Print_ WP before Delhi HC – J.C.S.Karnan_(18.05.2017)

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____OF 2017

 

BETWEEN

Justice C.S.Karnan                                        …                   PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                         …          RESPONDENTS

 

[FOR INDEX KINDLY SEE INSIDE]

 

 

 

 

FILED BY

 

 

(Mathews J.Nedumpara)

(A.C.Philip)

&

(M.Malaviya)

Advocates for the Petitioner

304, 3rd Floor, Hari Chambers,

Near. Old Customs House, Fort, Mumbai- 400001.

(PH;022-22626634,Mobile: , 09820535428, & 09769110823)

Filed on :__.05.2017

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____ OF 2017

 

BETWEEN

Justice C.S.Karnan                                        …                   PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                         …          RESPONDENTS

 

I N D E X

 

 

Sl. No.	Particulars	Page No
	Listing Proforma
	INDEX
	Court Fees
	Urgent Application
	Notice of Motion
	Memo of Parties
	Synopsis and List of Dates
	Writ Petition under Article 226 of the Constitution of India with Affidavit.
	Annexure-“A” :- A copy of the notice dated 8th February, 2017 issued by the Supreme Court, which is a short one containing 7  sentences, by which the Petitioner was literally removed from his office.
10.	Annexure-“B” :- A Copy of the order dated 01st May,2017 issued by the Supreme Court directing medical examination of the Petitioner.
11.	Annexure-“C” :- A copy of the order dated 10th March,2017 issued by the Supreme Court.
12.	Annexure-“D” :- A copy of the order dated 9th May, 2017 issued by the Supreme Court.
13.	Annexure-“E” :- A copy of the Writ Petition before the  Hon’ble Supreme Court of India  in which the constitutional validity of the Contempt of Courts Act,1971 is challenged; so too seeking a declaration that the order dated 9th May, 2017 is unconstitutional (Excluding annexures).
14.	Annexure-“F”:- A copy of the application to recall the order dated 9th May, 2017 filed by the Petitioner before the Hon’ble Supreme Court of India.
15.	Annexure-“G”:- Copy of the memorandum/representation before His Excellency, the President of India, instituted by the petitioner  under Article 72 of the Constitution of India (Excluding Annexure)
16.	Annexure-“H”(Colly):- Copies of the covering letter bearing D-No.2427/2017/X  dated 15th May, 2017 and the decision dated 12th May, 2017 of the Registrar (Judicial-I).
	Vakalatnama

 

Date:___.05.2017

Place: New Delhi.                                      Through

 

(Mathews J.Nedumpara)

(A.C.Philip)

&

(M.Malaviya)

 

Advocates

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____ OF 2017

 

BETWEEN

Justice C.S.Karnan                                     …              PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                              …        RESPONDENTS

 

 URGENT APPLICATION

 

To

The Registrar,

Hon’ble’ble High Court of Delhi,

New Delhi.

 

Sir,

Kindly treat the accompanying Writ Petition as urgent one in accordance with the High Court Rules and procedure. The Grounds of Urgency are as follows:

In view of the impending arrest of the Petitioner in execution of the order of the Supreme Court, the counsel for the Petitioner were left with no option than to mention the matter before the Hon’ble CJI in the open court.  The Hon’ble CJI directed the Petitioner’s counsel to approach the Registry. While matters stood thus, the Petitioner’s counsel was telephonically informed by the Registry of the Supreme Court that it has decided to decline registration of the Writ Petition.  The Assistant Registrar by letter bearing D-No.2427/2017/X dated 15th May, 2017 communicated the decision dated 12th May, 2017 of the Registrar (Judicial) declining registration of the Writ Petition invoking Order XV Rule 5 of the Supreme Court Rules, 2013. Order XV, Rule 5, Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013,  of the Supreme Court Rules, 2013, are unconstitutional and void.  It has meant substitution of the Supreme Court by its Registrar (Judicial-I), the Registrar acting as if he is the Supreme Court.  The petitioner is the sitting judge of the High Court of Judicature at Calcutta.

Any delay in finding justice will cause serious repercussions and consequence upon the rule of law and the constitutional supremacy of the nation. Hence, for protecting the institutional integrity and upholding the national interest, the matter requires urgent hearing and adjudication.

Hence this application of urgency.

 

Petitioner

 

Through

(Mathews J.Nedumpara)

(A.C.Philip)

&

(M.Malaviya)

Advocatea for the Petitioner

304, 3rd Floor, Hari Chambers,

Near. Old Customs House, Fort, Mumbai- 400001.

(PH;022-22626634,Mobile: , 09820535428, & 09769110823)

New Delhi.

__.05.2017

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____ OF 2017

 

BETWEEN

Justice C.S.Karnan                                        …              PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                  …         RESPONDENTS

 

 

NOTICE OF MOTION

 

 

Sir,

The enclosed Writ Petition(Civil) in the aforesaid matter  as being filed on behalf of the petitioner and is likely to be listed on ___May,2017 or any date, thereafter, please take notice accordingly.

Yours’ faithfully,

 

(Mathews J.Nedumpara)

(A.C.Philip)

&

(M.Malaviya)

Advocate for the Petitioner

304, 3rd Floor, Hari Chambers,

Near. Old Customs House, Fort, Mumbai- 400001.

