Supreme Court is not included in the judiciary of the country.

Scandalous allegations against individual Judges of the Supreme Court regarding their imprudence in passing a  judgment  is not a contempt.

 Supreme Court is not included in the judiciary of the country. 

Said Attorney General for India.

Declined consent for Contempt Petition against Uddhav Thackrey, Sanjay Raut, Smt. Rashmi Thackrey & Vivek Kadam for publishing derogatory article in the Samna.

New Delhi :- In Daily Samna, the mouthpiece of Shiv-Sena an editorial article was published on 8.02.2021 where very objectionable statement was made as under;

“There is no doubt in anyone's mind that the judiciary of the country is under the heel [shoes] of the ruling party.”

The social activist filed a petition before Attorney General for India for granting consent to him to initiate contempt proceedings against Uddhav Thackrey, Sanjay Raut, Smt. Rashmi Thackrey & Vivek Kadam.

 In reply to the said request the Attorney General in his letter dated 23.03.2021, stated that, since the allegations are against entire judiciary in the Country and the Supreme Court is not mentioned in the news article therefore he is not having jurisdiction to grant consent.

 Regarding the allegations against the individual Judges of the Supreme Court in the same article it was replied that making allegations against Supreme Court Judges does not amount to Contempt and therefore he declined the consent for Criminal Contempt.

The letter reads thus;

“I am in receipt of your letter seeking consent for initiating proceedings for criminal contempt against Mr. Sanjay Raut, Smt. Rashmi Uddhav Thackeray, Sh. Vivek Kadam and Sh. Uddhav Thackeray under Section 15 of the Contempt of Courts Act, 1971.

I have carefully gone through the translation provided by you of the statements published in the magazine ‘Samna’. The highly objectionable statement which I find in the translation is to the effect that, “There is no doubt in anyone's mind that the judiciary of the country is under the heel [shoes] of the ruling party.” But, it will be noted that this statement does not seek to allege that the Supreme Court by itself falls within this category and in the absence of a specific reference to the Supreme Court of India as an institution, as Attorney General I would not have the jurisdiction to grant consent under Section 15 of the Contempt of Courts Act.

Additionally, while it is certainly true that some strong statements have been made against particular judges of the Supreme Court citing certain instances, statements made about individual judges unless they impinge directly upon the institution do not constitute contempt. (1952 SCR 425, 1953 SCR 69, (1998) 4 SCC 409) The remainder of the translation pertains to allegations that the executive of the country is exerting pressure on the judiciary, which is more a criticism of the government than the court. I am therefore of the opinion that the said statements do not warrant the initiation of proceedings for criminal contempt of the Supreme Court of India.

Accordingly, I decline consent under Section 15 of the Contempt of Courts Act, 1971, read with Rule 3(c) of the Rules to Regulate Proceedings for contempt of the Supreme Court of India, 1975.”

In his letter declining consent the Attorney General for India had taken a refrence of following three judgments of Constitution Bench of the Supreme Court.

i)Bathina R. Reddy Vs. State 1952 SCR 425.

ii)Bramha Prakash Sharma Vs. State 1953 SCR 1169.

iii) Supreme Court Bar Association Vs. UOI(1998) 4 SCC 409.

The legal position laid down in Bathina R. Reddy’s case is as under;

“12. News published against a Judge......If the allegations were true obviously it would be to the benefit of the public to bring these matters in to light......” 

Similar law is laid down by the Constitution Bench in Subramanian Swami’s case (2014) 12 SCC 344,where it is ruled as under;

“12. In Wills [Nationwide News (Pty) Ltd. v. Wills, (1992) 177 CLR 1 (Aust)] the High Court of Australia suggested that truth could be a defence if the comment was also for the public benefit. It said, “… The revelation of truth—at all events when its revelation is for the public benefit—and the making of a fair criticism based on fact do not amount to a contempt of court though the truth revealed or the criticism made is such as to deprive the court or Judge of public confidence…”

The Constitution Bench had approved the ratio laid down in the case of Indirect Tax Practitioner Association Vs. R. K. Jain (2010) 8 SCC 281, where it is ruled that ‘As per Article 51(A)(h) it is duty of every citizen to expose the malpractices/corruption in the judiciary.

The person exposing malpractices should be called as ‘Whistleblower’ any attempt to silence their voice by filing contempt petitions should be discouraged by imposing cost.

In Bramha Prakash Sharma’s case 1953 SCR 1169, the Constitution Bench judgment had ruled that whenever any Judge misuses his power and conduct the proceeding arbitrarily or in any unlawful manner then the Bar Association should make his complaint to the administrative head.

          If the publication of said complaint is called as contempt then at the most it will be a technical contempt. In technical contempt no punishment can be imposed in technical contempt cases at the most on the reply affidavit of explanation or after getting explanation the case should be dropped.

Constitution Bench in Baradakanta Mishra’s case  (1974) 1 SCC 374,had ruled that making comments on incompetence and impurdence of Chief Justice is not a contempt. (Para 71)

Making complaint against Judge is fundamental right and cannot be subjected under contempt proceedings.(Para 86) 

 

 

 

The copy of the petition dated can be downloaded.

The copy of the letter by Attorney General dated 23.03.2021 can be downloaded  ___.
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