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The Constitution of a country is the supreme law. A written Constitution with a Bill of Rights seeks to place certain human rights and fundamental freedoms beyond the reach of ordinary laws. When human rights are incorporated into the municipal law and guaranteed by a written constitution, they are called fundamental rights and are justiciable and enforceable. As the Supreme Court significantly observed in Minerva Mills Ltd. v. Union of India1:

 

All States, whether democratic or authoritarian, purported to govern for the welfare of the people. What distinguishes a democratic State from a totalitarian one is that a free democratic State respects certain basic human rights or fundamental rights and endeavours to achieve its objectives through the discipline of fundamental freedoms.

 

We begin with the concept of “State” in Article 12. The constitutional mandate in many of the provisions in the chapter on fundamental rights is to the State not to violate fundamental rights. The State is prohibited from making laws inconsistent with Part III. Fundamental rights are enforceable against the State whose import has been expanded over a period of time.

 

The protection and enforcement of fundamental rights and freedoms is both the power and duty of the courts and the grant of appropriate remedy is not discretionary but obligatory. Even in England with no Bill of Rights it was said over a century ago:

To remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand. (Scott v. Scott2)

 

The judiciary, particularly the Supreme Court, is constituted the guardian of fundamental rights. Consistent with that function and responsibility the Court cannot refuse to entertain cases seeking protection against infringement of fundamental rights. A petition under Article 32 has to be entertained if the existence of a fundamental right and its breach, actual or threatened, is alleged and prima facie established. The position of the High Courts under Article 226 in this regard is no different.

 

Every action of the State, legislative, executive or judicial, if it violates fundamental rights is void. It is well settled that a writ lies against the judiciary in the exercise of its non-judicial functions, administrative or executive like appointments of officials as also legislative like rule making. But it has been held that the judiciary is not included in “State” in Article 12 insofar as it relates to exercise of judicial power and no writ would lie against it. The raison d’être for this is that a judicial decision in an adjudication by a court of competent jurisdiction cannot affect fundamental rights and no writ of certiorari can be issued against a court. The proposition that judicial orders cannot at all violate fundamental rights appears to suffer from some fundamental flaws.

 

Can judicial orders made by a court which is the guardian of our rights and liberties result in breach of fundamental rights and, if so, with what result and remedy? Who watches the watchmen? Can the judiciary in the discharge of judicial functions violate fundamental rights and be amenable to the writ jurisdiction is an issue of seminal importance touching upon the rule of law and our constitutional scheme.

 

In this context it has been held that (i) the judiciary in the discharge of its judicial functions cannot infringe fundamental rights, and (ii) no writ would lie against the judiciary.

 

The majority in Mirajkar3 held that it is singularly inappropriate to assume that judicial decisions can affect fundamental rights; at best it could only be a mistaken or wrong exercise of jurisdiction which can be corrected in appeal or revision but it is not open to be corrected by exercise of writ jurisdiction. On the facts it was held that there was no violation of the fundamental right under Article 19(1)(a), as contended. Assuming that a fundamental right had been violated, it was considered and held that a writ of certiorari was not available against the High Court.

 

Antulay4 is perhaps the only decision where the Court held by a majority that an order of the court, be it administrative or judicial, against the provisions of the Constitution or violative of principles of natural justice can always be remedied ex debito justitiae. Of course this was an appeal by special leave and not a writ petition.

 

There was a powerful dissent by Venkatachaliah, J. where the learned Judge held that the impugned withdrawal of the case from the Special Judge to the High Court had been challenged earlier and upheld by the Supreme Court and it could not again be sought to be undone by a side wind, as it were. There was thus a finding against any such violation; the principle of finality of judgments/orders would apply.

 

In Hurra case5 it was laid down that a judgment may be assailed as a nullity on grounds like violation of natural justice, where the applicant was not a party to the lis or was not notified of the proceedings or where there was reasonable apprehension of bias of the Judge. But even in Hurra5 which innovated the concept of a curative petition and held that a judgment may be impugned as noted above, it was emphatically reiterated that a judicial decision cannot be violative of fundamental rights and no writ would be maintainable against the judiciary on that ground. Further a curative petition is a proceeding after one has exhausted all remedies-appeal, review, et al.

 

It is only in Mirajkar3 that the question directly arose whether a judicial order may breach fundamental rights, and if it did, whether as a remedy therefor a writ could issue to a superior court. The majority answered both in the negative-the judiciary cannot in discharging judicial functions infringe fundamental rights and no writ of certiorari will issue to a superior court to remedy the violation, if any. The dissent of Hidayatullah, J. took the opposite view on both counts.

 

There are two aspects of the issue : one, whether a judicial decision can violate fundamental rights and the other, the remedy therefor if it did-whether a writ would lie.

 

It is significant that Mathew, J. hit the nail on the head when he observed in Kesavananda Bharati6 that Hidayatullah, J. in his dissenting judgment in Mirajkar3 rightly took the view that the judiciary is also “State” within the definition of that word in Article 12. He went on to say that convicting and punishing a person twice for an offence by a judgment is equivalent to the “State passing a law in contravention to the rights conferred by Part III” for the purpose of enabling the person to file a petition under Article 32 to quash the judgment.7

 

It is submitted that in all cases, particularly Mirajkar3, the Court’s enquiry started from the wrong end i.e. whether a writ of certiorari would lie to a superior court. The Court conceptualised and defined the wrong having regard to and conditioned by the remedy available to right the wrong. This question of the remedy if there is a wrong is indeed the secondary question; the primary question is whether a judicial order can infringe a fundamental right. The Court seems to have forgotten the maxim that every right has a remedy.

 

Any State action, legislative, administrative or judicial, which violates “due process”, either directly or indirectly, is void. [Basu’s Commentary on the Constitution of India, (7th Edn.) Vol. C, p. 29 – with reference to the position in the USA.] There are many instances. The American Constitution XIV Amendment is similar to our Article 14.

  1. … it has never been suggested that State court action is immunized from the operation of those provisions [XIV Amendment’s prohibitory provisions] simply because the act is that of the judicial branch of the State Government. [Shelley v. Kraemer8]

 

It may be difficult to establish violation of Article 14 or any other provision of Part III by a Judge acting judicially, but if proved it has to be condemned and remedied. Transfer of cases-civil and criminal-which the law permits, withdrawal of cases before a smaller Bench to a larger Bench may be impugned as being arbitrary or violating Article 14 by denying the petitioner a right of appeal available to all other litigants. That would be carrying matters to absurd lengths and making a mockery of the system of administration of justice. Otherwise a litigant could always complain that a Judge heard a particular case for a longer time and his for a shorter duration and denied him equality of opportunity offending Article 14. These are not the kind of violations of fundamental rights that we are discussing, but it is something more substantial.

 

As Seervai points out as an illustration [H.M. Seervai, Constitutional Law of India, 4th Edn., Vol. 1, p. 395], if a Judge denied discretionary orders of a particular kind to members of one community while granting them under similar circumstances to members of another community, it is difficult to see how the court can shy away from its duty of nullifying such action as violation of fundamental right. To suggest that the aggrieved person should exhaust his remedies of appeals and/or revision would mean that the person is denied the fundamental right of having a speedy, effective remedy and the fundamental right and constitutional remedy under Article 32 is rendered a sonnet writ on water. It is not inconceivable that a Judge may commit breach of Articles 14, 15, 17, 19, 20, 21, 22 by his judicial order.

 

It is not uniformity of decisions or even the process of hearing or merely erroneous or mistaken or wrong decisions on constitutional or other legal points that can be said to be violative of fundamental rights. Such challenge must be more solid and meaningful and rest on surer foundations.

 

What may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection of law unless there is shown to be present in it an element of intentional and purposeful discrimination. [Stone, C.J. in Snowden v. Hughes9] As Hidayatullah, J. said in his Mirajkar3 dissent:

  1. 122. The power and jurisdiction of this Court [under Article 32] is so narrow that nothing on the merits of a controversy of a civil case can ever come up before it under Article 32. … It is unlikely that this Court will torture cases to fit them into Article 32. It cannot be brought here by pleading breach of fundamental rights. It is only when a Judge directly acts in some collateral matter so as to cause a breach of a fundamental right that the ordinary process of appeals being unavailable or insufficient, a case under Article 32 can be made out. … Where a High Court Judge acts collaterally to cause a breach of fundamental right, I am clear that an approach to this Court is open under Article 32.10

 

It is fruitful to refer to the concurring opinion of Frankfurter, J. in Snowden v. Hughes9:

  1. The Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the courts or the executive agencies of a State.11

 

This passage and the one from Stone, C.J. in the same case quoted supra were quoted by S.R. Das, J. in Budhan Choudhry v. State of Bihar12. But there is another passage in the same paragraph in the judgment of Frankfurter, J. (as Seervai points out p. 390) which is directly relevant:

  1. 30. … And if the highest court of a State should candidly deny to one litigant a rule of law which it concededly would apply to all other litigants in similar situations, could it escape condemnation as an unjust discrimination and therefore a denial of the equal protection of the laws?13

 

It is submitted that the two passages in the opinion of Frankfurter, J. taken together seem to lay down the correct principle, though that case did not relate to judicial orders as pointed out by Gajendragadkar, C.J. in Mirajkar3.

 

It is noteworthy that a unanimous Constitution Bench in Shivdev Singh v. State of Punjab14 held that the inherent power under Article 226 could be invoked by way of a writ petition to review an order made in an earlier writ petition where the High Court had passed an order to the prejudice of the person filing the fresh writ petition without having heard such person.

 

It is necessary and appropriate at this stage to refer to two other cases which have a bearing on this issue:

 

In Supreme Court Bar Assn. v. Union of India15, the SCBA filed a writ petition under Article 32 seeking a declaration that only the Disciplinary Committee of the Bar Council can impose any punishment on an advocate for professional misconduct and suspend his licence and courts have no such jurisdiction including under Articles 129, 142 or 215. This was a sequel to the Supreme Court in purported exercise of powers under Articles 129 and 142 holding16 an advocate guilty of contempt of court and sentencing him to simple imprisonment for 6 months which sentence was suspended for the time being and further suspending his licence/sanad for 3 years thereby debarring him from practising as an advocate. The Constitution Bench in SCBA15 unanimously held that the Court had no jurisdiction to suspend an advocate’s licence in exercise of powers under Article 129 read with Article 142. This was indeed a case of violation of fundamental right by a judicial order though it was not so contended expressly and the Supreme Court in exercise of its writ jurisdiction granted the relief.

 

In M.S. Ahlawat v. State of Haryana17, the challenge again was by way of a writ petition under Article 32 to an earlier order of the Supreme Court whereunder the petitioner was held guilty of an offence under Section 193 IPC-fabricating false records before the Supreme Court-and convicted and sentenced and he served the sentence. This was based only on the investigation which the Supreme Court had ordered and was without any trial. He was also convicted and sentenced for contempt of court under Article 129 which was not challenged. It was contended that in convicting the petitioner under Section 193 IPC the Court had completely stultified the procedure prescribed under the Code of Criminal Procedure thereby acting contrary to the mandate of Article 21. The Court observed that when a litigant complains of miscarriage of justice by an order of the Court passed without jurisdiction or without following the due procedure and resulting in his incarceration losing valuable liberty for a period with attendant catastrophe descending on his career and life, the Court has no option but to examine the correctness of the contentions. The Court also observed that to perpetuate an error is no virtue but to correct it is a compulsion of judicial conscience. Accordingly the Court unhesitatingly recalled and set aside the order18 made earlier convicting the petitioner under Section 193 IPC, while upholding the conviction and sentence under Article 129.

 

The Court further held that the order setting aside the conviction would not enable the petitioner to claim any compensation or initiate any proceedings in any court arising out of his conviction except to use the same in any proceeding initiated against him departmentally regarding his service. This was on the basis of an affidavit filed by the petitioner. But such affidavits and undertakings or contracts waiving one’s fundamental rights are void and unenforceable. It is submitted that the Court was clearly not right as far as this part of the order is concerned.

 

It is seen that this was a typical case of breach of a person’s fundamental right by a judicial order of the highest court. It was so contended expressly in a writ petition under Article 32 which was allowed. It would appear that in both these cases the Court was not impeded by procedural technicalities. What, therefore, emerges is that the Supreme Court has granted the appropriate relief without expressly acknowledging violation of fundamental rights by judicial orders. This does not seem to be apt or commendable. Yet curiously even thereafter in Hurra case5 the Supreme Court asserted that a judicial order cannot violate fundamental rights.