(PH;022-22626634,Mobile: , 09820535428, & 09769110823)

New Delhi.

__.05.2017

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____ OF 2017

 

BETWEEN

Justice C.S.Karnan                      …               PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                  …         RESPONDENTS

 

MEMO OF PARTIES

 

Justice C.S.Karnan

aged about 61 years,

S/o.Mr.Swaminathan,

Residing at:

1/GB, Rosedale Towers,

New Town,

Kolkotta,                                                        …PETITIONER

Versus

1. The Hon’ble, Supreme Court of India,

represented by

The Registrar General of Supreme Court of India,

Supreme Court of India,

TilakMarg,

New Delhi-110 201,

India.                                            …RESPONDENT NO.1

 

2. The Union of India,

represented by its Secretary in

the Department of Law & Justice,

Government of India,

New Delhi 110 001.             …RESPONDENT NO.2

 

3. 3. Director General of Police,

Director General of Police Office,

KamarajarSalai,

Kailasapuram,

Mylapore, Chennai,

Tamil Nadu 600005                      …RESPONDENT NO.3

 

4. Director General of Police ,

Director General of Police Office,

West Bengal Police Directorate,
Nabanna,
325 SaratChatterjee Road,
Howrah – 711 102.                …RESPONDENT NO.4

 

 

 

 

 

5. Registrar(Judicial-I),

Supreme Court of India,

TilakMarg,

New Delhi-110 201,

India.                                            …RESPONDENT NO.5

 

 

6. Supreme Court

Advocates-on-Record Association,

Office of the Association is located A

Golden Jubilee Bar Room,

Ground Floor, Supreme Court of India,

New Delhi.                            …RESPONDENT NO.6

 

 

7. The Bar Council of India

Rep. by its Chairman,

21, Rouse Avenue Institutional Area,

Near BalBhawan,

New Delhi-110002        …RESPONDENT No.7

 

 

Petitioner

 

THROUGH:

 

(Mathews J.Nedumpara)

(A.C.Philip)

&

(M.Malaviya)

 

Advocates for the Petitioner,

Advocate for the Petitioner

304, 3rd Floor, Hari Chambers, Near. Old Customs House, Fort, Mumbai- 400001.(PH;022-22626634,Mobile: ,9820535428, & 09769110823   )

 

__.05.2017

 

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____ OF 2017

 

BETWEEN

Justice C.S.Karnan                      …               PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                         …         RESPONDENTS

SYNOPSIS AND LIST OF DATES

 

In view of the impending arrest of the Petitioner in execution of the order of the Supreme Court, the counsel for the Petitioner were left with no option than to mention the matter before the Hon’ble CJI in the open court.  The Hon’ble CJI directed the Petitioner’s counsel to approach the Registry. While matters stood thus, the Petitioner’s counsel was telephonically informed by the Registry of the Supreme Court that it has decided to decline registration of the Writ Petition.  The Assistant Registrar on 19^th May,2017, by letter bearing D-No.2427/2017/X dated 15^th May, 2017 communicated the decision dated 12^th May, 2017 of the Registrar (Judicial) declining registration of the Writ Petition invoking Order XV Rule 5 of the Supreme Court Rules, 2013. Order XV, Rule 5, Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013,  of the Supreme Court Rules, 2013, are unconstitutional and void.  It has meant substitution of the Supreme Court by its Registrar (Judicial-I), the Registrar acting as if he is the Supreme Court.  In short, while the Writ Petition instituted by the Petitioner under Article 32 is declined to be even registered, the issues raised therein remain to be adjudicated.

Hence, the instant Writ Petition under Article 226 of the Constitution challenging the constitutional validity of Sections 2(c), 12, 14 and 15 of the Contempt of Courts Act, 1971, Order XV Rule 5 , Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013 as well.

 

THE LIST OF  DATES

23/01/2017      The letter addressed by the Petitioner to the Hon’ble Prime Minister seeking an investigation into allegations against corruption by certain Judges of the High Court of Judicature at Madras.

08/02/2017      A Notice was issued to the petitioner, vide order even dated by the Hon’ble Supreme Court.

09.05.2017        Order passed by the Hon’ble Supreme Court, convicting the petitioner for criminal contempt of court and sentencing him to undergo imprisonment for six months

11.05.2017       The Petitioner filed an application seeking recall of the order dated 9^th May, 2017

11.05.2017        Writ Petition(Crl.) (D) No. 15420 filed in the Supreme Court

11.05.2017        The Counsel for the Petitioner sought to mention the at 4.00 p.m. on 11^th May, 2017, which also failed since the Hon’ble CJI did not lend his ears and retired to his Chamber.

12.05.2017        Accordingly, the Counsel for the Petitioner mentioned the matter before the Hon’ble CJI at 10.30 a.m. on 12^th May, 2017seeking constitution of a Bench on emergent basis but was denied.

15.05.2017        The Counsel for the Petitioner mustering courage, the undersigned went to the Hon’ble CJI once again at 2.00 p.m. on 15^th May, 2017 but said request was not acceded to.

15.05.2017        The Writ Petition and the Recall application by the petitioner before the Supreme Court of India is lodged by the Respondent No.5.

