Gujarat High Court
Khemchand Rajaram Koshti vs Yatin Narendra Oza & 2 on 29 April, 2016
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, B.N. Karia
R/CR.MA/10077/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CONTEMPT OF COURT) NO. 10077
of 2016
[On note for speaking to minutes of order dated 27/04/2016 in
R/CR.MA/10077/2016 ]
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KHEMCHAND RAJARAM KOSHTI....Applicant
Versus
YATIN NARENDRA OZA & 2....Respondents
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Appearance:
MR NITIN K MEHTA, ADVOCATE for the Applicant
DS AFF.NOT FILED (N) for the Respondents No. 1 , 3
PUBLIC PROSECUTOR for the Respondent No. 2
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CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 29/04/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) There was a request made in the morning for urgent circulation of this Speaking to Minute on account of typographical error in recording the submission of learned Advocate General. Accordingly, permission was granted for circulation of the matter today itself.
Heard learned Advocate General and learned Additional Advocate General. It was submitted that on account of typographical error occurred, the recording in para-6, is as under:
"........ They submitted that the language employed in the Page 1 of 2 HC-NIC Page 1 of 15 Created On Sat Apr 30 01:38:39 IST 2016 1 of 15 R/CR.MA/10077/2016 ORDER letter and resolution sought to be discussed and passed, are contemptuous if examined in light of the decision of the Supreme Court cited hereinabove in case of C. Ravinchandra Iyer. (supra)........"
which should be read as under:
"........ They submitted that the language employed in the letter and resolution sought to be discussed and passed, if covered by the decision, may be contemptuous if examined in light of the decision of the Supreme Court cited hereinabove in case of C. Ravinchandra Iyer. (supra)........"
Accordingly, the subsequent paragraph be substituted in place of earlier paragraph.
Speaking to minute is disposed of accordingly.
(S.R.BRAHMBHATT, J.) (B.N. KARIA, J.) pallav Page 2 of 2 HC-NIC Page 2 of 15 Created On Sat Apr 30 01:38:39 IST 2016 2 of 15 R/CR.MA/10077/2016 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR CONTEMPT OF COURT) NO. 10077 of 2016 ================================================================ KHEMCHAND RAJARAM KOSHTI....Applicant Versus YATIN NARENDRA OZA & 1....Respondents =============================================================== Appearance:
MR BHARGAV BHATT WITH MR NITIN K MEHTA, ADVOCATE for the Applicant MR KAMAL TRIVEDI, AG WITH MR PRAKASH JANI, AAG WITH MR MANAN MEHTA APP for the Respondent No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE B.N. KARIA Date : 27/04/2016 ORAL ORDER (PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Draft amendment is allowed. The same be carried out forthwith.
1. Heard learned advocate for the applicant.
2. Learned advocate appearing for applicant requested this Court at 2-30 PM for permission to circulate this mater today itself as he pleaded that the respondent no.1 is not only circulating the material but holds and calls the meetings of the association for discussing the scandalizing letter which Page 1 of 13 HC-NIC Page 3 of 15 Created On Sat Apr 30 01:38:39 IST 2016 3 of 15 R/CR.MA/10077/2016 ORDER tarnishes the image of Court and judiciary. Hence, it was urged the same is required to be restricted immediately.
3. In view of this, the Court granted permission and matter was received in the Court after it being ready only at 5-00 PM and it was requested to take up the matter in chamber as it was pertaining to sitting Judge of this Court and allegations are made against him. Accordingly, we granted permission and heard the matter.
4. The applicant, who happened to be the practicing Advocate has taken out this application, relevant paragraphs of same are reproduced herebelow:
"3. In one of the communication by the opponent which he has consciously circulated in the Bar reads, "that the two judges named above bear true faith and allegiance to the constitution of India and the laws instead thereof their faith and allegiance is mortgaged at 11, Akbvar road, New Delhi and 7 Race Course road, New Delhi... Even to a lay man much less the lawyers there definitely exists a feeling that, from the day Chief Justice Dharmadhikari left Gujarat High Court as his elevation as a Supreme Court Judge till the date Justice Mukhopodhya took over, as the Chief Justice of Gujarat High Court, the High Court was never considered in people's mind as the premier automatious and independent institution but was considered to be the High Court of Government of Gujarat, and was viewed as a subordinate secretariat of the State.