 

Interestingly and significantly the Supreme Court in Ram Deo Chauhan v. Bani Kanta Das19, expressly recognised that a judicial order may violate fundamental rights. This was a review in a writ petition under Article 32. It was stated,

 

The assumption … that there can be no violation of a person’s human rights by a judgment of this Court is possibly not correct. … The instances of this Court violating the human rights of citizens may be extremely rare but it cannot be said that such a situation can never happen. We can remind ourselves of the majority judgment of the Constitution Bench in ADM, Jabalpur20.21

 

The order of the Governor under Article 161 commuting the death sentence to life imprisonment which was set aside in the earlier writ petition was restored.

 

It is pertinent to refer to Anjan Kumar Banerjee v. State of W.B.22 where on 20-2-2009 a two-Judge Bench referred to a larger Bench the matter whether breach of fundamental rights is possible by courts-judicial order, whether court is included in “State” under Article 12 and whether a writ petition could be entertained to recall earlier orders of the court on the ground that they violated fundamental rights. But quite unfortunately on 9-10-2012 a three-Judge Bench dismissed23 the case. The questions have remained unanswered.

 

In Ashiq Hussain Faktoo v. Union of India24 (decided on 24-9-2014 by a two-Judge Bench) a writ petition under Article 32 was filed against the Supreme Court judgment25 reversing the judgment of acquittal to that of conviction allegedly based on impermissible confession breaching Article 21. It was ordered that the writ petition be converted into a review petition to be heard in open court on the fundamental principles of review as well as the maxim ex debito justitiae. However, a three-Judge Bench in Ashiq Hussain Faktoo v. Union of India26 (decided on 30-8-2016) held that frantic cries of injustice founded on perceived erroneous application of law or appreciation of facts was not enough to extend the frontiers of the ex debito justitiae jurisdiction, that open court hearing of review petitions in terms of Mohd. Arif27 decision was available as of right only in death sentence cases and the petition was dismissed as not maintainable on the basis of Hurra5 decision. It is submitted that this is unexceptionable.

 

As the Almighty does not share His omniscience and infallibility with the judiciary, it would be naive to suggest that judicial function/order can never result in breach of fundamental rights. Laying down such a legal position is merely shying away from the truth and an illustration of an egocentric exercise of power. It cannot be stated as a proposition that the exercise of judicial/quasi-judicial power by any authority cannot at all result in breach of fundamental rights. Judicial power of the State stricto sensu is exercised by courts. However, it is also exercised in some ways and to some extent by the other wings. The Tribunals and even executive authorities exercise that power. Parliament and State Legislatures in the exercise of their privileges-enforcing the privilege and punishing for its breach-exercise a quasi-judicial power. That may also result in breach of fundamental rights which makes the proceeding suffer from not mere procedural irregularity but substantive illegality or unconstitutionality rendering that exercise of power amenable to review and correction in writ jurisdiction. When such is the legal position, it is incomprehensible as to how and why, when the judiciary discharges judicial function there can never be any violation of fundamental rights. When the exercise of quasi-judicial power can result in violation of fundamental rights, there is no reason why exercise of judicial power stricto sensu cannot breach fundamental rights. This is all the more possible in cases of judicial legislation where decisions of the court may often violate rights, including fundamental rights, of persons not before the court. It is immaterial in this context as to which body or authority or wing exercises that power. There cannot be an artificial exclusion of the judiciary on any fragile ground. That a judicial decision cannot affect fundamental rights appears to be mere ipse dixit without any constitutional or jurisprudential support. It would mean that the judiciary while discharging judicial functions is above the Constitution. The superior judiciary too is a creature of the Constitution. It cannot be placed on a high pedestal removed from and above the Constitution and the law.

 

Basu in his Commentary on the Constitution of India (7th Edn., Vol. A/1, pp. 256-65), also points out how the proposition is flawed. Apart from the fact that the exclusion of a judicial decision emasculates the concept of “State action” as embodied in Article 12, it is not supportable either on juristic principles or on the very text of Article 12 itself. The very foundation of the assumption that Article 12 does not extend to courts does not survive after the decision in Rajasthan Electricity Board28.

 

To say that the application of the fundamental rights has a narrower scope against a judicial decision is different from the radical proposition that the Judiciary is excluded from the definition of “State” in Article 12, so that there cannot be any collateral constitutional remedy against a judicial decision. (p. 257)

 

He further says (p. 261) that the courts too are limited by the Constitution’s mandatory provisions and cannot be allowed to override fundamental rights under the shield that they have, within their jurisdiction, the right to make an erroneous decision. A decision contravening fundamental rights is not merely a wrong decision, but one without jurisdiction and a nullity. It cannot be contended that a court has jurisdiction to violate the Constitution-the higher law by or under which all courts are constituted; a constitutionally invalid decision is void for want of jurisdiction.

 

Such cases of violation of fundamental rights by the judiciary may be few and far between and it may be difficult to delineate their contours with certainty and precision. The court would have to examine and give a finding in each case. But as a proposition it may be constitutional blasphemy.

 

The major premise is that the judiciary too (like any other authority) even in rendering a judicial decision may violate fundamental rights. This can be said to be firmly established from the discussion above. The minor premise is-what is the remedy for such violation?

 

Whether a judicial order can violate fundamental rights does not and cannot depend upon what, if any, is the remedy for such violation. The existence of a constitutionally guaranteed fundamental right cannot and does not depend on the technicalities of its enforcement and the availability of a remedy. Remedy, if not readily visible or available, would have to be innovated and the fundamental right enforced.

 

The root principle of law married to justice is ubi jus ibi remedium, as stated in Shiv Shankar Dal Mills v. State of Haryana29, that is, where there is a right there is a remedy. It is not the other way round. Hence violation of a right must necessarily have a remedy. Now, as has been noted, that the judiciary may, in exercise of judicial powers, commit a breach of fundamental rights, such breach cannot go unredressed. Therefore the issue of whether a writ of certiorari will go to a court is really immaterial and need not detain us. That is looking at the problem from the wrong end.

 

In Pinochet case30 the House of Lords set aside its decision (R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte31). So did our Supreme Court in SCBA15 and Ahlawat17. In Hurra5 the Supreme Court held that the decision of the Court may be assailed and set aside. How that is to be done-in what proceedings and in what manner-is altogether different. Strangely and unfortunately the Supreme Court has examined the whole issue from the wrong end, from the point of view of the remedy, whether it can be effectively granted. In so doing the Court missed the cardinal principle that where there is a right and it is infringed there ought to be a remedy.

 

Article 32 guarantees protection and enforcement of fundamental rights and invests the Supreme Court with power to issue appropriate directions, orders or writs for the said purpose including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Under Article 226 the High Courts are invested with the same power for the enforcement of fundamental rights and for any other purpose. It is well settled that in India we do not have to be bogged down by the technicalities of English prerogative writs and the expression “writs in the nature of” has enlarged the jurisdiction and made it more comprehensive. It is equally settled right from 1950 itself that the powers conferred on the Supreme Court under Article 32 are much wider and not confined to issuing prerogative writs only (Rashid Ahmed v. Municipal Board, Kairana32, SCC at p. 227, para 14 : AIR at p. 165). Any construction introducing unnecessary procedural restrictions defeats the very purpose of Articles 32 and 226 (Dwarka Nath v. ITO33, AIR at p. 84-85).

 

In M.C. Mehta v. Union of India (Shriram-Oleum Gas)34, the Constitution Bench unanimously laid down:

  1. 7. … this Court under Article 32(1) is free to devise any procedure appropriate for the particular purpose of the proceeding, namely, enforcement of fundamental right and under Article 32(2) the court has the implicit power to issue whatever direction, order or writ is necessary in a given case, including all incidental or ancillary power necessary to secure enforcement of the fundamental right. … Article 32 is not powerless to assist a person when he finds that his fundamental right has been violated. He can in that event seek remedial assistance under Article 32.35

What is said of the Supreme Court under Article 32 would apply pro tanto to the High Courts under Article 226.

 

To start with the deficiencies of the English prerogative writ of certiorari to curtail or deny protection of the guaranteed right under Article 32 is to put the cart before the horse. In the light of this, and even otherwise, examining whether a writ of certiorari can issue to a court to remedy the infringement of a fundamental right is both unnecessary and inappropriate. Enforcement is not the real test of the existence of a right or its violation.

 

Fundamental rights are guaranteed and any action infringing fundamental rights is void. The right to have the fundamental rights enforced is itself a fundamental right. Article 32 deals with remedies for enforcement of fundamental rights as is clear from its heading. Article 226 is no different. It is trite that the existence of a right is the foundation for invoking the writ jurisdiction. The perceptive remarks of Mathew, J., though extra curial, are illuminating:

 

The realization that Article 226 is concerned with remedies, and not rights, is the beginning of wisdom in constitutional law.36

 

He further states that hence if a person has a right, he would be entitled to enforce that right by a suit on the basis ubi jus ibi remedium even if the remedy by way of a writ is not available. The scope of declaratory actions being wide enough, the relief against breach of fundamental rights would be available.

 

Therefore the relief against violation of fundamental rights by a judicial order, even of the highest court, can be obtained in a regular civil suit in the court of first instance. Such is also the position laid down by the Privy Council in Secy. of State v. Mask & Company37 that even if the jurisdiction of the civil courts is excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. When that was the position prior to the Constitution, then with fundamental rights guaranteed now the case for the courts to intervene would be even stronger. What can be done and secured in a suit in a civil court can also be secured in proceedings under Article 226 before the High Court. The only specialty about Article 32 is that it is itself a fundamental right. All these proceedings under Article 32 or 226 or a civil suit under Section 9 of the Civil Procedure Code are different remedies. The relief may take varied forms and may be moulded to meet the exigencies. Theoretically this appears to be the unassailable position. If there are any practical problems, that is another matter.

 

It is submitted that it would not be necessary to issue a writ of certiorari to quash the offending judicial order which violates fundamental right. It would be enough if there is a declaration to the effect that the order is null and void.

 

As pointed out in Wade and Forsyth, Administrative Law (10th Edn., p. 529) dealing with declaratory orders:

 

A mandatory order is often used as an adjunct to a quashing order. … But either remedy may be used by itself. … If a mandatory order is granted without a quashing order, the necessary implication is that the defective decision is a nullity, for it is only on this assumption that a mandatory order can operate. A simple mandatory order does the work of a quashing order automatically.

 

If this is so in England without a written Constitution and a Bill of Rights and the historical technicalities of prerogative writs, what to say of India-with guaranteed fundamental rights with the right to enforce those fundamental rights itself being a fundamental right that is guaranteed. The Court may make a declaratory order that what is complained of has breached fundamental right(s) and cannot be allowed to remain.

 

It is needless to say that all this is, of course, subject to the finality of judgments/orders. What is necessary is that a challenge on this ground has to be examined and a decision given, it is not that successive or repeated challenges can be raised till one succeeds.

 

It is, therefore, submitted that the postulate that a judicial order cannot at all violate fundamental right(s) and there is no remedy in writ jurisdiction for such violation, if any, is wholly unsupportable. Even when the position has been diluted by the Court granting relief in some cases, the ghost of Mirajkar3 seems to haunt us and its incantation continues to be repeated. Mirajkar3 being overruled and buried in the dustbin of history would serve the law and the nation better. The vindication of fundamental rights against their breach by whomsoever is not a confrontation but it is really the protection of the integrity of the Constitution, a solemn exultation of the Constitution which is the judiciary’s and particularly the Supreme Court’s constitutional obligation.

 

The exercise of the power of judicial review by issue of appropriate writs, especially when it concerns protection and enforcement of fundamental rights has to be robust. It is of utmost importance that, as Chandrachud, J. said, “[in] the last analysis the people for whom the Constitution is meant, should not turn their faces away from it in disillusionment for fear that justice is a will-o’-the wisp.” (State of Rajasthan v. Union of India38.)


*The article has been published with kind permission of SCC Online cited as (2021) 3 SCC J-44

* Advocate. Author, Working of the Constitution : Checks and Balances (1st Edn. 2014, Eastern Book Company) and Revising Author, V.G. Ramachandran’s Law of Writs [7th Edn. 2021 (In Press), Eastern Book Company].