17.05.2017        Petition under Article 72 of the Constitution of India has been E-Mailed to His Excellency, The President of India.

19.05.2017        the intimation was given to the Advocates to the effect that the Writ Petition and the Recall application by the petitioner before the Supreme Court of India is lodged by the Respondent No.5.

20.05.2017        Petition under Article 72 of the Constitution of India has been submitted to His Excellency, The President of India.

__.05.2017         Instant writ petition is filed.

 

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  _____ OF 2017

 

BETWEEN

Justice C.S.Karnan                                  …                  PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                               …           RESPONDENTS

 

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.

 

TO

THE HONOURABLE THE CHIEF JUSTICE

AND THE OTHER HONOURABLE PUISNE

JUDGES OF THIS HONOURABLE Court

 

THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED

 

MOST RESPECTFULLY SHEWETH

1. The Petitioner is a Judge of High Court of Judicature at Calcutta and a permanent resident of Karnatham Village, Virudhachalam Taluk, Cuddalore District, Tamilnadu. The Petitioner is constrained to institute the instant Writ Petition for the enforcement of his fundamental rights.
2. It has become imperative for the Petitioner to institute the instant Writ Petition, one unparalleled in the legal history, since A Seven-Judge Bench of the Supreme Court of India presided over by Hon’bleShri justice J.S. Khehar, Chief Justice of India (CJI), was pleased to issue a notice dated 08^th February,2017  to the Petitioner to show cause as to why proceedings under The Contempt of Courts Act,1971 (the Act, for short) should not be initiated against him as he chose to address a letter dated 23rd January, 2017  to the Hon’ble Prime Minister of India pointing out that certain Judges named in the said letter have indulged in corruption.  A copy of the notice dated 8^th February, 2017 issued by the Supreme Court, which is a short one containing 7  sentences, by which the Petitioner was literally removed from his office because by the said notice/order the Petitioner was restrained from exercising his judicial and administrative powers, is produced as Annexure “A”(at pages __ to ___).  By the said order the Petitioner was also directed to return to the Registrar General of the High Court all judicial and administrative files in his possession.
3. In furtherance of the notice/order dated 8^th February, 2017, the Petitioner appeared before the Seven-Judge Bench of the Supreme Court and expressed his regret for anything said or done by him which is unbecoming of the high constitutional office which he occupies. He brought to the notice of the Hon’ble Bench that he as a sitting Judge of the High Court is not administratively subordinate to the Supreme Court and if any action or words on his part amounts to “proved misconduct” within the meaning of Article 124(4) of the Constitution, then it is for the Parliament and the parliament alone which can proceed against him and that the Hon’ble President in furtherance of an impeachment motion which has received the support of majority of members of the House; so too 2/3^rd of the members who partake in the voting could remove him and that the Supreme Court is not invested with any jurisdiction to proceed against him even assuming that his words or action in complaining of corruption in judiciary amounts to misconduct.  The Petitioner pointed out that he did not commit any contempt of Court and in bringing to the notice of the Hon’ble Prime Minister about corruption at the hands of his Brother Judges he has only discharged his fundamental duty as a citizen – bringing to the notice of the appropriate authority the corruption and malpractices which could destroy the very foundation of the justice delivery system, one of the most important pillars of the State.  The Petitioner contended that he did nothing which is blameworthy and the Supreme Court erred in divesting him of his judicial and administrative powers which amounts to his impeachment without authority of law; that what is required to be done is not to invoke contempt of Court proceedings against him which amounts to great ridicule and humiliation, but what is required is to conduct an inquiry into the corrupt practices alleged by him against his Brother Judges.  He further requested the Hon’ble Bench to restore his judicial and administrative powers, allow him to resume work as a Judge and pointed out further that its orders have caused great mental agony, pain and injustice which no words could adequately describe/explain.
4. The Hon’ble Bench, particularly the Hon’ble CJI, instead of being empathetic to the Petitioner for the injustice and pain which he had to undergo as a consequence of issuance of contempt of Court notice to him and restore his dignity and bring an end to his pain and agony, ordered that he be examined by a medical board and certify whether or not he is a mentally fit person. Copy of the order dated 01^st May,2017 directing such medical examination of the Petitioner is produced as Annexure “B” (at pages __ to ___).  Since the Petitioner did not appear before the Supreme Court on 10^th March,2017, on which date the case was listed for hearing, the said Bench, by order even dated, issued a bailable warrant against him and directed the police to serve the same on him.  A copy of the order dated 10^th March,2017 is produced as Annexure “C”(at pages __ to ___).
5. The Petitioner took the aforesaid orders directing him to be subjected to medical examination and issuing a bailable warrant against him as one without jurisdiction and in violation of law and thus a nullity, incapable of commanding observance. Furher, the Petitioner found the said orders as trenching into the jurisdiction of the Parliament, which is too naked and manifest and as clear as daylight, and as violation of Articles 124 and 217 of the Constitution.  Therefore, the Petitioner did not appear before the Seven-Judge Bench on 09^thMay,2017 to which date the case stood adjourned.
6. On 9^th May, 2017, the Court, as it appears from the order of even date, heard “Mr.RakeshDwivedi, learned senior counsel representing the State of West Bengal, with reference to the medical examination of Sri Justice C.S. Karnan, as also, Mr.Maninder Singh, learned Additional Solicitor General of India, Mr.K.K.Venugopal, learned senior counsel representing the Registrar General, High Court of Judicature at Madras, and Mr.Rupinder Singh Suri, Senior Advocate, in his capacity as the President of the Supreme Court Bar Association, and, without any discussion whatsoever at all on the merits of the case or what was argued by them, came to the conclusion that the Petitioner“has committed contempt of the judiciary. His actions constitute contempt of this Court, and of the judiciary of the gravest nature. Having found him guilty of committing contempt, we convict him accordingly. We are satisfied to punish him by sentencing him to imprisonment for six months. As a consequence, the contemnor shall not perform any administrative or judicial functions.Detailed order to follow.”  A copy of the order dated 9^th May, 2017 is produced as Annexure “D”(at pages __ to ___).   As is manifest from the order dated 9^th May, 2017, the Supreme Court has barred the Petitioner from performing any of his administrative or judicial function, which has meant his removal from the office of the Judge of the High Court, which a power is not invested in the Supreme Court at all.
7. When the instant petitioner appeared before the Supreme Court on 31^stMarch,2017 upon notice, he brought to the notice of the Hon’ble Court that divesting him of his judicial and administrative powers amounts to removing him from his office, which is in the exclusive domain of the President of India upon a motion of impeachment which has received the assent of the Parliament; that the Supreme Court has no jurisdiction to impeach him, which its orders have meant, which, to repeat, is in the exclusive domain of the Parliament, for, Parliament includes the President. On 9^th May, 2017 and on the earlier dates on which the contempt of Court case was listed for hearing, there was no discussion whatsoever on the very jurisdiction of the Supreme Court to invoke contempt of Court proceeding against a Sitting Judge of a High Court and remove him from office, which is in the exclusive domain of the Parliament, and to imprison him.
