Supreme Court:
In the suo motu contempt proceedings initiated against advocates Vijay Kurle, Rashid Khan Pathan, Nilesh Ojha and Mathews Nedumpara for scandalous allegations against Justice RF Nariman and Justice Vineet Saran, the bench of Deepak Gupta and Aniruddha Bose, JJ has held Vijay Kurle, Rashid Khan Pathan and Nilesh Ojha guilty of contempt and has listed the matter 01.05.2020 for hearing the issue of sentence, through video conferencing.
Background of the Contempt proceedings
The basis of the contempt proceedings was two letters dated 20.03.2019 and 19.03.2019 received by Chief Justice of India Ranjan Gogoi and other judges of the Court, admittedly signed by Vijay Kurle (State President ofMaharashtra and Goa of the Indian Bar Association) and Rashid Khan Pathan (National Secretary of the Human Right Security Council) respectively. The Court had already discharged Mathews Nedumpara last year in September, after he denied any role in sending those complaints.
It is pertinent to note that the bench of RF Nariman and Vineet Saran, JJ had barred Nedumpara from practicing as an advocate in the Supreme Court for one year, after he had argued before the Court during a proceeding :
“Judges of the Court are wholly unfit to designate persons as Senior Advocates, as they only designate Judges’ relatives as Senior Advocates.”
He was referring to the judgment where with the intent to make the exercise of senior designation more objective, fair and transparent so as to give full effect to consideration of merit and ability, standing at the bar and specialized knowledge or exposure in any field of law, the 3-judge bench of Ranjan Gogoi, RF Nariman and Navin Sinha, JJ laid down elaborate guidelines for the system of designation of Senior Advocates in the Supreme Court as well as all the High Courts of India.
He also took the name of Senior Advocate Fali S. Nariman. When cautioned by the Court, he took his name again. Thereafter, on being questioned by the Court as to what the relevance of taking the name of Fali S. Nariman was, he promptly denied having done so.
Issues raised by the contemnors in 2 very lengthy letters running into more than 250 pages combined:
- That the Bench of Justice R. F. Nariman and Justice Vineet Saran could not have taken cognizance of the case because the case was not assigned to them by the Chief Justice and that both the Judges acted as Judge in their own cause.
- That the Bench has not suo motu taken notice of the contempt and therefore the Registry cannot treat it as a suo motu petition.
- That even in suo motu contempt proceedings the consent of the Attorney General is necessary.
- That the proper procedure of framing a charge is not followed because the defects at the initial stage cannot be cured by later orders/developments.
- That the Judges were bound to disclose the source of information.
Some of the excerpts from the letters as highlighted by the Court in the judgment:
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“The only irresistible conclusion that can be drawn is that there were no malafides on the part of Advocate Nedumpara and if it were put in notice calling explanation in open Court then would have exposed Justice Nariman in front of advocates and public and that’s why a very strange and different method is adopted by Justice Nariman by pronouncing conviction of advocate.”
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“misused his power to use material outside the court record and received by personal knowledge without disclosing its source”
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“The malafides of Justice Rohington Fali Nariman are writ large as can be seen from the fact that the materials relied by him in para 3,4,5,6,7,8 are totally the personal work of Justice Rohington Nariman and as can be easily inferred. It is clear that the most of the material supplied is from Justice S.J. Kathawala of Bombay High Court who in turn is Rohington’s close and rival of Adv. Nedumpara.”
Ruling on contempt
On proxy battle being fought for Advocate Nedumpara
Holding both the complaints as exfacie contemptuous wherein highly scurrilous and scandalous allegations have been levelled against the two judges of this Court, the Court said that though the alleged contemnors claim that they are not expressing any solidarity with Mathews Nedumpara nor do they have anything personal against Justice R.F. Nariman, the entire reading of the complaints shows a totally different picture.
“When we read both the complaints together it is obvious that the alleged contemnors are fighting a proxy battle for Shri Nedumpara. They are raking up certain issues which could have been raised only by Shri Nedumpara and not by the alleged contemnors.”
The Court noticed that even if the contemnors wanted to criticise the judgment on the ground of misuse of power, they could have used temperate language.
On the allegations that the material relied upon by Justice Nariman was supplied by Justice Kathawala
The Court noticed that the contemnor failed to prove the same and in fact, a perusal of the material shows that the materials relied upon were a matter of public record and were part of orders passed in cases that Shri Nedumpara appeared in or part of petitions filed by Shri Nedumpara himself. There is not an iota of evidence on record to show that Justice Kathawala is close to Justice Nariman. The contemnor also failed to prove that Justice Kathawala is a rival of Shri Nedumpara.
“Justice Nariman in his judgment has relied upon the orders passed by the Bombay High Court in various cases. These are all public documents and we fail to understand how the alleged contemnors assumed that these documents were supplied by Justice Kathawala.”
On right to criticise the judgment of Supreme Court
The Court said that
“no doubt, any citizen can comment or criticise the judgment of this Court. However, that citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity, and impartiality of a Judge of the highest court of the land.”
The Court, however, failed to understand how a person who has mere 7 years of experience at bar with unknown professional credentials, someone who has failed to check the spelling of the name of the judge he claims to have no knowledge of law, can adorn the robes of a Judge to pass judgment on the Judges of the highest court.
On defence of truth
Truth as a defence is available to any person charged with contempt of Court. However, ongoing through all the written arguments and the pleadings, other than saying that the Judges had misinterpreted the judgments of this Court or had ignored them or that Justice R.F. Nariman was biased, there is no material placed on record to support this defence.
“The allegations are also scurrilous and scandalous and such allegations cannot be permitted to be made against the Judges of highest Court of the country.”
[In re: Vijay Kurle, 2020 SCC OnLine SC 407 , decided on 27.04.2020]