1(1980) 3 SCC 625.

2[1913] A.C. 417, p. 477 (HL).

3Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.

4A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602.

5Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388.

6Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

7Id, pp. 877-78, paras 1703-04.

81948 SCC OnLine US SC 59, para 30 : 92 L.Ed 1161 : 334 US 1 (1948).

91944 SCC OnLine US SC 18 : 88 L Ed 497 : 321 US 1 (1944), p. 16.

10Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, p. 34, para 122.

11Snowden v. Hughes, 1944 SCC OnLine US SC 18, para 30 : 88 L Ed 497 : 321 US 1 (1944).

12AIR 1955 SC 191.

13Snowden case, 1944 SCC OnLine US SC 18, para 30.

14AIR 1963 SC 1909.

15(1998) 4 SCC 409.

16Vinay Chandra Mishra, In re, (1995) 2 SCC 584.

17(2000) 1 SCC 278.

18Afzal v. State of Haryana, (1996) 7 SCC 397.

19(2010) 14 SCC 209, p. 224.

20ADM, Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.

21Ram Deo Chauhan case, (2010) 14 SCC 209, p. 224, paras 50-52.

22(2014) 1 SCC 697.

23Anjan Kumar Banerjee v. State of W.B., WP (C) 49 of 2009, order dated 9-10-2012 (SC).

24(2016) 9 SCC 746.

25CBI v. Ashiq Hussain Faktoo, (2003) 3 SCC 166.

26(2016) 9 SCC 739.

27Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737.

28Rajasthan SEB v. Mohan Lal, AIR 1967 SC 1857.

29(1980) 2 SCC 437.

30R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No.2), [2000] 1 A.C. 119 : (1999) 2 WLR 272 (HL).

31[2000] 1 A.C. 61 : (1998) 3 WLR 1456 (HL).

321950 SCR 566 : AIR 1950 SC 163.

33AIR 1966 SC 81.

34(1987) 1 SCC 395.

35Id, pp. 407-08, para 7.

36K.K. Mathew, Democracy, Equality and Freedom, Eastern Book Company, (1978), p. 21, fn 46.

371940 SCC OnLine PC 10 : AIR 1940 PC 105.

38(1977) 3 SCC 592, p. 646, para 134.

Case BriefsHigh Courts

Bombay High Court: G.S. Patel, J., held that the reporter or any other commentator should not deliver for public consumption a view on the quality of evidence before judgment is pronounced. Only the Court can do that and that is firmly and exclusively the prerogative of the Court.

High Court noted that the 2nd respondent had gone beyond what was legitimately permissible in its reportage of a part of the cross-examination in the present matter.

Further, the Court stated that, in proceedings, in an Open Court System fair reporting cannot be restrained, except perhaps in the most extraordinary circumstances, or where there are valid issues of privacy and security.

“…with modern communications technology, the nature of reporting — often from the well of the Court itself — has radically changed: we often now see updates going out every few minutes on digital media.”

Expressing more on the said matter, Bench stated that there is a limit to what a news report can say and do.

“…fair reporting of court proceedings does not extend to comments on the quality of evidence or arguments before a Court before judgment is delivered. Assessing those — finding them good or bad —is no part of a reporter’s job. It is the work of a Court and only a Court.”

Elaborating the above, High Court remarked that Judges and lawyers are trained in the matter of appreciation of the entire body of evidence in a trial. It is often described as an art. A reporter or commentator, whether a journalist, columnist or a lay person, is certainly entitled to critically examine the resultant judgment. He or she is perfectly at liberty to critique or criticize that judgment, in terms that may even be fierce, harsh and unsparing.

What assessment can reporter do?

High Court added that simply noting a particular question and answer might also be acceptable, or at least not objectionable. But the line is crossed when such reproduction is accompanied by what is effectively a judgment on merits, a statement that purports to assess the evidentiary value and weight of the cross-examination in a matter yet pending before Court; for instance, by suggesting that some part of the cross-examination was repetitive or ineffective or futile. That is an assessment that no Court reporter can do.

An editorialising of yet-to-adjudged evidence, when communicated publicly, directly affects the decision-making process and, more importantly, clouds the perception of necessary neutrality in the decision-making process.

“…a fleeting impression by a journalist of the value of evidence is entirely beyond his or her legitimate scope. Such a journalistic pronouncement becomes unacceptable when it is conveyed to the reading audience or public as something already decided, or about which no other view is possible.”

Stating that the understanding of the process of appreciation of evidence, with which lawyers and judges are familiar not to be obvious to others who watch or follow a trial, Court held that the Udaipur Times was an advertent error.

“…the press and courts each have their roles to play. Each must respect the other’s duties and responsibilities, always careful not to cross the dividing lines. If courts should not gag or silence the press, then, equally, the press must be reasonably circumspect about entering a territory that is exclusively the preserve of a court.”

Dr Saraf assured the Court that the above has been explained to the staff concerned at the Udaipur Times and stated that no repetition of such would be committed.[Taher Fakhruddin Saheb v. Mufaddal Burhanuddin Saifuddin, 2021 SCC OnLine Bom 1579, decided on 27-07-2021]


Advocates before the Court:

Mr Anand Desai, with Mr Chirag Mody, Mr Samit Shukla, Mr Nausher Kohli, Ms Saloni Shah & Ms Shivani Khanwilkar, i/b DSK Legal, for the Plaintiff in Suit and for Respondent No. 1 in IA/1152/2021 in S/337/2014.

Mr Iqbal Chagla, Senior Counsel, with Mr Fredun DeVitre, Senior Counsel, Mr Pankaj Savant, Senior Counsel & Mr Murtaza Kachwalla, i/b Argus Partners for the Applicant/Original Defendant.

Dr Birendra Saraf, Senior Advocate, with Dipesh Siroya, i/b Dipesh Siroya, for Respondent 2.

Experts CornerSiddharth R Gupta

One of the great liabilities of history is that all too many people fail to remain awake through great periods of social change. Every society has its protectors of status quo and its fraternities of the indifferent who are notorious for sleeping through revolutions. Today, our very survival depends on our ability to stay awake, to adjust to new ideas, to remain vigilant and to face the challenge of change.”

Martin Luther King, Jr.[1]

 

The reasonable man adapts himself to the world; the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”

George Bernard Shaw[2]

 


In Part I of the Article, the preliminaries of the title were discussed threadbare. It was a conceptual discussion veering around “open courts”, “publicised justice” and their Indian context. Also discussed were the statutory provisions under the Indian laws mandating requirements of “open courts” and “publicised justice”. Some  innovative instances adopted by few of the Judges in the early 21st century for live streaming of their court proceedings were also quoted. Part I thus concluded for Part II to take the subject ahead to Swapnil Tripathi v. Supreme Court of India[3] judgment and its trail.

 

Read Part 1 HERE


 

“Swapnil Tripathi” Judgment and its Trail in 3 Years

A law student from National Law University, Jodhpur, Swapnil Tripathi, approached the Supreme Court with an inventive plea that the proceedings of Supreme Court of India, especially Constitutional Bench matters are far removed and inaccessible for bright and meritorious law students whose learning experience is bereft of any practical exposure. In his plea before the Supreme Court, he posed the difficulty that law students face, being pushed out in the corridors, when the courts are jam-packed with seniors arguing ticklish constitutional issues. Thus, there never arises any occasion for any law student to observe, watch and pick up from court proceedings. It was thus pleaded that the court proceedings of all the constitutional courts must be live streamed. Unexpectedly, the plea found favour unanimously with all members of the Bench, headed by erstwhile Chief Justice of India, Mr Justice Dipak Misra.

 

The 3-Judge Bench comprising also Mr Justice A.M. Khanwilkar and Dr Justice D.Y. Chadrachud, in their separately authored but concurring judgments delved deep into international practices of various courts on live streaming and real-time screening of the court proceedings. Examples were quoted in galore from countries like Israel, France, Germany, Britain, United States, Canada, Singapore, etc. by the Court to accede to arguments of the law student that live streaming is an essential aspect of the justice dispensation system of any country. The majority opinion authored by Justice A.M. Khanwilkar accepted that live streaming procreates justice that is easily visible on smartphones or such utilitarian widgets, instead of the person undergoing a rigmarole of travelling all the way to courts with resultant mental agony of arranging means to somehow attend his case in time. The Court accepted the plea that a “publicised justice” through live streaming becomes extremely affordable, as it brings the whole system virtually at the doorstep of the litigant or those wanting to observe it closely from the legal fraternity, even law students. Court also examined the exceptions brought on record by the Attorney General to live streaming, cases that warrant secrecy, confidentiality and be curtained from the normal process of live streaming.

 

The concurring judgment authored elegantly by Dr Justice Chadrachud elaborated how live streaming makes judiciary accountable and acceptable to those it is meant to serve i.e. the litigants. Quoting the celebrated saying of Justice Louis Brandeis[4], “sunlight is the best disinfectant”, Justice Chandrachud observed how live streaming makes Judges conscious in their conduct; fair in their approach towards the counsels and those listening to them, which transparency is bound to bode well for the institution in the longer run. It also makes each and every participant in the court extremely cautious and cognizant of whatever he is arguing before the court of law.

 

Live streaming as “one pill for many ills” is the synthesis of the wide spectrum of observations recorded in the concurring judgment of Justice Chandrachud in Swapnil Tripathi case[5].

 

Summing up, the groundbreaking verdict of the Swapnil Tripathi case[6] made publicity, visibility, open access to virtual courts a rule/norm and its denial (in particular cases to be discussed below) an exception.

 

It has been more than 3 years since the judgment of Swapnil Tripathi[7] was handed over to the nation by the Supreme Court, but perhaps its observance in reality by all the High Courts is yet to be witnessed. Except the Gujarat and the Karnataka High Courts, that too only for their Chief Justice’s Court, no other High Court of the country has perhaps ventured out to join the fray of taking the path-breaking decision of live streaming of all its courts. The success of live streaming can be gauged from the fact that the official YouTube channel of the Gujarat High Court as on 21-6-2021 had more than 60,000 subscribers and more than approximately 60 lakh views of various videos uploaded as part of live streaming.

 

Preceding the decision of the Gujarat High Court to live stream its proceedings was an earnest endeavour made by another law student from Nirma University who took the courage to file a writ petition before the High Court, titled as Pruthvirajsinh Zala.[8] The Division Bench of the High Court led by its Chief Justice Mr Vikram Nath, though disposed of the writ petition holding that the issue is being looked into on the administrative side by the E-Committee of the High Court, but in the process there were few very important takeaways from the High Court’s judgment. The High Court elaborately discussed the mechanism evolved by various High Courts of the country, including the Kerala High Court for ensuring either live streaming or “open access to courts” through State-to-State methodologies. Vide paras 8 and 9, the judgment beautifully correlates the right to know and learn as a facet of Article 19(1)(a) and how public display or judicial proceedings serves this right appropriately. Soon thereafter with effect from the first week of October 2020, the Chief Justice led Bench started live streaming of its proceedings on a daily basis. Though all other courts of the Gujarat High Court are yet to emulate that decision, however something is always better than nothing. Recently, with effect from the first week of June 2021 the Karnataka High Court also joined the fray with its Chief Justice led Division Bench live telecasting its proceedings.

Except these two High Courts, sadly, despite the passage of more than 3 years, no other High Court has stepped out to make its proceedings public. This includes the hyped High Courts of the country like Delhi, Bombay, Kolkata, etc. The inaction on the part of constitutional courts of the country, specifically the High Courts is not only concerning but also disconcerting.

Recently, the Standing Committee of the Parliament tabled its 103rd Report titled as “103rd Report on Functioning of Virtual Courts/Court Proceedings through Video Conferencing” before both the Houses of Parliament on 11–9-2020.[9] The Report underscored the necessity of promoting openness and transparency for reinforcing public faith in the judicial system. Vide Para 2.38 (at p. 10) of the Report, the said Public Accounts Committee (PAC) Report observed thus:

 

“2.38 The Committee notes that world over, court proceedings are recorded in some form or the other. The Supreme Court has time and again emphasised the significance of live streaming of court proceedings in promoting openness and transparency which in turn reinforce public faith in judicial system. The Committee agrees with the observation made by the Supreme Court that live streaming court proceedings, especially cases of constitutional and national importance having an impact on public at large or a section of the public will promote transparency and openness. The litigant need not come to the court to watch the proceedings and thus will reduce crowding inside the court. The judiciary may also consider broadcasting virtual hearings of certain specified categories of cases to further the principle of open justice and open court.”