8. The Petitioner instituted a substantive Writ Petition under Article 32 of the Constitution seeking a declaration that the entire proceeding at the hands of the Seven-Judge Bench of the Supreme Court culminating in the order dated 9^th May, 2017 is unconstitutional and void because it amounted to usurpation of the jurisdiction of the Parliament to remove him from office; akin to re-enactment of the manner in which the power of appointment of Judges to the higher judiciary, which the Founding Fathers of the Constitution had vested in the executive, was usurped by the judiciary by reviving the collegiums system by recourse to judicial legislation. A copy of the Writ Petition in which the constitutional validity of the Act is challenged; so too seeking a declaration that the order dated 9^th May, 2017 is unconstitutional is produced as Annexure “E”(at pages __ to ___).
9. The Petitioner also filed an application seeking recall of the order dated 9^th May, 2017; so too suspension/stay thereof, pointing out that the said order is one rendered void ab initio, for want of jurisdiction and against the principle of nemoiudex in suacausaor nemodebetessejudex in propriacausa – no one can be judge in his own cause. It was pleaded that the Petitioner was not told what exactly is the charge against him; what the legal provision under which he is charged; what are the allegations constituting the charge; what is the material and evidence on which the allegations are founded; what is the punishment likely to be imposed on him, not to speak of not affording him an opportunity to contradict the evidence, if any, against him  In the said application and the Writ Petition the Petitioner further pleaded that even assuming that the Act is constitutional, then also the elementary principles of criminal jurisprudence founded on the principles of natural justice, like, presumption of innocence, burden of proof is on the prosecution, that nobody shall be compelled to be a witness against himself, that an accused is entitled to be defended by a counsel, that there could be no sentence without a judgment, that it cannot be that a reasoned judgment can follow after the conviction but, on the contrary, there can be no sentence without there in existence a reasoned judgment etc., ought to be observed.  A copy of the application to recall the order dated 9^th May, 2017 is produced as Annexure “F”(at pages __ to ___).
10. The order dated 9^th May, 2017 was dictated in the open Court. It was uploaded on the website of the Supreme Court late in the night of the same day.  The counsel for the Petitioner, who was in Cochin, Kerala, booked the first flight to Chennai, discussed the case with the Petitioner, prepared the Writ Petition and the application to recall the order dated 9^th May, 2017 and sought to institute them in the Supreme Court on 11^th May, 2017.  Registration of cases in the Supreme Court, to an extent, is computerized.  There are only two provisions for registration of cases in terms of the software in vogue, namely, (a) through an Advocate on Record (AOR) and (b) by Party in Person.  The Counsel for the Petitioner; so too his associate Shri A.C. Philip, approached not less than 30 AORs.  However, none of them was forthcoming to be an AOR on behalf of the Petitioner.  Many of them confided in the undersigned that they are scared of displeasing the Hon’ble CJI; that AORs and the senior counsel practicing in the Supreme Court, unlike the ordinary lawyers who appear in the High Courts and subordinate Courts, do not enjoy the kind of freedom and independence which lawyers as a class, the sentinels of civil liberties and freedoms, ought to enjoy and profess to enjoy.  They were too frank to admit that orders of the Supreme Court are extremely discretionary; that more than 80% of the petitions filed under Articles 136 and 32 of the Constitution, which constitute 95% of the work of the supreme Court, are absolutely discretionary and no AOR or a senior counsel could afford to invite the slightest of displeasure of the Hon’ble Judges.
11. Faced with the aforesaid scenario, the undersigned tendered the Petitioner’s Writ Petition and the application to recall the order dated 9^th May, 2017 in the open Court before the Hon’ble CJI at 4.00 p.m. on 11^th May, 2017. On being submitted that the AORs whom the undersigned had approached have refused to act as an AOR for the Petitioner, the Hon’ble CJI was gracious enough to accept the Writ Petition and the application to recall the order dated 9^th May, 2017, which were tendered across the Bar.  The Counsel for the Petitioner realized that through oversight what he tendered across the Bar on 11^th May, 2017 was a copy of the Writ Petition and not the original, though the application seeking recall of the order dated 9^th May, 2017 was original, which was perused by the Hon’ble CJI, and directed the Registry to accept the original of the Writ Petition.  However, the Registry refused to accept the same, whereupon the undersigned approached the Registrar General, who too refused to accept the same.  Accordingly, the Counsel for the Petitioner mentioned the matter before the Hon’ble CJI who directed the undersigned to deliver the same to the Registrar.  Since the said direction remained to be communicated, the Registrar refused to accept the Writ Petition which compelled the Counsel for the Petitioner to mention the matter once again at 2.00 p.m.  The Hon’ble CJI showed his displeasure on the matter being mentioned for the third time and directed the Counsel for the Petitioner to present the petition in the Registry, which accepted the same readily upon instructions being received from the Court Associate of the Hon’ble CJI.
12. Since the order dated 9^th May, 2017 has directed the police to take the Petitioner into custody forthwith, being faced with the threat of imminent arrest the undersigned was forced to mention the matter seeking emergent constitution of an appropriate Bench, the Supreme Court being on Summer Vacation. The Counsel for the Petitioner sought to mention the matter at 4.00 p.m. on 11^th May, 2017, which also failed since the Hon’ble CJI did not lend his ears and retired to his Chamber.  The Counsel for the Petitioner accordingly met the Registrar (Judicial) who promised to obtain instructions from the Hon’ble CJI.  When contacted subsequently, he was kind enough to indicate that constitution of a Bench and listing of the case is beyond his powers and asked the Counsel for the Petitioner to mention the matter before the Hon’ble CJI.  Accordingly, the Counsel for the Petitioner mentioned the matter before the Hon’ble CJI at 10.30 a.m. on 12^th May, 2017seeking constitution of a Bench on emergent basis, pointing out that the order dated 9^th May, 2017 meant the Petitioner being impeached in a manner unknown to the Constitution, as a High Court Judge could only be removed from office by the Parliament; that the Petitioner was convicted without a charge, without a trial, without even a judgment; that in terms of the proviso to Section 12 of the Act a contemnor is liable to be discharged even after his conviction if he tenders an apology, even a conditional one, provided that it is bona fide.  It was further pointed out that such an opportunity of discharge, even after conviction, which is embedded in the Act, which opportunity was extended to Shri Vijay Mallya who too was convicted on the same day under the Act, was denied to the Petitioner and, therefore, it is imperative that the case be listed by constituting an appropriate Bench.  The Counsel for the Petitioner believes that the submissions made by him as aforesaid, which he did in the discharge of his sacred duty which he owed towards his client, the Petitioner, for reasons difficult to be fathomed, incensed the Hon’ble CJI.  To the repeated pleas of the undersigned, the reply of the Hon’ble CJI was “Go to the press”.  The Counsel for the Petitioner thereafter met the Registrar General who expressed his helplessness in the matter.  The Petitioner is reminded of the words of Mr.  Brougham, the Attorney-General of the Queen, in his defence of Queen Caroline before the House of Lords:-