4. Aggravating the contempt, the Respondent in his capacity of the president of the bar, despite the serious objection by the majority of the members, present and voting, has declared, the voting by secret ballot as to whether his unilateral action against the institution should be supported or not. In pursuance of the unilateral decision of the Respondent No.1 Page 2 of 13 HC-NIC Page 4 of 15 Created On Sat Apr 30 01:38:39 IST 2016 4 of 15 R/CR.MA/10077/2016 ORDER presently the voting by secret ballot is being conducted by the persons appointed the Respondent. The same is required immediately to be injuncted to maintain the sanctity and dignity of this Hon'ble Court. Copies of the letters and/or communications by the Respondent is annexed herewith and marked as Annexure "A".
5. The acts of the Respondent have scandalized/scandalizes, prejudices and has lowered the authority of High Court and interfered with an obstructed the administration of justice. Therefore, the present application is required to be preferred before this Hon'ble Court.
6. The Petitioner has sought written consent of the advocate general vide communication on 27/4/2016, however the same is under consideration. A copy of letter dated 27.04.2016 is annexed herewith and marked as Annexure - B to this application."
5. Learned advocate for the applicant, in support of his submission, relied on the decision in case of C. Ravichandran Iyer Vs. Justice A.M. Bhattacharjee and ors, reported in 1995 (2) GLH 775, relevant paragraphs reads as under:
"Para 9-: The learned Attorney General contended that any resolution passed by any Bar Association tantamounts to scandalising the court entailing contempt of the court. It cannot coerce the Judge to resign. The pressure brought by the Chief Justice of India upon the Judge would be constitutional but it should be left to the Chief Justice of India to impress upon the erring Judge to correct his conduct. This procedure would yield salutary effect. The Chief Justice of India would adopt such procedure as is appropriate to the situation. He cited the advice tendered by Lord Chancellor of England to Lord Denning, when the latter was involved in the controversy over his writing on the jury trial and the Page 3 of 13 HC-NIC Page 5 of 15 Created On Sat Apr 30 01:38:39 IST 2016 5 of 15 R/CR.MA/10077/2016 ORDER composition of the black members of the jury, to demit the office, which he did in grace.
Para 10-: The diverse contentions give rise to the question whether any Bar Council or Bar Association has the right to pass resolution against the conduct of a Judge perceived to have committed misbehaviour and, if so, what is its effect on independence of the judiciary. With a view to appreciate the contentions in their proper perspective, it is necessary to have at the back of our mind the importance of the independence of the judiciary. In a democracy governed by rule of law under written Constitution, judiciary is sentinel on the qui vive to protect the fundamental rights and to poise even scales of justice between the citizens and the State or the States inter se. Rule of law and judicial review are basic features of the Constitution. As its integral constitutional structure, independence of the judiciary is an essential attribute of rule of law. In S.P. Gupta vs. Union of India [(1981) Supp. SCC 87] in paragraph 27, this Court held that if there is one principle which runs through the entire fabric of the Constitution it is the principle of the rule of law, and under the Constitution it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. Judicial review is one of the most potent weapons in the armoury of law. The judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse of power by the executive. It is, therefore, absolutely essential that the judiciary must be free from executive pressure or influence which has been secured by making elaborate provisions in the Constitution with details. The independence of judiciary is not limited only to the independence from the executive pressure or influence; it is a wider concept which takes within its sweep independence from any other pressure and Page 4 of 13 HC-NIC Page 6 of 15 Created On Sat Apr 30 01:38:39 IST 2016 6 of 15 R/CR.MA/10077/2016 ORDER prejudices. It has many dimensions, viz., fearlessness of other power centers, economic or political, and freedom from prejudices acquired and nourished by the class to which the judges belong.
Para-26:- Bad conduct or bad behaviour of a Judge, therefore, needs correction to prevent erosion of public confidence in the efficacy of judicial process or dignity of the institution or credibility to the judicial office held by the obstinate Judge. When the Judge cannot be removed by impeachment process for such conduct but generates widespread feeling of dissatisfaction among the general public, the question would be who would stamp out the rot and judge the Judge or who would impress upon the Judge either to desist from repetition or to demit the office in grace? Who would be the appropriate authority? Who would be the principal mover in that behalf? The hiatus between bad behaviour and impeachable misbehaviour needs to be filled in to stem erosion of public confidence in the efficacy of judicial process. Whether the Bar of that Court has any role to play either in an attempt to correct the perceived fallen standard or is entitled to make a demand by a resolution or a group action to pressurize the Judge to resign his office as a Judge? The resolution to these question involves delicate but pragmatic approach to the questions of constitutional law.