 

The PAC whilst arriving at the aforesaid conclusion referred to a host of judgments of various courts, including that of the Gujarat High Court; views and opinions conveyed by the eminent citizens of the society and such other stakeholders.

 

Exceptions to Live Streaming and Visibility of Courts

 

As stated infra, public access to courts had been made a rule and secrecy its exception. Even the concept of live streaming is not without exceptions. There are catena of cases and circumstances where a closed and a four-walled court is expedient in the larger interests of the litigant as also the society so that the demeanour of the Judges, counsels, witnesses or any participant of the proceedings does not spill out in public. Swapnil Tripathi[10] also elaborately discussed the exceptions where live streaming may be dispensed with for averting threats of misuse of dialogue and discussion exchanged inside the court. The report of Attorney General was adverted to at length and broadly the following category of cases as an illustration (not exhaustive) were considered to be outside the pale of the rule of public visibility. Vide Swapnil Tripathi case[11], para 49:

 

(i) Matrimonial matters.

(ii) Matters involving interests of juveniles or the protection and safety of the private life of the young offenders.

(iii) Matters of national security.

(iv) To ensure that victims, witnesses or defendants can depose truthfully and without any fear, special protection must be given to vulnerable or intimidated witnesses. It may provide for face distortion of the witness if she/he consents to the broadcast anonymously.

(v) To protect confidential or sensitive information, including all matters relating to sexual assault and rape.

(vi) Matters where publicity would be antithetical to the administration of justice.

(vii) Cases which may provoke sentiments and arouse passion and provoke enmity among communities.

 

The aforesaid category was stated to be illustrative and it was left to the discretion of the constitutional courts to determine those categories of cases, which were to be excepted from public viewership. This is however with a rider that the excepted cases must belong to the same genre of those enumerated in the list in the Attorney General’s report.

 

The Supreme Court has also echoed the requirement of “in-camera proceedings” wherever needed from time to time. In Supt. and Remembrancer of Legal Affairs v. Satyen Bhowmick[12] it was so said in following words:

  1. We might also mention that Section 14 was interpreted by this Court in Naresh Shridhar Mirajkar v. State of Maharashtra[13] where this Court while dealing with the question of holding proceedings in camera observed as follows:

 

21. Having thus enunciated the universally accepted proposition in favour of open trials, it is necessary to consider whether this rule admits of any exceptions or not. Cases may occur where the requirement of the administration of justice itself may make it necessary for the court to hold a trial in camera. While emphasising the importance of public trial, we cannot overlook the fact that the primary function of the judiciary is to do justice between the parties who bring their causes before it. If a Judge trying a case is satisfied that the very purpose of finding truth in the case would be retarded, or even defeated if witnesses are required to give evidence subject to public gaze, is it or is it not open to him in exercise of his inherent power to hold the trial in camera either partly or fully? … That is why we feel no hesitation in holding that the High Court has inherent jurisdiction to hold a trial in camera if the ends of justice clearly and necessarily require the adoption of such a course. … It is the fair administration of justice which is the end of judicial process, and so, if ever a real conflict arises between fair administration of justice itself on the one hand, and public trial on the other, inevitably, public trial may have to be regulated or controlled in the interest of administration of justice.”

 

Even otherwise, a number of statutes provide for exceptions to “open courts”, even when convened physically and mandate their holding in camera. Some such special enactments are as follows:

(a) Under Juvenile Justice (Care and Protection of Children) Act, 2000, young offenders (below 16 years of age) are tried in closed rooms before the Juvenile Board. This Board consists of Chief Judicial Magistrate as the Chairperson with two social workers as its members. Though there is no express provision for in-camera trial, the intent of statutes at many places requires the proceedings to be not carried at par with normal courts.

(b) Matrimonial matters also, specifically those concerning judicial separation, restitution of conjugal rights, divorce, impotency, adultery, etc. This is because the right to reputation of both the parties to the lis is of paramount importance to be balanced and preserved from general gaze.

(c) Similarly, Section 11 of the Family Courts Act, 1984 authorises the Family Court to accept a certain set of proceedings wherever Family Court is convinced about maintaining its secrecy. This is however subject to exercise of due care and caution by the court with reasons to be recorded in writing for denying public access to such proceedings.

(d) Section 327(3) CrPC, 1973 itself contains an exception by mandating prior permission of the court in publication, printing of particular categories of proceedings. Breach of Section 327(3) has been made punishable under Section 228-A IPC, 1860, which reads thus:

228-A. Disclosure of identity of the victim of certain offences, etc.—(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376-DA, Section 376-DB or Section 376-E is alleged or found to have been committed (hereafter in this section referred to as “the victim”) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.

(e) Section 44 of the Unlawful Activities (Prevention) Act, 1967 authorises the court to hold proceedings in camera or pass any order that may be necessitated for keeping the identity of witnesses or their addresses intact. The court can even put a moratorium on publication of its proceedings by the media, violation of which entails penal consequences.

 

From the examples above, it is beyond any pale of doubt that even live streaming has its own exceptions, embodied in various enactments. However all such exceptions are for special reasons, geared towards either the protection of  reputation or preservation of identity or address of the witness; when concerns of privacy trump over public disclosure of certain facts, which may put at risk the mutual relations between two persons, etc. Therefore whenever there is an attempt to curtail the public dissemination of court proceedings or an attempt to restrict access to openness of courts, what is to be examined is the outweighing concern or the equity that mandates such secrecy. If, on examination of all the necessary aspects, one arrives at a conclusion that public interests at large would be served more by disclosure than by secrecy, then exceptions cannot be allowed to defeat the rule and vice versa.

 

Oral Proceedings and Right to Report of Journalists

Lately there has been a lot of discourse and debate on the media’s right to live access and reporting of court proceedings, especially virtual court proceedings. In other words, it is a “right to report of journalists” which is stated to have been derived from Article 19(1)(a) of the Constitution of India as a concomitant to the “fundamental right to know”. Not much needs to be dilated upon right to know as expounded by the Supreme Court under Article 19(1)(a) as an essential attribute of freedom of speech and expression. In State of U.P. v. Raj Narain[14], the Supreme Court categorically held that freedom of speech and expression is directly correlated with the right to information and the right to know about the happenings in the society especially those occupying positions of power. The celebrated observations of the Supreme Court in State of U.P. v. Raj Narain[15] read as follows:

 

  1. 74. In a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security.

 

On the same lines were the observations of Supreme Court in Reliance Petrochemicals Ltd. v. Indian Express Newspapers Bombay (P) Ltd.[16], wherein the Court further expanded this right and recognised that the right to information is a fundamental right under Article 19 read with Article 21 of the Constitution. This Court in Reliance Petrochemicals case[17] observed that:

 

    1. 34. … We must remember that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform.

 

The right to know holds special importance for journalists, especially those whose primary responsibilities include live reporting of any decision-making process be that of the executive or of the courts. Therefore journalists, especially from  online media networks, have been clamoring for their right to report as a necessary corollary to Article 19(1)(a) rights. A spate of petitions have been filed before various High Courts by  journalists claiming that their right to report includes the right to access live court proceedings. Journalists of online legal media platforms like Bar and Bench and Live Law have approached Allahabad High Court[18] and the Madhya Pradesh High Court[19] in the recent past for being permitted to access court proceedings on a real-time basis.

 

The cause of action for journalists to approach various High Courts was fuelled by the recent judgment of the Supreme Court in Chief Election Commr. v. M.R. Vijayabhaskar[20] wherein the Supreme Court was approached to examine the plea for expunging of oral remarks made by Madras High Court. Shorn of unnecessary details, the Division Bench of the High Court presided by its Chief Justice orally remarked that officers of Election Commission must be booked and tried for murder charges. The aforesaid remarks became a subject of intense debate over social media as also in television debates, where people on both sides of the divide levelled aspersions on Commission for holding elections amidst peak of Covid pandemic. These oral remarks made by the Court escalated the issue so much that the Chief Election Commissioner had to knock at the doors of Supreme Court for the deletion of the said remarks. The Supreme Court Bench headed by Dr Justice D.Y. Chandrachud thus was seized of a golden opportunity of examining the right of media to report “course of proceedings” convened before the constitutional courts of the country, especially the High Courts. The Court beautifully correlated Article 19(1)(a) with the “right to report of journalists”, in a digital age, where live tweeting of any information has the cascading effect of generating a forest fire. The Court vide paras 23 and 31  of Vijayabhaskar case[21] upheld the right of journalists and media to live report the court proceedings and observations, including even those that may not even be encrypted as part of the final order or judgment of the Court. The Court elevated the inalienable rights of free speech and expression reading in them the right to have live access to court proceedings, which makes justice dispensation transparent and has the effect of making everybody accountable in the process including Judges on the Bench. Some of the observations of the Supreme Court that have got perpetually engraved on the wall can be quoted as follows:

 

    1. 23. Cases before the courts are vital sources of public information about the activities of the legislature and the executive An open court serves an educational purpose as well. The court becomes a platform for citizens to know how the practical application of the law impacts upon their rights. In Swapnil Tripathi v. Supreme Court of India,[22] a three-Judge Bench stressed upon the importance of live streaming judicial proceedings. One of us (D.Y. Chandrachud, J.) analysed the precedent from a comparative perspective:

 

82. … Through these judicial decisions, this Court has recognised the importance of open courtrooms as a means of allowing the public to view the process of rendering of justice. First-hand access to court hearings enables the public and litigants to witness the dialogue between the Judges and the advocates and to form an informed opinion about the judicial process.

 

    1. 83. The impact of open courts in our country is diminished by the fact that a large segment of the society rarely has an opportunity to attend court proceedings. This is due to constraints like poverty, illiteracy, distance, cost and lack of awareness about court proceedings. Litigants depend on information provided by lawyers about what has transpired during the course of hearings. Others, who may not be personally involved in a litigation, depend on the information provided about judicial decisions in newspapers and in the electronic media. When the description of cases is accurate and comprehensive, it serves the cause of open justice. However, if a report on a judicial hearing is inaccurate, it impedes the public’s right to know. Courts, though open in law and in fact, become far removed from the lives of individual citizens. This is anomalous because courts exist primarily to provide justice to them.”

emphasis supplied

***31. Our court has performed its modest part to acknowledge the rapid pace of the development of technology, and our need to keep up. In Swapnil Tripathi[23], it noted:

 

“C. Technology and Open Court

    1. 84. In the present age of technology, it is no longer sufficient to rely solely on the media to deliver information about the hearings of cases and their outcomes. Technology has become an inevitable facet of all aspects of life. Internet penetration and increase in the use of smartphones has revolutionised how we communicate. As on 31-3-2018, India had a total of 1206.22 million telecom subscribers and 493.96 million internet users. Technology can enhance public access, ensure transparency and pave the way for active citizen involvement in the functioning of State institutions. Courts must also take the aid of technology to enhance the principle of open courts by moving beyond physical accessibility to virtual accessibility.”

Reverting to the journalists’ plea, they have eventually been successful before both the Allahabad as well as the Madhya Pradesh High Courts. The Allahabad High Court on the administrative side decided to display the joining link publicly on its website for enabling the media and journalists to join the ongoing court proceedings. The E-Committee of the Madhya Pradesh High Court also in the same vein, filed an affidavit before court stating that mechanism shall soon be evolved through which one and all from media shall be allowed to closely watch and observe live court proceedings virtually. However, even though two High Courts of the country have taken a call to publicly display the joining links for access by media, the other High Courts of the country are yet to follow suit. Maybe for the journalists, it is supposed to be a long-drawn battle of approaching all the High Courts one by one for the same relief. However once live streaming of all the courts sees the light of the day, then possibly this series of litigation may not be required at all.

