believe   that   they   can boldly and brazenly condemn the Supreme Court of India its judges by exercising what they believe is their freedom   of   speech. But   under   the Constitution, the freedom of speech is subject to the law of contempt and I believe that it is time that people understand that attacking the Supreme Court   of   India unjustifiedly   and   brazenly   will 2 attract   punishment   under   the   Contempt   of   Courts Act, 1972.

I   therefore   grant   consent   to   proceed   by   way   of initiating contempt proceedings against Sh. Kunal Kamra.”

 

Issue   notice   returnable   within   six   weeks. The respondent contemnor not to appear in person.


2. ILLEGALITY OF THE ORDER PASSED BY THE SUPREME COURT

2.1. That the order paased by the Supreme Court  only reproduces the facts and lastly says issue notice.

Issue   notice   returnable   within   six   weeks.   The contemnor ­respondent not to appear in person.

2.2.  That in contempt the order “Issue notice” amounts to taking cognizance. Only when the court mentions that it is pre cognizance notice then only it is not a cognizance.[ Pallav Sheth (2001) 7 SCC 549, Rajesh Singh (2007) 14 SCC 126,  ………..]

 

2.3. That, in the order taking cognizance the court is bound to mention the reasons as to why court is of the opinion that the cognizance is required and also the Court has to frame the specific charge as per sec 15(3) of the Contempt of Courts Act,1971. [J.R. Parashar Vs. Prashant Bhushan (2001) 6 SCC 735, The editor Blitz 1979 ILR 25 (Bom) (DB), Archit Goyal vs State 2005 SCC OnLine P&H 174 ]

2.4. In Archit Goyal vs State 2005 SCC OnLine P&H 174, it is ruled as under;

 

“15.  A number of other submissions were made orally followed by in writing and decisions were cited at the Bar by the learned counsel, but we do not consider appropriate to deal with many of them without first framing the charge under Section 15(3) of the Act as its framing is mandatory.

 22. We proceed to formulate and specify the charge under Section 15(3) of the Act against Shri Munjal as follows :—

“Whether in stating in our note dated 2.11.2004 “as per the oral directions of the Hon'ble Bench, the petitioner Anil Midha is not to be arrested till the next date of hearing” prepared in the capacity of Additional Advocate General of Punjab in the Police file in relation to Crl. Misc. No 48428-M of 2004, who, as admitted by you before the High Court is brother of the wife of your own maternal brother and in intimating that fact to the Police you have scandalised and attempted to interfere in the administration of justice of the Court (M.M. Kumar, J.) as envisaged under Section 2(c)(i) & (iii) of the Contempt of Courts Act, 1971 and have thereby committed Criminal Contempt as defined under Section 2(c) of the Act and suitably punished under Section 12(1) of the said Act?”

 23. Let the office register this case as Criminal Contempt Case and issue notice to Shri Munjal in terms of the Rules incorporating the charge aforementioned and hand over to him to have his show cause fixing Friday dated 11.2.2005 as the next date.”

 

But no such procedure was followed while issuing contempt notice to Ruchita Taneja and Kunal Kamra.

 2.5. The order does not mention the reason for summoning the respondent by application of judicial mind and does not mention the provisions under which they are summoned. It  vitiates the summoning order as per law laid down in Birla Corporation Ltd. vs Adventz Investments 2019 SCC OnLine SC 682,  where it is ruled as under;

“ The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. ..In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence .., the accused is answerable before the criminal court, there is ground for proceeding against the accused .., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case …the High Court under Section 482 Cr.PC. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one’s dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment.”

 2.6. Here, though the summoning order under contempt is gross abuse of process of court and actually it has to be set aside by the appellate court. But since no Appellate Tribunal is provided therefore the Alleged Contemnors has to answer the Charge and accept the illegal proceeding to continue even if it is unconstitutional.


3. LAW ON MANDATORY REQUIREMENT OF ONE APPELLATE JURISDICTION AGAINST SUPREME COURT JUDGEMNT IN ORIGIONAL JURISDICTION

3.1.  In Tamilnad Mercantile Bank Vs S.C. Sekar (2009) 2 SSC 784, it is ruled that, in proceedings under the contempt the appeal is fundamental and human right. Technically, if there is no provision of appeal then the aggrieved person cannot be left without remedy. Access to justice is a human right and in certain situations it is a fundamental right.

3.2.   General Comment No. 32, Article 14, Right to Equality before Courts and Tribunals and to Fair Trial by UN Human Rights Committee (HRC) dated 23 August 2007, states:

“47…. Where the highest court of a country acts as first and only instance, the absence of any right to review by a higher tribunal is not offset by the fact of being tried by the supreme tribunal of the State party concerned; rather, such a system is incompatible with the Covenant, unless the State party concerned has made a reservation to this effect.” Significantly, India has not made such a reservation while ratifying ICCPR. Given that India has ratified ICCPR subsequent to enactment of Contempt of Courts Act, 1971, and subsequent to enactment of Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975, by virtue of Article 253 of Constitution of India and in line with the judgments of this Hon’ble Court, it is submitted that an appeal from a judgment of this court in an original criminal contempt case is a right.’

3.3.  Supreme Court of India, has held in several judgments including Gramophone Company of India and Vishaka that international conventions ratified by India would be read as part of domestic law if there is no domestic law which is in conflict with such international law. Therefore, the right to appeal against an original conviction by the Supreme Court must be read into law in India and the Supreme Courts Rules in this regard must be brought in line with that. The same is legally binding.