 

“I once before took leave to remind your lordships — which was unnecessary, but there are many whom it may be needful to remind — that an advocate, by the sacred duty of his connection with his client, knows, in the discharge of that office, but one person in the world, that client and none other. To save that client by all expedient means — to protect that client at all hazards and costs to all others, and among others to himself — is the highest and most unquestioned of his duties; and he must not regard the alarm, the suffering, the torment, the destruction, which he may bring upon any other; nay, separating even the duties of a patriot from those of an advocate, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client’s protection.”

 

And of Lord Denning:

“An advocate is a minister of justice equally with a judge”, who is bound to protect the interest of his client, fearless of the Judge, unmindful of the client who may stab him from behind, unmindful of the society which may not be kind to him.”

 

Mustering courage, the Counsel for the Petitioner went to the Hon’ble CJI once again at 2.00 p.m. on 15^th May, 2017 and requested that an appropriate Bench be constituted and the case be listed.  The Counsel for the Petitioner received a couple of calls on his mobile from the officers of the Registry saying that the Petitioner’s case will never be listed and that it has been “lodged”.  The undersigned was also told that a communication by email to that effect has been sent to him, which is yet to be received.

13. Though the Supreme Court has convicted the Petitioner under the Act, he in all humility begs to submit that he did not commit any contempt of Court. What is the contempt he has committed?  He addressed a letter to the Hon’ble Prime Minister alleging that some of his brother Judges had sold their conscience and indulged in corrupt practices.  A Court and a Judge are not one and the same.  Both are different, though there could be no Court without a Judge.  A Judge is not a Court.  The allegation of corruption made by the Petitioner is against individual Judges.  If the allegations made by him are untrue, it will entail in an action, both civil and criminal, at the hands of the Judges concerned against the Petitioner.  Initiation of contempt of Court proceeding against the Petitioner has meant that nobody in this country could ever dare to be a whistleblower in so far as corruption in judiciary is concerned.  In its judgment in C. RavichandranIyer v. Justice A.M. Bhattacharjee,1995 SCC  (5) 457    JT 1995 (6)  339, 1995 SCALE  (5)142, the Supreme Court has held that no First Information Report (FIR) could be registered against members of the higher judiciary without the prior consent of the CJI, which meant impunity for a Judge from investigation even in heinous crimes, without meaning the least that Judges indulge in such crimes.  The contempt of Court proceedings against Shri Justice Katju and the Petitioner has meant that whoever speak about corruption or criticize the Judges in higher judiciary, no matter it is a settled principle that judgments could be criticized and nobody is above law and even if a Judge indulges in corruption he will be subject to the criminal laws of the land, will be proceeded against for contempt of Court and will be convicted and sentenced and even the media will be restrained from reporting the truth.  The Petitioner’s case is no longer the case of an individual who has been convicted and sentenced to imprisonment without a chargesheet, without a trial, without even a judgment, but by a sentence where a reasoned judgment is yet to be delivered, but one concerning the very right of freedom of speech and expression, transparency and accountability in higher judiciary.
14. In the name of independence of judiciary, by the judgments in Judges-2, Judges-3 and the NJAC cases, the power of selection and appointments of Judges to the higher judiciary, which the Founding Fathers of the Constitution had vested in the executive, has been usurped by the judiciary/Supreme Court. With the order dated 9^th May, 2017 (Annexure “D”(at pages __ to ___)), even the power to remove a Judge of a High Court has been assumed to itself by it by recourse to the provisions of the Contempt of Courts Act, 1971 even without any discussion as to whether or not any such jurisdiction is vested in the Supreme Court.
15. The nation is at crossroads. Independence of judiciary is of paramount importance and that is achieved when Judges are appointed by open selection, inviting applications from all eligible candidates and references from all stakeholders, in an open and transparent manner; so too by introducing a mechanism to deal with complaints and grievances against Judges of the higher judiciary without in any manner impinging their independence.  Video-recording of Court proceedings, repealing of the Contempt of Courts Act, abolition of the system of designation of lawyers as Senior Advocates; so too Advocates on Record are all measures without which the dream of a judiciary which is transparent, efficient and accountable to the people will remain a mirage.
16. The Petitioner’s effort to get undone the injustice caused to him by instituting a Writ Petition under Article 32 of the Constitution and an application seeking recall of the order dated 9^th May, 2017, as aforesaid, has failed.
17. The Petitioner being denied justice and the concept of justice being divine; it is his birth right and when justice is denied to him by the highest Court of the land, the only authority which the Petitioner could think of to seek justice is His Excellency, the President of India, the symbol of “We, the People of India”, the sovereign. Article 72 of the Constitution undoubtedly invests in the President of India the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.  Accordingly the Petitioner instituted a memorandum/representation before His Excellency, the President of India under Article 72 of the Constitution of India and the same is annexed hereto as Annexure- “G”( at pages __ to ___).
18. The Petitioner with utmost respect submits that the entire proceeding at the hands of the Hon’ble Chief Justice Of India in constituting the Seven-Judge Bench finally culminating in his conviction and sentence, as aforesaid, is without jurisdiction. The reasons for the same are manifest.  It is only appropriate to extract below Section 2(c) of the Contempt of Courts Act, 1971 (the Act, for short) which defines “criminal contempt”:-

“2(c) ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

 

(i) scandalizes, or tends to scandalize, 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;”

 

From a mere reading of the provision extracted above it is manifest that what could constitute a criminal contempt is any “publication” which scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any Court.  There is a distinction between the words “Court” and “Judge”.  A Judge is not a Court, though without a Judge there could be no Court.  In addressing the letter in question to the Hon’ble Prime Minister and bringing to his notice certain corrupt practices resorted to by some Judges named in the said letter, the Petitioner did not commit any contempt.  The allegations contained in the said letter are against the Judges named therein and not against any Court – neither the High Court of Madras nor the Supreme Court.  If the said allegations are untrue, they would at the most amount to defamation which will entail an actionable right, both civil and criminal, in the Judges named in the said letter.  Under the laws of the land, the Judges named in the said letter have every right to proceed against the Petitioner under civil and criminal law.  However, none of them has chosen to do so for reasons better known to them.  Instead, the Hon’ble CJI was pleased to take suomotu cognizance, apparently invoking Section 15 of the Act.  The allegation against the Petitioner, as has been referred to above, having failed to meet the essential ingredients of Section 2(c) of the Act, the entire proceeding against him is not maintainable – sublatofundamento, cadit opus – the foundation being removed, the structure falls.