 

Epilogue

It is time to draw curtains on a detailed  article which attempts to deal with all the possible facets of live streaming. Whoever I have spoken to in the recent past, advocates for adoption of live streaming as a cherished utopian. However, words lack action and that is where the Indian judicial system is failing itself on an opportunity it was offered to by one of the landmark judgments of the Supreme Court in 2018 i.e. Swapnil Tripathi.[24] A practice being followed consistently over a passage of time becomes a precedent and this is what is precisely happening with all the High Courts of the country. None wants to venture ahead and show alacrity in adoption of the idea of live streaming. High Courts are headed by Chief Justices, who are akin to captains of a sailing ship and they are supposed to take a call on such vital policy issues. The Bar per se may not take the lead until the Chief Justice of the High Court concerned shows his readiness for public viewership of the proceedings of his court. Perhaps half of the job would be done the day when learned Chief Justices of the respective High Courts themselves go an extra mile and prove to be role models for all the puisne Judges of their High Court. Gujarat and Karnataka are more than enough for other High Courts to emulate. On a lighter note, I am reminded of the lines of brand ambassador for Gujarat and millennial actor Mr Amitabh Bachchan, “kuch din to gujaro Gujarat me”. In the present scenario, the slogan holds much pertinence for the learned Chief Justices of all the High Courts of the country to spend a few minutes watching how seamlessly proceedings of Gujarat High Court are screened on YouTube.

 


†Siddharth R. Gupta, Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

††Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.

 

[1] Martin Luther King, Jr., was an African American Baptist Minister and activist, who became the first President of the Southern Christian Leadership Conference (SCLC) and most visible leader in the Civil Rights Movement. He was the face of the battle against racial discrimination, and propelled several civil rights movements. In 1963, he was awarded the Nobel Peace Prize for his non-violent campaign against racism. The aforementioned lines were said by him in the spring of 1968, where he was sharing his views on the importance of remaining awake through a revolution and the dangers of neglecting something of such great importance. Source: <HERE >.

[2] George Bernard Shaw was an Irish comic dramatist, literary critic, and socialist propagandist, winner of the Nobel Prize for Literature in 1925. G.B. Shaw, through high comedy, continued to explore religious consciousness and to point out society’s complicity in its own evils. The aforementioned lines signify the conflict between man as spiritual creator and woman as guardian of the biological continuity of the human race showcased in his play, “Man and Superman” in 1903.

[3] (2018) 10 SCC 639.

[4] Louis Dembitz Brandeis was an American Lawyer who went on to become Associate Justice in the US Supreme Court from 1916 to 1939. He developed the modern jurisprudence of free speech and laid the basis for a constitutionally protected right to privacy. Source:  <HERE>.

[5] (2018) 10 SCC 639.

[6] Ibid.

[7] Ibid.

[8] Pruthvirajsinh Zala v. High Court of Gujarat2020 SCC OnLine Guj 1055.

[9] 103rd Report prepared by the Rajya Sabha Secretariat New Delhi in September 2020. The Report was prepared by the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, comprising eminent members of the Bar like Shri Bhupender Yadav, Mr Vivek K. Tankha, Mr P. Wilson and thirty other members of Parliament.

[10] (2018) 10 SCC 639.

[11] Id., p. 675.

[12]  (1981) 2 SCC 109, 114-15.

[13] AIR 1967 SC 1 : (1966) 3 SCR 744.

[14] (1975) 4 SCC 428.

[15] Id., p. 453.

[16] (1988) 4 SCC 592.

[17]  Id., p. 613.

[18] Areeb Uddin Ahmed v. Allahabad High Court, Public Interest Litigation (PIL) No. 865 of 2021.

[19] Nupur Thapliyal v. High Court of Madhya Pradesh., W.P. No. 9669 of 2021 (Principal Seat at Jabalpur)

[20] 2021 SCC OnLine SC 364.

[21] Ibid.

[22]

[23] (2018) 10 SCC 639.

[24] Ibid

Experts CornerSiddharth R Gupta

Publicity is the very soul of justice, it plays a vital role in the rule of law. Open justice is a safeguard against judicial arbitrariness or idiosyncrasy and maintains the confidence of the public in the administration of justice. Where there is no publicity, there is no justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the Judge himself whilst trying under trial.

Jeremy Bentham, Jurist[1]

—-

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to  found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

Lord Atkinson in Scott v. Scott[2]

                                                                           —-

What proved to be a groundbreaking verdict by the Supreme Court in 2018 in Swapnil Tripathi v. Supreme Court of India[3], it could translate into reality only recently with very few of the High Courts of the country following suit and starting real-time live streaming of proceedings with the Karnataka High Court being the latest entrant in the fray. Though the constitutional necessity of live streaming of court proceedings was pronounced in 2018, it was only in the later half of 2020, when Gujarat High Court pioneered in practice by starting live transmission in October 2020. As on 15-5-2021, the said YouTube channel live streaming the court proceedings of Chief Justice’s Court had been touching around 35 lakh views, with a whopping 60 thousand odd subscribers approx. This globally available channel has 100 (odd) videos available to be accessed anytime by anybody for its viewers.

 

In two parts of this article, we thus trace out the nuances associated with live screening of court proceedings; the sinking challenges and opportunities brimming with the possibilities of transforming the Indian justice dispensation system into an affordable, accountable, accessible and acceptable one for the citizens of the country. The article shall be staggered under the following heads to the make the whole read interesting and engaging.

 

Part I

  1. The Prelude – “Open Courts” and “Publicised Justice”
  2. Indian Context to “Open Courts”
  3. Statutory Canons recognising “Open Courts”
  4. Innovative Instances from Early 21st Century
  5. Swapnil Tripathi Judgment and its Trail in 3 Years
  6. Exceptions to Live Streaming and Visibility of Courts
  7. Video Conferencing Rules of Various High Courts
  8. Oral Proceedings and the Right to Report of Journalists
  9. The Epilogue

 

  1. The Prelude – “Open Courts” and “Publicised Justice”

Under the Indian Constitution, the courts, especially the constitutional courts like the High Court and the Supreme Court have an eminent role to play. The Indian Constitution was nurtured in the glory of common law ushered in by the British along with them, which had always followed the venerated practice of “open courts” and “publicised justice”.

 

 Common law has always treated court as a “seat of service” rather than as a “place of status” . In India neither the Civil Procedure Code, 1908, Criminal Procedure Code, 1973 nor for that matter General Clauses Act, 1897 defines the content of the term “court”. However, a profound research aimed at discovering its meaning leads one to the general glossary of the Legislative Department, Ministry of Law and Justice, defining “court” as a “place” where justice is administered. Section 3 of the Evidence Act, 1872 defines “court” to include all Judges, Magistrates and all such persons legally authorised to take evidence. Section 20 of the Penal Code, 1860 succinctly explains “court of justice” as – a Judge who under law is empowered to act judicially alone or a body of Judges to act judicially as a body, and when such Judge or collegium of Judges acts judicially.

 

The dictionary of the US Federal Judiciary elaborates “court” as a government entity authorised to resolve legal disputes, whilst Black’s Law Dictionary states it to mean a governmental body consisting of one or more Judges sitting to adjudicate disputes or a place where justice is judicially administered. It is, therefore, beyond any cavil of doubt that the lowest common denominator of all the definitions across the globe imply “court” as a government entity comprising Judges handling the administration of justice. Ergo “court” is a “seat of service” rather than a “place of status” or a position. To this “seat of service”are attached duties and obligations, much higher than other wings of the executive, obliging its incumbents to act judicially with a scintillating conscience for administering justice.

 

“Open court” had thus been the bedrock of the British system, wherein originally all trials were held “ostis apertis” i.e. with open doors and windows. The practice of “open court” or “open judicial proceedings” was established during the 17th century, when in 1612 AD, Lord Coke lauded the great principle that all causes must be heard, ordered and determined openly. An “open court” with a “transparent justice” has always been trusted to deter judicial arbitrariness idiosyncrasies in the delivery of justice, a problem which the judicial system of every developing country has to pass through to mature. “Open court” principle is supported for three reasons: firstly, it assists in the search for truth and is informative and educational for the public. Secondly, it enhances accountability and deters misconduct on those delivering justice. Thirdly, it has a therapeutic function offering a mental assurance that justice has been done. “Open justice” had its origins in England before the Norman conquest, when free men in the community participated in the public dispensation of justice.

 

2. Indian Context to “Open Courts”

In India, “open courts” with a “publicised justice” system came to be judicially acknowledged emphatically in Naresh Shridhar Mirajkar v. State of Maharashtra[4], where the Court was addressing the submissions of the journalists that they had a fundamental right to attend the proceedings of the Court under Articles 19(1)(a), (d) and (g). A nine-Judge Bench of the Supreme Court then underscored the efficacy of open trials/courts as a means for bolstering the legitimacy and public confidence in the society. Vide para 22, the Constitution Bench did not mince any words whilst observing that “open courts” subject the whole institution to a public scrutiny and gaze, acting as a potent check against judicial caprice or vagaries, infusing fairness, objectivity and impartiality in the overall administration of justice.

 

The tangible takeaways from the judgment of Mirajkar[5] were thus: “open courts” with a publicised judicial process act as a vital instrument of inspiring public confidence in the administration of justice; the soul of justice demands it to be vocal, visible and veritable: the aforesaid requirement, however must yield to necessity of restricting public access to the proceedings if so required in the special facts of any particular case.

 

The next stop for this avowed principle of “open courts” was after almost two decades in Olga Tellis v. Bombay Municipal Corpn.[6], wherein a Constitution Bench of the Supreme Court led by the then CJI late Justice Y.V. Chandrachud went on to say that dialogue with the person likely to be affected by the proceedings (or the final outcome of the same) meets the fundamental requirement of “justice must also be seen to be done”. The Court held that such a participative process of decision making and hearing exalts the stature of institution delivering justice. Quoting Justice Frankfurter, the Court stated that propriety and the moral authority of any conclusion largely depends on the mode by which it was reached. Never a better way has been devised for arriving at truth, than to give a person in jeopardy of a serious loss, an opportunity to participate in its decision-making process. Thus, in case of justice not only the ends are important, but also the means through which it is achieved or delivered are of equal importance, one of them being its due and adequate publicity.

 

In the long line of judgments, which joined the dots completing the picture subsequently reiterating the same principle are LIC v. Manubhai D. Shah[7], Mohd. Shahabuddin v. State of Bihar[8], through which the Supreme Court from time to time contributed its bit in affirming the lesser known saying that “courts exist primarily to provide justice to its citizens against the might of the State”. A tension between the court and the executive is always healthy for a vibrant democracy and therefore the discourse which goes on as a part of resolving this tension cannot be far removed from the lives of individual citizens whose livelihood depends on the decision-making executive.

 

Thus, much before their formal incorporation in the statutes or the Constitutions of the world, “open courts” and “publicised justice” had been pre-existing in the legal narrative. These principles have been cast in stone through judicial recognition in almost every decade of our legal history.

 

3. Statutory Canons Recognising “Open Courts”

“Open courts” as an imperative constitutional necessity has been embedded in the Indian Constitution vide Article 145(4), which reads that the judgments of the Supreme Court of India shall be delivered only in “open court”.

 

Article 145(4) of the Constitution of India speaks:

(4) No judgment shall be delivered by the Supreme Court save in open court, and no report shall be made under Article 143 save in accordance with an opinion also delivered in open court.

 

Somewhat similar expression of a “publicised justice” occurs under Order 18 Rule 4 CPC, 1908, which mandates that recording of evidence of witnesses in any civil proceeding to be administered orally only in “open court” in the presence, direction and under the superintendence of the Judge; Section 153-B CPC, 1908 in the same breath designates any place where a civil court is held for trying any suit (civil) shall be deemed to be an “open court”, where public shall have an access, subject to infrastructural convenience. The criminal laws of our country are not behind and Section 327 CrPC, 1973 also mandates the courts to be open, subject to the discretion of the Presiding Judge or the Magistrate.

 

Section 153-B CPC, 1908 speaks:

153-B. Place of trial to be deemed to be open court.—The place in which any civil court is held for the purpose of trying any suit shall be deemed to be an open court, to which the public generally may have access so far as the same can conveniently contain them:

 Provided that the Presiding Judge may, if he thinks fit, order at any stage of any inquiry into or trial of any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

 

Section 327 CrPC, 1973 speaks:

Court to be open.— (1) The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open court, to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the court.

(2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376-B, Section 376-C,  Section 376-D or Section 376-E of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the Presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court:

Provided further that an in-camera trial shall be conducted as far as practicable by a woman Judge or Magistrate.

(3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings except with the previous permission of the court:

Provided that the ban on printing or publication of trial proceedings in relation to an offence of rape may be lifted, subject to maintaining confidentiality of name and address of the parties.