3.4. In 1976 India ratified the International Covenant on Civil and Political Rights (ICCPR). Article 14(5) thereof, states, "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

3.5. The United Nations Human Rights Committee interpreted Article 14(5) of ICCPR in Terron v. Spain, Comm. 1073/2002, U.N. Doc. A/60/40, Vol. II, at 111 (HRC 2004) and held that the right to appeal against a criminal conviction is absolute – even if the verdict was initially determined in the highest national court.

3.6.  In M.H. Hoskot v. State of Maharashtra (1978) 3 SCC 544, a three judge bench of  Supreme Court of India, held that at least a  single  right  to  appeal  is  integral  to fair legal procedure, even if the conviction is by the Highest Court. It is  natural justice and normative universality and manifests itself in Article 21 of the Constitution.

3.7. The Judgment in Madhav Hoskot (1978) 3 SCC 544 is approved by the Constitution Bench in Anita Kushwaha’s (2016) 8 SCC 509 case.

3.8. In Hens Serena and Corujo Rodriguez v. Spain, Comm. 2008 SCC OnLine HRC 20, the United Nations Human Rights Committee further held that even if the verdict had to be initially determined in the highest national court means Supreme Court owing to national law specifically requiring to be so, and even if the aggrieved persons availed the right of a constitutional review, still Article 14(5) of ICCPR would be violated if there is no ‘appeal’. i.e. a constitutional review does not obviate the right to an ‘appeal’ under Article 14(5).

It is ruled as under;

" article 14, paragraph 5, of the Covenant states that a person convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law."

 9.3. The Committee points out that the expression “according to law” is  not  intended to mean that the very existence of a right to review, which is recognized in   the Covenant, is left to the discretion of States parties. The State party's legislation   may well provide that certain individuals, by virtue of their position, should be tried in  a higher court than would normally be the case, but that cannot in itself detract from  the accused's right to have their conviction and sentence reviewed by a higher court. The Committee further notes that the remedy of amparo may not be considered an appropriate remedy within the meaning of article 14, paragraph 5, of the Covenant.

 

The Committee therefore finds a violation of article 14, paragraph 5, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it disclose a violation of article 14, paragraph 5, of the Covenant. 
11. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is required to furnish the authors with appropriate redress, including compensation, and   to take the necessary measures to ensure that similar violations do not occur in the future. 
12. In becoming a party to the Optional Protocol, Spain recognized the competence of the Committee to determine whether or not there has been a violation of the Covenant. Pursuant to article 2 of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant and to provide an effective and enforceable remedy in the event that a violation has been established. The Committee wishes to receive from the State party, within 180 days, information about the measures taken to give effect to   the Committee's Views. The State party is requested to publish the Committee's Views.’’

3.9. The above view in Tamilnad Mercantile Bank Vs S.C. Sekar (2009) 2 SSC,  784 case is approved by the Constitution Bench in Anita Kushwaha’s case (2016) 8 SCC 509. It is ruled as under;

11. The Universal Declaration of Rights drafted in the year 1948 gave recognition to two rights pertaining to “access to justice” in the following words:

8.Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law.

10.Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.” 

3.10. Constitution Bench in Anita Kushwaha Vs. Pushap Sudan, AIR 2016 SC 3506, ruled THAT   Denial of the right undermines public confidence in the justice delivery system and incentivises people to look for shot cuts and other fora where they feel that injustice will be done quicker. In the long run, this also weakens the justice delivery system and poses a threat to the rule of law.

 

4. ATTEMPT OF SOME JUDGES TO SUBVERT THE RULE OF LAW AND CONSTITUTION OF INDIA WITH THEIR WHIMSICAL LAW

4.1.  In two recent judgments in Re: Vijay Kurle 2020 SCC OnLine SC 680 & Re: Prashant Bhushan 2020 SCC OnLine SC 646, the said Benches of the Hon’ble Supreme Court took the view that, they have unlimited and unbridled power to pass any order, sentence, or adopt any procedure and that the provisions of law such as The Contempt of Courts Act, 1971 enacted by the legislature do not have any binding upon them.

 4.2.  The aforementioned view taken by the said Benches is based on the overruled judgment of two Judge Bench in Pritam Pal’s case. The said ratio is already overruled by the Full Bench of the Hon’ble Supreme Court in Bal Thackrey’s case (2005) 1 SCC 254. 

 4.3. Hence the view taken in Re: Vijay Kurle and in Re: Prashant Bhushan is per-incuriam (anticipatorily overruled) as it is against the binding precedents as laid down in cases of Pallav Sheth (2001) 7 SCC 549; Re: P. C. Sen (1969) 2 SCR 649; Baradakanta Mishra (1974) 1 SCC 374; Bal Thackrey’s case (2005) 1 SCC 254, etc.

4.4. A detailed Article published by Sr. Counsel Shri Asim Pandya in ‘Live Law’ portal on 16th September, 2020, the link to which is “Arrogation Of Unlimited Contempt Power By The Supreme Court- A Hornets' Nest Stirred Up Again. A LINK OF SAID ARTICLE IS: https://www.livelaw.in/columns/arrogation-of-unlimited-contempt-power-by-the-supreme-court-a-hornets-nest-stirred-up-again-163022

4.5.  That, as can be seen from the aforementioned judgments, it is very clear that some Supreme Court Judges consider themselves as superior to law and pass judgements by violating rules and laws and also willfully ignoring the binding precedents of the Supreme Court and also violating basic and human rights of the citizens thereby disrespecting the Constitution of India.

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