 

19. Under our constitutional scheme, High Courts are not subordinate to the Supreme Court; High Courts are as much independent as the Supreme Court is, though their orders could be judicially challenged in the Supreme Court, the latter being a Court of Appeal.  It is well settled in law that orders of all Courts and Tribunals, be it the lowest or the highest, be it the Munsiff Court or the Supreme Court, if rendered in violation of the principles of natural justice, in violation or ignorance of express statutory provisions, are a nullity, being vitiated by errors apparent on the face of the record.  Such an order of a superior Court which is a nullity could be challenged before a Court which is judicially subordinate and no certiorari will lie.  In R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, the Supreme Court, while declining a writ of certiorari at the hands of a Bench of two Judges against an order of a Bench of five Judges made it clear that the order of the Five-Judge Bench, which was one rendered without jurisdiction, could be challenged before the High Court.  Section 15 of the Act does not invest in the Supreme Court any jurisdiction other than what is expressly provided therein, which could, at the best, invest in it a power to take suomotu criminal contempt of Court proceeding where any publication in whatever means scandalizes or tend to scandalize or lowers or tend to lower the authority of the Supreme Court or prejudices or interferes or tend to interfere with the due course of judicial proceeding.  The Petitioner, a Judge of the High Court of Calcutta, is not under any disciplinary jurisdiction of either the CJI or the Bench of Seven Hon’ble Judges constituted by the CJI, as in the instant case.  The Petitioner could be removed from office only “by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”  Even assuming that the conduct of the Petitioner in addressing the letter to the Hon’blePrime Minister alleging corruption against his Brother Judges, nay, securing enrolment based on fake law degree certificate, which was one of the allegations made by the Petitioner against Shri Justice Dhana Paul, since retired, that does not constitute a contempt of court at all.
20. Section 15 of the Act invests concurrent jurisdiction in the Supreme Court and High Courts. If the said Section is to be understood as one investing jurisdiction on the supreme Court to initiate contempt of Court proceeding against a Judge of the High Court, then the High Court being not subordinate to the Supreme Court could also be said to be invested with the jurisdiction to invoke contempt of Court proceeding against a Judge of the Supreme Court, a proposition which is fraught with dire consequences.  In short, under the constitutional scheme and interpretation of the Act in consonance with the concept that a High Court is not subordinate to the Supreme Court and is as independent as the Supreme Court itself, subject to the rider that decisions of the High Courts on judicial side are amenable to appeal to the Supreme Court, a contempt of Court proceeding could not have been instituted against the Petitioner at all.  The Petitioner is, therefore, entitled to a declaration that the very notice dated 08/02/2017 issued against him under the Act and all further proceedings in furtherance thereof, culminating in the order dated 9^th May, 2017, are unconstitutional and void.
21. The order dated 9^th May, 2017 was passed in the absence of the Petitioner.  The Petitioner’s arrest and committing him to prison is a fait accompli, no matter howsoever illegal and void the said order could.  The question, therefore, is what are the legal options open to the Petitioner to protect himself from the impending arrest and detention.  It is a fundamental principle of law that if an order of a Court, even of the highest Court of the land, is without jurisdiction, in violation of the principles of natural justice and in ignorance of express statutory provisions, nay, in other words, vitiated by errors apparent on the face of the record, such an order is a nullity, one which never ever existed in the eye of law, and the same could be challenged whenever and wherever is tried to be implemented.  This is the essence of the doctrine of nullity which finds enunciation in R. Antulay v. R.S. Nayak (cited supra), wherein it was held that the order of the Five-Judge Constitution Bench of the Supreme Court requesting the Chief Justice of the High Court of Bombay to designate a Judge of the High Court to conduct the trial against Shri.A.R.Antulay, while in terms of the Prevention of Corruption Act the trial could only have been conducted by a Judge of the Designated Court of the rank of a District Judge, from whose decision an appeal will lie to the High Court, was a nullity and could be impugned before the High Court.  ShriAntulay adopted that course of action which, though the High Court declined, was upheld by the Supreme Court, holding that an order of even a Constitution Bench of the Supreme Court, if rendered void ab initio, its validity could be questioned even before a forum which is judicially subordinate to the Supreme Court.  An order which is a nullity could be challenged by way of (a) of an appeal, if the statute provides for one, (b) a review which is inherent in so far as the Supreme Court and High Courts are concerned and (c) a collateral proceeding, namely, by way of a suit or a Writ Petition under Article 32/226 of the Constitution.