 

If one intends to look at the international scenario, then there also the said norm has been firmly entrenched with international acceptance in the form of Article 6(1) of the European Convention on Human Rights, which provides as follows:

 

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

 

It would therefore not be out of place to mention that the Constitution-makers as also the Parliament itself has always believed that dispensation of justice must receive a comprehensive public attention, dialect and participation in the said exercise by the citizens for whom it exists. The courts in India not only interpret the law, but interpret it purposively and constructively to take the legislative intention forward to such an extent that it makes the working of such enactments and the machinery thereunder coherent and productive in the interests of its subjects.

 

4. Innovative Instances from Early 21st Century

Enthusiasm to ensure that justice is dispensed publicly has always been present in varying proportions amongst the Members of the Bench and there had been instances which displayed innovation and ingenuity of its novelty by the Judges concerned towards ensuring that what they do is so done under full public gaze. Some of the instances which I could discover from my tiny expanse of research can be quoted hereinbelow:

 

  1. As far back as in 2005 down south, the Hyderabad High Court (erstwhile Andhra Pradesh High Court) allowed the entry of television media with live video recording in the courtroom when special judicial assignments were being taken up in select few courts. However this initiative died down after receiving a lukewarm reception of successive Chief Justices of the High Court, who preferred sticking to the status quo than changing to demanding expectations of the organic society.
  1. Justice B.K. Somasekhara in an inimitable style of his own allowed the court hearings to go live, when he was conducting proceedings as a Head of the Judicial Commission inquiring into the land acquisition scam of construction of the Yeleru Canal laid between Visakhapatnam and East Godavari Districts. Not to forget, Justice Somasekhara was a sitting Judge when he was heading this inquiry in 1996. The video recordings cross-examining the erstwhile Ministers of Finance and other Cabinet Ministers of the State, especially those at the helm of the creamy portfolios became a subject of intense debate. The inquiry was constituted by the High Court in a spate of writ petitions, more than 100 in number alleging irregularities in payment of compensation. Initiative of Justice Somasekhara to ensure live transmission of the proceedings on national platforms like Doordarshan through the Ministry of Information and Broadcasting could not muster political support. Eventually all the birds of the same feather flock together and failed the next gen efforts of Justice Reddy.
  1. Through yet another off-the-cuff practice, Justice B. Subhashan Reddy as the Chairman of Andhra Pradesh Human Rights Commission allowed live telecast of his court proceedings in 2005 in cases involving human right infringements. To its viewers, it was a delight to have watched Justice B. Subhashan Reddy’s strict handling of the delinquents in these proceedings, especially government officers, when questions to them elicited squeamishly mumbled answers.
  1. In 2015, a Division Bench of Madras High Court headed by Justices S. Tamilvanan and C.T. Selvam also live streamed the court proceedings in the contempt case against Bar representatives Advocates Dharmaraj and A.K. Ramasamy. The duo were served with contempt notices for opposing the mandatory helmet ruling through a rally taken out by lawyers in Madurai. The live streaming was arranged through a large sized LED television for the general public.

 

Thus flame to be transparent and visible to the common man in the judicial process has always remained ignited in some of the incumbents of the high judicial offices, but it was only in Swapnil Tripathi[9]that for the first time all the flowers were garlanded into a comprehensive dicta by the Supreme Court. A judgment for all generations to come was thus handed over to the nation led by the then Chief Justice of India Justice Dipak Misra.

 

The discussion on the remaining heads shall be undertaken in the subsequent part of this article. As an incomplete discussion would have not done justice with the issue at hand, therefore the next part shall be completing the full round by providing insight into the Swapnil Tripathi[10] judgment and its trail of events. A bird’s eye view of the video conference rules framed by the various High Courts and the ills they are plagued by shall also be undertaken.

 


† Siddharth R. Gupta, Advocate practising at Madhya Pradesh High Court and Supreme Court of India.

†† Utkarsh Sharma, 4th year student at Unitedworld School of Law, Karnavati University, Gandhinagar, Gujarat.

 

[1] John Bowring (ed.), The Works of Jeremy Bentham, Vol. VI (London, 1843) 351–352. Also see, Garth Nettheim, The Principle of Open Justice (1984) 8 Tasmanian Law Review 25.

[2] 1913 AC 417, 463.

[3] (2018) 10 SCC 639.

[4]  AIR 1967 SC 1 : (1966) 3 SCR 744.

[5] Ibid.

[6] (1985) 3 SCC 545.

[7] (1992) 3 SCC 637.

[8](2010) 4 SCC 653.

[9] (2018) 10 SCC 639.

[10] Ibid.

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note] 

Introduction

The issue of Criminal Contempt keeps rolling on the discussion table before citizens. It was not long back when the question of contempt came in controversy after the Supreme Court initiated suo motu contempt proceeding against Senior Advocate, Prashant Bhushan. Recently, contempt proceedings against Stand-up Comedian, Kunal Kamra and Cartoonist, Rachita Taneja have once again brought the matter of contempt in limelight.

On 12 November 2020, Kamra had posted a series of tweets criticising the Supreme Court for granting interim bail to Republic TV Editor-in-Chief Arnab Goswami in a suicide abetment case. Not only Kamra’s tweets received mixed responses from  netizens but also a few people found it problematic to the extent that they were persuaded to seek consent of the Attorney-General for India, K.K. Venugopal for intitiating contempt proceedings against Kunal Kamra. While granting consent, the AG wrote a letter to the complainant where he specifically pointed out certain statements from Kamra’s tweets [[1]] — “honour has left the building (Supreme Court) long back” and “Supreme Court of the country is the most Supreme joke of the country”. The AG noted that apart from these comments, Kamra had also posted a picture of the Supreme Court dressed in saffron colour with the flag of the ruling party, the BJP, which, the AG opined is a gross insinuation against the entirety of the Supreme Court of India that the Supreme Court is not an independent and impartial institution and so too its Judges but on the other hand is a Court of the ruling party, the BJP, existing for the BJP’s benefit. All this in the AG’s opinion constitutes criminal contempt of court.

Constitutional and Statutory Provisions for Contempt

 Amongst all the fundamental rights guaranteed by Part III of Indian Constitution, Article 19(1)(a), i.e., freedom of speech and expression is the most sensitive one and is prone to controversy. If exercised negligently, without abiding by the limitations prescribed under Article 19(2), a person, on one hand can be booked for defamation and on the other, hangs the probability of prosecution for “Criminal Contempt”.

Article 129 of the Constitution, makes the Supreme Court “a court of record” and confers power to punish for contempt of itself. Whereas, Article 142 empowers the Court to provide punishment for contempt, subject to any other law made in this behalf by the Parliament. Similar powers have been vested in the High Court by the virtue of Article 215 which makes the High Court “a court of record”, implying that only Supreme Court and High Courts are empowered to adjudicate criminal contempt proceedings.

Section 10 of the Contempt of Courts Act, 1971 specifically empowers the High Courts to punish contempt of subordinate courts. Similarly, Section 15(2) says even in the case of criminal contempt of subordinate court, proceedings for contempt are to be initiated by the High Court on a reference made to it by the subordinate court or on a motion made by the Advocate-General* (or Law officer in cases of Union Territory). It is pertinent to mention here, High Court, for the purpose of the Contempt of Courts Act, 1971 would include the Court of Judicial Commissioner.[[2]]

Contempt of Courts Act, 1971

Objective

In India, contempt proceedings are governed by Contempt of Courts Act, 1971. Contrary to the obvious conception, the objective of the Act as mentioned in the Act is:

“…to define and limit the powers of certain courts in punishing contempts of courts and to regulate their procedure in relation thereto.”

The rationale behind this enactment can be best described by pronouncement of Justice Wilmot in Rex v. Almon[3]: 

“And whenever men’s allegiance to the law is so fundamentally shaken, it is the most fatal and most dangerous obstruction of justice and…calls out for a more rapid and immediate redress than any obstruction whatsoever, not for the sake of the Judges as private individuals but because they are the channels by which the King’s justice is conveyed to the people …”[[4]]

What is Criminal Contempt?

Section 2(c) defines criminal contempt in following manner:

” ‘Criminal Contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) of any matter or the doing of any other act whatsoever which─

(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”

Scandalising the Authority of Court

Scandalising in substance is an attack on individual Judges or the Court as a whole with or without referring to particular cases casting unwarranted and defamatory aspersions upon the character or the ability of the Judges. “Scandalising the Court” is a convenient way of describing a publication which, although it does not relate to any specific case either post or pending or any specific Judge, is a scurrilous attack on the judiciary as a whole which is calculated to undermine the authority of the Courts and public confidence in the administration of justice, Hari Singh Nagra v. Kapil Sibal(2010) 7 SCC 502

However, it is to be borne in mind that the authority of Court shall not be confused with judges as individuals. Where the contemptuous comment is made on the judge in his individual capacity and not as an officer of the Court, the same may amount to defamation but charge of contempt cannot be invoked against such actions.

Prejudicing due Course of Judicial Proceedings

It is incumbent upon courts of justice to preserve their proceedings from being misrepresented, for prejudicing the minds of the public against persons concerned as parties in causes before the cause is finally heard has pernicious consequences. Speeches or writings misrepresenting the proceedings of the Court or prejudicing the public for or against a party amounts to contempt. To make a speech intending to influence the result of a pending trial, whether civil or criminal is a grave contempt. The question is not so much of the intention of contemnor as whether it is calculated to interfere with the administration of justice, P.C. Sen, In re, (1969) 2 SCR 649

Though a fair criticism of judgment after the judgment is pronounced is permissible in law, however, making any statement or giving press interviews during the pendency of the litigation is not permissible. Therefore, no lawyer or litigant should either give an interview, talk to the press or make any statement with regard to pending litigation before any Court, Prashant Bhushan, In re, (2021) 3 SCC 160 : 2020 SCC OnLine SC 698

Obstructing Administration of Justice

There is no comprehensive definition of the expression “administration of justice”. But historically, and in the minds of the people, administration of justice is exclusively associated with the Courts of justice constitutionally established, Baradakanta Mishra v. High Court of Orissa, (1974) 1 SCC 374

The Court is entrusted with the power to commit for contempt of court, not to protect the dignity of the Court against insult or injury, but to protect and vindicate the right of the public so that the administration of justice is not perverted, prejudiced, obstructed or interfered with. Any deliberate interference with the discharge of such duties either in court or outside the court by attacking the presiding officers of the court, would amount to criminal contempt and the courts must take serious cognizance of such conduct, Delhi Judicial Services Assn. v. State of Gujarat, (1991) 4 SCC 406

Where is the Line?  

Kunal Kamra, in his defence, filed a 6-pages long affidavit and emphasised on not having any ill-intention to malign the judiciary, “the suggestion that my tweets could shake the foundations of the most powerful court in the world is an over-estimation of my abilities. … it (Supreme Court) should also trust the public not to form its opinions of the Court on the basis of few jokes on Twitter. The public’s faith in the judiciary is founded on the institution’s own actions, and not on any criticism or commentary about it.” While referring constitutional protection afforded to judiciary he further added, “I believe that constitutional offices-including judicial offices-know no protection from jokes.”

Section 13 of the Act postulates no punishment for contemptuous conduct in certain cases. As a general guideline, it provides for no punishment unless the court is satisfied that the contempt is of such a nature that “substantially interferes, or tends substantially to interfere with the due course of justice”.[[5]] This section is an attempt by the framers of the Act to demonstrate a line between criticism and contempt:

13. Contempts not punishable in certain cases.—Notwithstanding anything contained in any law for the time being in force,—

(a) no court shall impose a sentence under this Act for a contempt of court unless it is satisfied that the contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice;

(b) the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide.”

(emphasis supplied)

 

The offence of contempt is not absolute and act of contempt per se does not entail punishment (Exceptions—Sections 3 to 8).

“Exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly after addressing itself to the true effect of the contemptuous conduct,” Mrityunjoy Das v. Sayed Hasibur Rahaman(2001) 3 SCC 739

Defences Available

Innocent PublicationSection 3

      Section 3 shows that immunity attaches to certain statements or certain matter which may interfere or tend to interfere or obstruct or tend to obstruct the course of justice in connection with any civil or criminal proceedings pending at the time of the publication. However, if the persons so publishing had at the time of its publication no reasonable grounds for believing that the proceeding was pending, the publication is described by this section as “innocent”,   Prabhakar Laxman Mokashi v. Sadanand Trimbak Yardi, 1973 SCC OnLine Bom 79

Fair and Accurate Report of Judicial Proceeding – Section 4

Subject to the provisions contained in Section 7, a person shall not be guilty of contempt of court for publishing a fair and accurate report of a judicial proceeding or any stage thereof.

Section 7 refers to leakage of information whereas Section 4 refers to reporting of court proceedings. Leakage defeats very purpose of hearing in chambers or in camera, Sahara India Real Estate Corp. Ltd. v. SEBI, (2012) 10 SCC 603

Fair Criticism – Section 5

Kunal Kamra wrote in his defence, “…constitutional offices − including judicial offices − know no protection from jokes. I do not believe that any high authority, including judges, would find themselves unable to discharge their duties only on account of being the subject of satire or comedy.” What he was willing to imply by this defence was public accountability of judges.

It is the privileged right of the Indian citizen to believe what he considers to be true and to speak out his mind, though not, perhaps, always with the best of tastes; and speak, perhaps, with greatest courage than care for exactitude. Judiciary is not exempt from such criticism. But there is no justification to resort to this freedom and privilege to criticise the proceedings during their pendency by persons who are parities and participants. Sheela Barse v. Union of India, (1988) 4 SCC 226

Complaint against Presiding Officer – Section 6

A person shall not be guilty of contempt of court in respect of any statement made by him in good faith concerning the presiding officer of any subordinate court to—

(a) any other subordinate court, or

(b) the High Court, to which it is subordinate.

In addition to above mentioned defences, an accused can also seek defence of truth, apology and ignorance can serve as mitigating factors in some cases.

Truth as a Defence – Section 13

Section 13 of the Act enables the Court to permit justification by truth as a valid defence in any contempt proceedings if it satisfied that such a defence is in the public interest and the request for invoking the defence is bona fide. Truth should ordinarily be allowed as a defence unless the Court finds, that it is only a camouflage to escape the consequences of the deliberate attempt of scandalising the Court. However, for considering the truth as valid defence there is a twin requirement:

  • defence is in public interest, and
  • request for invoking the defence is bona fide, Prashant Bhushan, In re, (2021) 3 SCC 160 : 2020 SCC OnLine SC 698

Apology – Section 12(1), proviso

Proviso to Section 12(1) of the Act says that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the Court.

The apology tendered should impress the court to be genuine and sincere. If the court,

on being impressed of his genuineness, accepts the apology then it could be said that the contemnor has purged himself of the guilt. Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650

 Cognizance of Criminal Contempt  

Section 15 prescribes mode of cognizance in cases of contempt committed other than in the face of the Court:

“15.(1) In the case of a criminal contempt, the Supreme Court or the High Court may take action on its own motion or on a motion made by—

(a) the Advocate-General, or

(b) any other person, with the consent in writing of the Advocate-General,

* * *”

 Hence, if a private person intends to bring the proceedings of criminal contempt in motion, he must seek approval of the Advocate-General* to do so. However, in an event of denial by the AG to grant consent, the law does not leave one handicapped. In such an event, resort could be to approach the Court itself and urge for suo motu action.

This legal position was reaffirmed by Justice Arun Mishra in Prashant Bhushan, In re, (2021) 1 SCC 745:

“… as far as the suo motu petitions are concerned, there is no requirement for taking consent of anybody, including the learned Attorney General because the Court is exercising its inherent powers to issue a notice for contempt. It is equally well settled, that once the Court takes cognizance, the matter is purely between the Court and the contemnor. The only requirement is that the procedure followed is required to be just and fair and in accordance with the principles of natural justice. …”

 Notice to Contemnor – Section 17

 Every contemnor is entitled to be served with a personal notice unless the Court for reasons to be recorded directs otherwise. The notice shall be accompanied with copy of the motion as also copies of the affidavits in cases where proceedings commenced on a motion or in case of proceedings commenced on a reference by a subordinate court, by a copy of the reference.

Hearing to be by Benches – Section 18

Every case of criminal contempt shall be heard and determined by a Bench of not less than two judges. This, however, does not apply to the Court of Judicial Commissioner.

Limitation – Section 20

 No court shall initiate any proceedings of contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed.

Power to be Exercised with Caution

 Exercise of powers under the Contempt of Courts Act shall have to be rather cautious and use of it rather sparingly by the Court after addressing itself to the true effect of the contemptuous conduct. The Court must otherwise come to a conclusion that the conduct complained of tantamounts to obstruction of justice which if allowed, would even permeate in our society, Mrityunjoy Das v. Sayed Hasibur Rahaman(2001) 3 SCC 739

In an endeavour to prevent frequent and prejudiced use of power in disgust or anguish, Justice Krishna Iyer, in S. Mulgaokar, In re (1978) 3 SCC 339, laid down certain checks to be born in mind by the Court while exercising the power to punish its contempt. Considering, to be gentle is to be just and the quality of mercy is not strained, emphasis was on to draw up the objective line of action. These are:

  • Wise economy of the use of the contempt power by the Court.
  • The constitutional values of free criticism and judiciary must be harmonised and a happy balance must be struck between the two.
  • Difference between personal protection of a libelled Judge and obstruction of public justice must be clearly kept in mind.
  • Press should be given free play within responsible limits when its focus of critical attention is on the Court.
  • Judges should not be hypersensitive when distortions and criticisms overstep the limits but deflate such vulgar denunciations by dignified bearing.
  • Lastly, when the attack on Judge(s) is scurrilous or malicious beyond condonable limits, the strong arm of the law must strike a blow in the name of public interest and public justice.

† Editorial Assistant, EBC Publishing Pvt. Ltd.

[1] https://indianexpress.com/article/india/attorney-general-clears-contempt-proceedings-against-kunal-kamra-7049509/

* Ed.: For the purposes of Section 15 of the Contempt of Courts Act, 1971, the expression Advocate-General means:

“(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;

(c) in relation to the court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.” [Explanation to Section 15, Contempt of Courts Act, 1971]

[2] Section 2(d), Contempt of Courts Act, 1971

[3] (1965) Wilm 243

[4] Law Commission of India, 274th  Report, Review of the Contempt of Courts Act, 1971, April 2018

[5]  Law Commission of India, 274th  Report, Review of the Contempt of Courts Act, 1971, April 2018

* Ed.: For the purposes of Section 15 of the Contempt of Courts Act, 1971, the expression Advocate-General means:

“(a) in relation to the Supreme Court, the Attorney-General or the Solicitor-General;

(b) in relation to the High Court, the Advocate-General of the State or any of the States for which the High Court has been established;

(c) in relation to the court of a Judicial Commissioner, such Law Officer as the Central Government may, by notification in the Official Gazette, specify in this behalf.” [Explanation to Section 15, Contempt of Courts Act, 1971]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., addressed a concern wherein it was stated that the NCLAT and NCLT ought to have an open link where parties who are interested can join the proceedings.

The instant petition was filed to seek the provision of open or virtual links for attending hearings in the National Company Law Tribunal and National Company Law Appellate Tribunal.

High Court’s opinion on perusal of the affidavits filed on behalf of the NCLT and NCLAT was that the forums like NCLT and NCLAT, which have a high quantum of work, ought to be permitted to regulate their own procedure so long as the same is not arbitrary.

In virtual hearings, there is a possibility of enormous disturbance if there is no regulated entry.

NCLAT and NCLT submitted that whenever links are required, there are separate ‘active’ and ‘viewing’ links shared with the parties. They also added their concern that lawyers mention matters which may not have been listed on the particular date causing enormous disruption in the hearings if open links would be provided.

Hence in view of the facts and circumstances, Bench directed NCLT and NCLAT to regulate their own procedure for virtual hearing platforms so long as it is ensured that if any particular party requests for a link, the same would be considered in a fair, transparent and non-arbitrary manner.

To the extent possible, parties would be permitted to view the proceedings.

 While concluding, High Court held that since virtual hearings are a measure adopted to ensure that Tribunals and Courts are functioning during the COVID-19 pandemic, the Petitioner, if he wishes to join any particular hearing, may write an e-mail at least 24 hours in advance to the Deputy Registrar of the NCLT and NCLAT. The same shall be considered in accordance with the NCLT and NCLAT’s own procedure, in a fair, transparent and non-arbitrary manner. [Deepak Khosla v. NCLAT, 2021 SCC OnLine Del 1214, decided on 08-03-2021]


Advocates who appeared before the Court:

For the Petitioner: Deepak Khosla, Advocate

For the Respondents: Chetan Sharma, ASG with Dev P. Bhardwaj, CGSC, Amit Gupta, Vinay Yadav, Sahaj Garg, Akshay Gadeock &  R.V. Prabhat, Advocates for UOI.

COVID 19Op EdsOP. ED.

Introduction

This article is penned especially for advocates, judges, litigants and more particularly the ministerial staff in the courts who are even without setting of Covid-19, under a lot of mental stress and require spontaneous rejuvenation. The word “health” partakes within itself physical, mental and social well-being and, therefore, this article is for seeing that we remain fit once the courts start functioning and we are out of our mental psychosis.

The setting of 2020 came with all goodnesses but by the middle of the third month i.e. spring, we felt that good relationship, sense of belonging, opportunity to physically be active all were shattered bringing in a psychological weakness in a person. Like, come September we Indians welcome seasons. The first six months of the English calendar brings various festivities.

We also started seeing what can be said as few socio-legal disturbances, namely, the families have started having mental disorders due to the pandemic as well as the lockdown and it is in this background that I am penning this article though many have given their thoughts and have uploaded many videos and sermons but we have to move ahead with all the limitations which we have.

The six months which have bygone have brought about a lot of mental stress, have brought about psychological stress. It is for our getting back on track after the lockdown may get over that these few tips would be useful to the legal fraternity by legal fraternity the undersigned also address the staff of courts, who are in a lot of stress these days.

The international data goes to show that danger of these mysterious viral diseases is still there. We need to adopt social distancing measures, here what I mean by social distancing is physical distancing so that level of risk would be much less and we should not be complacent if we are in the age group of 20-30.

If we have serious medical conditions, we should try to develop what I call rejuvenation so that psychologically we would be much better placed. The fear should not deter us and we should take preventive action every day. The World Health Organisation site can be visited as the trends go to show that fear, worry and stress are perceived and become real threats. These would change our daily life patterns.

“The need for ‘spontaneous’ rejuvenation of physical and mental well-being for lawyers and judges. A need in the modern-day scenario” was an article which the undersigned penned before 13 years and while passing through these trying times it is felt the same to be apt even after 13 years of penning the same.

I do not wish to be guilty of new rules of self-plagiarism as this article was penned by me before one decade for an in house journal Nyaypath published by Gujarat State Legal Services Authority.

It is now with great pain that I am forced to again recast this article after the onslaught of the pandemic, and sad demise of my old colleague Satyen not due to COVID but because of ill health in mysterious circumstances.

Like, come September we Indians welcome seasons. The first six months of the English calendar brings various festivities. The festivities of various communities. The coming of spring is also celebrated as bringing with it several festivals.

As said by Richard Carlson in his famous book.

As said by Richard Carlson in his famous book. A powerful and positive personality is necessary for enjoying our profession by being enthusiastic, lively and remaining and having confidence in ourselves. Which we are tending to loose, the reason is obvious the author does not wish to delve deep into reasons but wants the reader to benefit and bounce back mentally, physically and psychologically during these trying times.

The human body is the most complex machine ever built and it is one of the most familiar machines despite that most of us take our body far too much for granted. It is only when something goes wrong with we think of it. We fail to appreciate our own magnificence. The body is like a big city having dozens of power stations, sophisticated communications setup, import raw materials, manufactures goods. We operate a garbage deleting system. These systems are available from the day a person is born. It is important to know that the body is made up of several cells. The invisible muscle cells keep us going. This acts as gate keepers and decides which matter should be admitted and which should be disposed of at controls.

            If nothing went wrong with the body as narrated above, we often neglect it, and therefore, this article is to remind us the neglect of the body under the guise of “I have no time” or “I am in tremendous pressure of work today” and at the end of the day “I feel very tired”. The simple tips can rejuvenate and revitalise the body and the mind and give up the boredom.