Para-27:- The Advocates Act, 1961 gave autonomy to a Bar Council of a State or Bar Council of India and Section 6(1) empowers them to make such action deemed necessary to set their house in order, to prevent fall in professional conduct and to punish the incorrigible as not befitting to the noble profession apart from admission of the advocates on its roll. Section 6(1)(c) and rules made in that behalf, Sections 9, 35, 36, 36B and 37 enjoin it to entertain and determine cases of misconduct against advocates on its roll. The members of the judiciary are drawn primarily and invariably from the Bar at different levels. The high moral, ethical and professional standards among the members of the Bar are pre-conditions even for high ethical Page 5 of 13 HC-NIC Page 7 of 15 Created On Sat Apr 30 01:38:39 IST 2016 7 of 15 R/CR.MA/10077/2016 ORDER standard of the Bench. Degeneration thereof inevitably has its eruption and tends to reflect the other side of the coin. The Bar Council, therefore, is enjoined by the Advocates Act to maintain high moral, ethical and professional standards, which of late is far from satisfactory. Their power under the Act ends thereat and extends no further. Article 121 of the Constitution prohibits discussion by the members of the Parliament of the conduct of any Judge of the Supreme Court or of High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as provided under Article 124(4) and (5) and in the manner laid down under the Act, the Rules and the rules of business of the Parliament consistent therewith. By necessary implication, no other forum or fora or platform is [@ page 771] available for discussion of the conduct of a Judge in the discharge of his duties as a Judge of the Supreme Court or the High Court, much less a Bar Council or group of practising advocates. They are prohibited to discuss the conduct of a Judge in the discharge of his duties or to pass any resolution in that behalf.
Para-28:- Section 2 (c) of the Contempt of Courts Act, 1971, defines "criminal contempt" to mean publication whether by words spoken or written, signs, visible representations or otherwise of any matter or the doing of any act whatsoever which scandalises or tends to scandalise, lower or tends to lower the authority of any court or prejudices or interferes or tends to interfere with the due course of any judicial proceedings, or interferes or tends to interfere with or obstructs or tends to obstruct the administration of justice in any other manner.
Para 29:- In Halsbury's Laws of England [4th Ed.] Volume 9 in para 27 at page 21, it is stated that scandalising the court would mean any act done or writing published which is calculated to bring a court or a Judge into contempt, or to lower his authority, or to interfere with the due course of justice or the lawful process of the court. Scurrilous abuse of a Judge or court, or attacks on the personal character of a Judge, are Page 6 of 13 HC-NIC Page 8 of 15 Created On Sat Apr 30 01:38:39 IST 2016 8 of 15 R/CR.MA/10077/2016 ORDER punishable contempts. Punishment is inflicted, not for the purpose of protecting either the court as a whole or the individual Judges of the court from repetition of the attack, but for protecting the public, and especially those who either voluntarily or by compulsion are subject to the jurisdiction of the court, from the mischief they will incur if the authority of the tribunal is undermined or impaired. In consequence, the court has regarded with particular seriousness allegations of partiality or bias on the part of a Judge or a court. Criticism of a Judge's conduct or of the conduct of a court even if strongly worded, is, however, not contempt, provided that the criticism is fair, temperate and made in good faith and is not directed to the personal character of a Judge or to the impartiality of a Judge or court.