22.           The Petitioner is entitled to seek a declaration that the order dated 9^th May, 2017 (Annexure “D”( at pages __ to ___)) is a nullity before a competent Civil Court; so too before a High Court of competent jurisdiction; so too before this Hon’ble Court under Article 32 of the Constitution, though a collateral proceeding before a Civil Court or High Court may only be theoretically justified.  In the instant contempt of Court proceeding the Petitioner is a Respondent.  It is a fundamental principle of law that if one were to seek a declaratory remedy then that ought to be by an independent proceeding.  In other words, if the Petitioner were to seek a declaration that the order dated 9^th May, 2017 is a nullity, he is duty bound to institute a petition to that effect and the order which is sought to be declared as a nullity at the hands of this Hon’ble Court under Article 226, though Article 226 makes no express reference about its power to grant a declaration.  This Hon’ble Court being the Constitutional Court, a Court of record, is undoubtedly invested with the jurisdiction to grant such a declaration.  Therefore, the Petitioner is instituting a petition under Article 226 of the Constitution for a declaration that the entire proceeding at the hands of Hon’ble Supreme Court of India  against the Petitioner culminating in the order of the registrar (Judicial-I) lodging the recall application and the Writ Petition are void ab initio.
23. As aforesaid, since the orders dated 08/02/2017 and 09/05/2017 at the hands of Hon’ble Supreme Court of India could be sought to be recalled, being rendered void ab initio, such a relief could be sought for even by instituting an application for recall as well.There is no need to file an application for review in terms of Articles 137  and 145  read with the Rules framed by the Supreme Court because recall in terms of the said Rules is contemplated where a review of the judgment is contemplated where there has been a decision after the party is afforded a hearing.
24. The Act could not have any application at all and the entire proceeding culminating in the order dated 9^th May, 2017 is a nullity.  Even assuming for mere argument’s sake that the Act is applicable and this Hon’ble Court has jurisdiction, then also the entire proceeding against the Petitioner is void ab initio since even the protection available to an alleged contemnor in terms of the Act has been denied to the Petitioner.  All that has been served upon the Petitioner is a copy of the notice/order dated 08/02/2017 by which he was asked to show cause as to why contempt of Court proceeding ought not to be initiated against him.  That was a mere notice; the said notice did not contain the allegations constituting the charge and the documents and materials based on which the allegations are founded.  Therefore the said notice is one incapable of being even replied to.  Even assuming that the Act is applicable against a High Court Judge, the Petitioner is entitled to be heard before a charge is framed.  In the instant case, the Petitioner is found guilty of contempt of Court without even a charge being framed.
25. It is a fundamental principle of law, as enunciated in Section 273,278,281,291, of The Code Of Criminal Procedure, 1973, that no trial could be conducted in the absence of an accused, much less he could be convicted and sentenced.  Even if the accused has failed to appear, it is the duty of the prosecution and the Court to ensure the presence of the accused.  Trial, conviction and sentence in the absence of an accused and without securing his presence is unknown to criminal jurisprudence.
26. The concept that there is no vested right of appeal is a concept of the bygone days.  It is universally accepted that statutes of all countries ought to provide for one forum of appeal in matters of criminal jurisprudence.  The United Nations Resolutions also, to which India is a party, also require so.  The judgments of the Supreme Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. II (2007) CCR 171 (SC) : II (2007)  DLT (Crl.) 291 (SC) : (2007) 6 SCC 528 and  C. Shuklavs State Through C.B.I [1980 AIR 962, 1980 SCR (2) 380, 1980 SC1382  (81,110),   1981 SC 723      (9),   1988 SC 922         (24)] have held that right of at least one appeal is an essential ingredient of Article 21.   The Act is liable to be construed in consonance with the right to life as enshrined in Article 21.  Therefore, the jurisdiction to invoke Section 15 of the Act ought to be construed as one vested in the High Court so that its order could be taken in appeal to the Supreme Court. At any rate, where the Supreme Court invokes its jurisdiction under Section 15, assuming that such jurisdiction is invested in it, then a mechanism for an intra-Court appeal has to be brought into existence to meet the requirement of Part III of the Constitution.  Against the order dated 9^th May, 2017 there is no forum of appeal by which the manifest error could be rectified.
27. In the circumstances the Petitioner feels it only appropriate to seek a declaration that the Contempt of Courts Act is unconstitutional and void as it is against the principles of natural justice, namely, protection against self-incrimination, presumption of innocence, right to be told the allegations constituting the charge, the evidence and materials based on which the allegation is founded, opportunity to contradict the allegations, particularly the right of cross-examination, opportunity to adduce evidence in support of one’s defence and right of silence to be read into the statute.