Mental well-being is a part of the overall well-being of a human being. It is said that a healthy body will breed a healthy mind. To attain a healthy mind, it is very necessary to attain a healthy body. It would be seen that out of 100 at least 50% of judges suffer from some physical ailment. The reason/answer is very spontaneous – “my working conditions”. “I have a lot of pendency of cases. Where do I have time to spare for recreation or exercise?” It is time to introspect for whom are we working so hard? The answer would be for our family. In a healthy body lives a healthy mind, likewise, if the family head is healthy then only will he be able to provide strong support to his family otherwise the family will have to constantly worry for him. It is an admitted position that judges and lawyers constantly keep their brain engaged in various thoughts i.e. reading for preparing the plaint or reply, preparing to write the judgment, checking of administrative files.

20 minutes in a day for ourselves can we not spare? The answer would be impossible to spare. This is what I would call a negative mindset with which we are pre-occupied meaning thereby “how”, can I waste my time, Sirs, this is not waste of time but is a rare kind of investment. These “40” minutes need not be continuous at one sitting. They can be spread over “5” minutes at “wake up” time, “5” at just before you take tea. “5” just before court, the answer would be I have a lot of work instead of this thinking, practice devoting of 10 minutes to yourself. How? By keeping eyes closed and letting positive thoughts to come to your mind and body. If you think positive, the mindset would enable the positiveness to visit you and see the miracle in being on the dais. It is always the thoughts that determine your attitude for the day.

            It is often said by the entire fraternity that “I don’t have time” but everybody craves peace and mental well-being and that is why from the time of the Britishers, we observe vacation which is in a way physical form of relaxation. Physical relaxation is an escape from tension, but it would not be the solution for mental relaxation. Mental relaxation is tasting very essence of peace of mind. Even if we introspect, we would feel trying to extract peace from the world around us. Physical relaxation can be said to be an escape from tension but it is not a solution by itself. The solution to it would be when a mental connection or union is achieved through some kind of remembrance when the mind is focused on only mental peace. The same can be said to be “Yoga”.

Yoga is nothing else but the ultimate attainment of peace of mind. The word “Yoga” is derived from the Sanskrit root “Yuj” which means to unit, join, harness, contact or connect. It is the fusion of a body with a disciplined mind for the purpose of spiritual development and this gives peace of mind. It is not necessary that this exercise can be performed only in isolation or by taking out a separate time. You can do it even while performing your routine work. Say a simple example would be the rejuvenation of your eyes by sprinkling water during the recess which would give you relaxation. It is even replied that relaxation is to be planned so as to do it later which can be done on vacation in an isolated place or when you get everything done. This is according to me is not the right answer.

Relaxation can be attained at any place at any time as suggested above even while preparing for a case you can relax for five minutes by closing eyes and sitting in silence. Daily twenty minutes of this kind of relaxation exercise would definitely rejuvenate mental and physical well-being. Meditation will make you calm with the strength to deal with any kind of stress which would need only a few moments of self-introspection during day time. The third powerful aspect for refreshing a person to make mind calm is thought, which is not physical energy, which can influence soul and also matter of body. Thought ― on a limited scale, emotions, desires and moods, would generate a field around the body and soul which is like electric field which would develop the need to have a positive mindset which would create a positive atmosphere around and such atmosphere can be said as “atma-sphere”. Thus prevailing modes with meditation, yoga and/or some physical exercise during the 24 hours cycle would keep you healthy, relax and energetic to do the work up to end and to overcome the stress which we would be facing. It also enlightened the power which would create power of thought, imagination, concentration, will-power and attitudinal change. It is wrongly understood that yoga means doing asnas or only physical exercise, that is not so, that is only a form of yoga. Yoga is not a religion. I would like to end this article with the wording of none other than His Lordship Justice V.R. Krishna Iyer as written by him in his book “Off the Bench”:

“The Upanishads are instinct with a spirit of inquiry, of mental adventure, of a passion for finding out the truth about things. The search of this truth is, of course, not by the objective methods of modern science, yet there is an element of the scientific method in the approach. No dogma is allowed to come in the way.

            The aforesaid is now supplemented with the passage of these 13 years which have made life more comfortable with equipment but we are today also facing the same mindset. The difference is these days we have time to devote after gadgets like mobile phones, laptop and other games for amusement but we do not have time for rejuvenating ourselves with the eclipse of Covid-19. We are once again required to rethink as to what should be our primary aim during this pandemic and post-pandemic. As human beings we are undergoing huge stress not only mentally but physically also. The crisis has brought about various issues which can be said to be ceaseless. The media today increases our stress level which in turn disturbs all our life patterns. The mental well-being, physical well-being and social well-being is the need of the day. Before 2020, India had not got a psychosocial toll-free helpline but now it has been started by the National Institute of Mental Health and Neurosciences with the Ministry of Health and Family Welfare, refer to “health and well-being during Covid-19 Harvard T.H. Chan School of Public Health.

            We have seen that moratorium are asked due to the lockdown scenario. Individuals and the families are on the brink of mental break down which leads to physical break down also.

            I would not tax the reader with huge sermons but would request my colleagues to follow a good diet regime coupled with what I would call mental well-being to come out of hopelessness, helplessness and we need to train ourselves what is known as mental well-being and follow the strategy so that psychological break down and suicidal tendencies are properly dealt with. Due to lockdown we need to adopt e-learning. We will have to manage our expectations and manage our stress threshold. I would suggest that make routine of your best companion and/or your friend. Hereby, the term “friend” means, faithful, revered, intimate, everlasting, never forsaking and dear. We will have to maintain connection by way of virtual forum.

            I would request each to be mindful and go for regular meditation. Hereby the term “meditation” means not only prayer but to concentrate and make our mind calm so that when we sit to work it give us a nice clinical recession to do our work. I am sure that we need to be mentally and physically well-equipped for the time to come. Mental health would be several family problems also. Here a question to be asked from me that we do not have proper health regime as there is a lockdown of gyms and walking track are also lockdown. Here I am reminded of my maternal uncle who used to stay in Bombay and his house comprised of one room which was partitioned into his kitchen and his bedroom. He used to do his morning exercise for one hour in that small closet and he continued his exercise till recent times. Covid-19 has taught of many lesson. One of them is to maintain yourself in whatever you have.

            The regulations like home confinement should not result in further mental or psychological stress and it is this which has to be avoided and for which we may devote our time for well-being.

            During this pandemic, the suicidal tendencies have also increased and, therefore, emotional well-being will have to be inculcated. An article by Dr Anil Kakunje may also be referred to along with the other websites which are for getting back for mental health and well-being for my brethren and the people at large.

            Thus the undersigned would sum up with a message that we should maintain the inner harmony of an individual vis-à-vis his social well-being. During this pandemic, there may be distancing but the distancing should be not so grave that the patient feels that he is socially boycotted which would in turn cause psychological depression in the entire family and even if Covid-19 does not strike us the after-effect would be so grave that we would be psychologically, physically and mentally we would be losing both health and wealth which would not be good for an individual, family and the society.

            I would like to quote Richard Bach who has always motivated me by his book  Illusions: The Adventures of a Reluctant Messiah wherein he highlights one aspect I quote “here is a test to find whether your mission on earth is finished: if you are alive, it isn’t — illusions”.

            We will have to rejuvenate our respiratory system as both Covid-19 and H1N1 influenza damages our respiratory system and for that the best is as suggested above.

            I would end this article by quoting Sri Sri Ravi Shankar — “We don’t need an excuse to celebrate life”.


Judge, Allahabad High Court.

References:- While writing the article, I have extensively read the below-mentioned books and taken guidance from them while preparing this article.

  1. “Don’t Sweat The Small Stuff and its’ all small stuff”.
  2. Know Your Body, II Edition, A Reader’s Digest Guide, RDI Print and Publishing Pvt. Ltd.
  3. New Beginnings; Brahma Kumaris Ishwariya Vishwa Vidyalaya.
  4. Off the Bench, by Justice V.R. Krishna Iyer.
  5. The Speaking Tree- Times of India.
  6. Agony and Ecstasy of A Teenager by Abhisst Thaker
  7. How to Develop a Powerful and Positive Personality by Venkata Iyer
  8. Illusions: The Adventures of a Reluctant Messiah by Richard Bach.
  9. https://www.who.int/teams/mental-health-and-substance-use/covid-19
  10. https://www.nhs.uk/conditions/stress-anxiety-depression/
Hot Off The PressNews

Supreme Court: The Court, today, is likely to pronounce its judgment on a plea that seeks to ban lawmakers from practising as advocates. A Bench of CJ Dipak Misra and A.M. Khanwilkar and Dr D.Y. Chandrachud, JJ. will deliver the verdict.

On July 9, the CJI-led three-Judge bench reserved its order on a plea seeking a ban on legislators practising as advocates. The Public Interest Litigation was filed by Ashwini Kumar Upadhyay, an office-bearer of the Bhartiya Janta Party. He argued that the Bar Council of India debars salaried employees from practising as advocates, and as lawmakers draw a salary from the public exchequer, the bar is applicable to them. The petitioner contended that while a public servant cannot practice as an advocate, legislators are practising in various courts which was a violation of Article 14 of the Constitution, among others.

The petitioner, in his plea, claimed that the parliamentarians and legislators, practising as lawyers, posed a conflict of interest and violated the provisions of the Advocates Act and the Bar Council of India Rules. Furthermore, such legislators take a fee from litigants and salary from the public exchequer, which is professional misconduct.

Attorney General K.K. Venugopal, however, sought dismissal of the PIL. During the hearing, the Court was of the view that the Government was not a master, and thus the principle element, i.e. master-servant relationship, which employment postulates is missing in the case of a legislator.

Hot Off The PressNews

Supreme Court: The 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ asked chief justices or acting chief justices of all high courts to set up anti-sexual harassment committees in courts across the country within two months in accordance with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The Court was hearing a petition filed by a practising woman advocate who alleged that she had been assaulted by some lawyers observing a strike at the Tis Hazari district court complex. Asking the crime branch of Delhi Police to investigate the cross complaints filed by the lawyers, the Bench asked the woman lawyer and the Bar leaders to amicably settle their disputes and directed that advocates from both sides should not be arrested in connection with the two cross FIRs filed by them against each other.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires every workplace to set up committees to probe sexual harassment complaints.

Source: PTI

Case BriefsSupreme Court

Supreme Court: Stating that the High Courts cannot encroach upon the fields that are under the exclusive domain of legislature, the Court said that there cannot be general comments on the investigation or for that matter, issuance of host of directions for constituting separate specialized cadre managed by officials or to require an affidavit to be filed whether sanctioned strength of police is adequate or not to maintain law and order or involvement of judicial officers or directions in the like manner.

In the present case, a writ of mandamous commanding the competent authorities to take necessary action against the respondent was filed before the Allahabad High Court in relation to alleged fraud in opening bank account by forging signature for obtaining retail licence for liquor shop for which eligibility conditions is that licensee and his family members must possess good moral character and have no criminal background, the High Court had adverted to the methods of investigation and expressed the view that no attempt was made by the investigating officer to find out the genuineness of signature from the hand-writing expert and had further observed that it depicts a very sorry state of affairs of maintenance of law and order in the State and paints a grim picture in which State is functioning, ignoring one of the most important aspects of administration, i.e., public safety, security and maintenance of law and order.

The bench of Dipak Misra and Amitava Roy, JJ noted that the High Court has crossed the boundaries of the controversy that was before it. The courts are required to exercise the power of judicial review regard being had to the controversy before it. There may be a laudable object in the mind but it must flow from the facts before it or there has to be a specific litigation before it.  It was further explained that a Judge should not perceive a situation in a generalised manner. He ought not to wear a pair of spectacles so that he can see what he intends to see. There has to be a set of facts to express an opinion and that too, within the parameters of law. A court cannot take steps for framing a policy.

Hence, it was held that the directions issued by the High Court and the queries made by it related to various spheres which, we are constrained to think, the High Court should not have gone into. It had a very limited lis before it. The directions may definitely show some anxiety on the part of the learned Judges, but it is to be remembered that directions are not issued solely out of concern. They have to be founded on certain legally justifiable principles that have roots in the laws of the country. [State of Uttar Pradesh v. Subhash Chandra Jaiswal, 2016 SCC OnLine SC 1434, decided on 29.11.2016]