Para-30:- In Oswald's Contempt of Court [3rd Edn.] 1993 at page 50 it is stated that libel upon courts is made contempt "to keep a blaze of glory around them, and to deter people from attempting to render them contemptible in the eyes of the public.... A libel upon a court is a reflection upon the King, and telling the people that the administration of justice is in week or corrupt hands, that the fountain of justice itself is tainted, and consequently that judgments which stream out of that fountain must be impure and contaminated". A libel upon a Judge in his judicial capacity is a contempt, whether it concerns what he did in court, or what he did judicially out of it. At page 91, it is stated that all publications which offend against the dignity of the court, or are calculated to prejudice the course of justice, will constitute contempt. One of the natures of offences is scandalising the courts. In Contempt of Court [2nd Edn.] by C.J. Millar at page 366, Lord Diplock is quoted from Chokolingo v. AG of Trinidaad and Tobago [(1981) 1 All ER 244 at 248], who spoke for the Judicial Committee summarising the position thus: "'Scandalising the court' is a convenient way of describing a publication which, although it does not relate to any specific case either past or pending or any specific Judge, is a scurrilous attack on the judiciary as a whole, which is calculated to Page 7 of 13 HC-NIC Page 9 of 15 Created On Sat Apr 30 01:38:39 IST 2016 9 of 15 R/CR.MA/10077/2016 ORDER undermine the authority of the courts and public confidence in the administration of justice." In Borrie and Lowe's Law of Contempt [2nd Edn.] at page 226 it is stated that the necessity for this branch of contempt lies in the idea that without well-regulated laws a civilised community cannot survive. It is therefore thought important to maintain the respect and dignity of the court and its officers, whose task it is to uphold and enforce the law, because without such respect, public faith in the administration of justice would be undermined and the law itself would fall into disrepute. Even in the latest Report on Contempt of Court by Phillimore Committee to revise the penal enforcement of contempt, adverting to Lord Atkin's dictum that courts are satisfied to leave to public opinion attacks or comments derogatory or scandalous to them, in paragraph 162, the Committee had stated that at one stage "we considered whether such conduct should be subject to penal sanctions at all. It was argued that any judge who was attacked would have the protection of the law of defamation, and that no further protection is necessary. We have concluded, however, that some restraints are still required, for two reasons. First, this branch of the law of contempt is concerned with the protection of the administration of justice, and especially the preservation of public confidence in its honesty and impartiality; it is only incidentally, if at all, concerned with the personal reputations of Judges. Moreover, some damaging attacks, for example upon an unspecified group of judges, may not be capable of being made the subject of libel proceedings at all. Secondly, Judges commonly feel constrained by their position not to take action in reply to criticism, and they have no proper forum in which to do so such as other public figures may have. These considerations lead us to the conclusion that there is need for an effective remedy.....against imputations of improper or corrupt judicial conduct." The Contempt of Courts Act, 1971 engrafted suitable amendments accordingly.
Para-31:- It is true that freedom of speech and expression guaranteed by Article 19 [1] (a) of the Constitution is one of the most precious liberties Page 8 of 13 HC-NIC Page 10 of 15 Created On Sat Apr 30 01:38:39 IST 2016 10 of 15 R/CR.MA/10077/2016 ORDER in any democracy. But equally important is the maintenance of respect for judicial independence which alone would protect the life, liberty and reputation of the citizen. So the nation's interest requires that criticism of the judiciary must be measured, strictly rational, sober and proceed from the highest motives without being coloured by partisan spirit or pressure tactics or intimidatory attitude. The Court must, therefore, harmonise constitutional values of free criticism and the need for a fearless curial process and its presiding functionary, the Judge. If freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it; but if the court considered the attack on the Judge or Judges scurrilous, offensive, intimidatory or malicious, beyond condonable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of the law by fouling its source and stream. The power to punish the contemner is, therefore, granted to the court not because Judges need the protection but because the citizens need an impartial and strong judiciary.
Para-35:- It is true that this Court has neither administrative control over the High Court nor power on the judicial side to enquire into the misbehaviour of a Chief Justice or Judge of a High Court. When the Bar of the High Court concerned reasonably and honestly doubts the conduct of the Chief Justice of that court, necessarily the only authority under the Constitution that could be tapped is the Chief Justice of India, who in common parlance is known as the head of the judiciary of the country. It is of importance to emphasise here that impeachment is meant to be a drastic remedy and needs to be used in serious cases. But there must exist some other means to ensure that Judges do not abuse the trust the society has in them. It seems to us that self- regulation by the judiciary is the only method which can be tried and Chief Justice of India is the first among the Judges. Under Articles 124(2) and 217(1), the President of India always consults the Chief Justice of India for appointment of the Judges in the Supreme Court and High Courts.
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R/CR.MA/10077/2016 ORDER
Under Article 222, the President transfers Judges of High Courts in consultation with the Chief Justice of India. In Supreme Court Advocates-on- Record Association vs. Union of India [(1993) 4 SCC 441] it was reinforced and the Chief Justice of India was given center stage position. The primacy and importance of the office of the Chief Justice was recognised judicially by this Court in Veeraswami's case [supra] in para 60 at page
709. This Court, while upholding power to register case against a retired Chief Justice of the High Court, permitted to proceed with the investigation for the alleged offence under Section 5 of the Prevention of Corruption Act. The Constitution Bench per majority, however, held that the saction and approval of the Chief Justice of India is a condition precedent to register a case and investigate into the matter and sanction for prosecution of the said Judge by the President after consultation with the Chief Justice of India.
Para-40:- Bearing all the above in mind, we are of the considered view that where the complaint relates to the Judge of the High Court, the Chief Justice of that High Court, after verification, and if necessary, after confidential enquiry from his independent source, should satisfy himself about the truth of the imputation made by the Bar Association through its office bearers against the Judge and consult the Chief Justice of India, where deemed necessary, by placing all the information with him. When the Chief Justice of India is seized of the matter, to avoid embarrassment to him and to allow fairness in the procedure to be adopted in furtherance thereof, the Bar should suspend all further actions to enable the Chief Justice of India to appropriately deal with the matter. This is necessary because any action he may take must not only be just but must also appear to be just to all concerned, I.e., it must not even appear to have been taken under pressure from any quarter. The Chief Justice of India, on receipt of the information from the Chief Justice of the High Court, after being satisfied about the correctness and truth touching the conduct of the Judge, may tender such advice either directly or may initiate Page 10 of 13 HC-NIC Page 12 of 15 Created On Sat Apr 30 01:38:39 IST 2016 12 of 15 R/CR.MA/10077/2016 ORDER such action, as is deemed necessary or warranted under given facts and circumstances. If circumstances permit, it may be salutary to take the Judge into confidence before initiating action. On the decision being taken by the Chief Justice of India, the matter should rest at that. This procedure would not only facilitate nibbing in the bud the conduct of a Judge leading to loss of public confidence in the courts and sustain public faith in the efficacy of the rule of law and respect for the judiciary, but would also avoid needless embarrassment of contempt proceedings against the office bearers of the Bar Association and group libel against all concerned. The independence of judiciary and the stream of public justice would remain pure and unsullied. The Bar Association could remain a useful arm of the judiciary and in the case of sagging reputation of the particular Judge, the Bar Association could take up the matter with the Chief Justice of the High Court and await his response for the action taken thereunder for a reasonable period."
6. Learned Advocate General along with learned Additional Advocate General are present and they have jointly submitted that the averments made in this application in respect of seeking Bar's view on the letter in question and discussion on the letter and seeking of voting thereon is in process and this facts are know to all. They submitted that the language employed in the letter and resolution sought to be discussed and passed are contemptuous if examined in light of the decision of Supreme Court cited hereinabove in case of C. Ravichandran Iyer (supra). The Advocate General submitted that he has received a letter seeking his permission under Section 15(2) of the Contempt of Courts Act, but for want of time, he could not follow the practise evolved since years for granting permission or sanction in terms of Section 15(2) only after affording an opportunity of being heard to the Page 11 of 13 HC-NIC Page 13 of 15 Created On Sat Apr 30 01:38:39 IST 2016 13 of 15 R/CR.MA/10077/2016 ORDER concerned. However, both the counsels i.e. Advocate General and Additional Advocate General have jointly submitted that the activities and discussion and voting process would not be permissible as per judgment of Supreme Court in case of C. Ravichandran Iyer (supra).
7. In view of aforesaid, we are of the prima-facie opinion that ordinarily a communication addressed to Head of the Institution in the form of complaint or seeking redressal of grievances couched in a proper language with due objectivity cannot be said to be falling under the purview of Contempt of Courts Act but if the same is couched in an intemperate language and is being used to scandalize the Judge and Court, then, the same would surely not permissible and would amount to Contempt of Court. In the instant case, the averments made in this petition and communication dated 9.4.2016 and the factum of putting the said communication for voting of the members of Bar Association would prima- facie constitute a case for issuance of notice under Contempt of Courts Act and we are also of the view that the contents of letters would persuade the Court for issuance of notice under Contempt of Courts Act.
8. At this stage, learned advocate appearing for applicant submitted that the respondent nos. 1 and 3 be restrained from keeping further and aggravating the situation in any manner.
9. Let there be a notice under the Contempt of Courts Act returnable on 2.5.2016 to respondents. In the mean time and till the returnable date, the respondents are restrained from Page 12 of 13 HC-NIC Page 14 of 15 Created On Sat Apr 30 01:38:39 IST 2016 14 of 15 R/CR.MA/10077/2016 ORDER indulging in any scandalous activity or holding official meeting and passing resolution on the subject matter as it is expressly prohibited and could be said to be contemptuous as per decision of Supreme Court in case of C. Ravichandran Iyer (supra).
Direct service permitted today.
(S.R.BRAHMBHATT, J.) (B.N. KARIA, J.) pallav Page 13 of 13 HC-NIC Page 15 of 15 Created On Sat Apr 30 01:38:39 IST 2016 15 of 15