 

28. It is a fundamental principle of natural justice that accusation or claim against a subject ought to be proved by the party making the accusation of commission of an offence or other obligation or liability by his own means and men and ought not to be wrung out of him, the subject.  The said principle is contained in the maxim accusarenemo se debet nisi coramdeo, namely, nobody is bound to incriminate himself; so too in nemoteneturseipsumaccusare– no one shall be compelled to bear witness against himself.  The only exception to the above is found in the Law of Equity, for instance, as provided in Order XI Rule 12 of the Civil Procedure Code, that the Court of Equity will deviate from the burden of proof and permit a plaintiff to prove the case against the defendant by means of the documents in possession of the defendant where if such access to the documents is not provided justice will be defeated.  The law of contempt is a cathartic jurisdiction.  Strictly speaking, contempt of Court proceeding is neither a civil nor a criminal proceeding.  It is a proceeding sui generis.   It has its foundation in the Canon Law as practiced in the Dark Ages.  The profound purpose of the Contempt of Court law is to purify the corrupt mind and secure purging of a tainted soul and nothing else.  The jurisprudence of contempt, a legacy of the Dark Ages, can have no application to a modern constitutional democracy.  In no civil law country it exists.  In all common law jurisprudence, except in India, Pakistan and Bangladesh, the concept of contempt of Court and scandalization thereof has become obsolete more than a century before.  The Contempt of Courts Act is against Part III of the Constitution, for, it is against the first principle of natural justice, as aforesaid, which stands enshrined in Articles 14, 20(3) and 21 of the Constitution.  Article 20(3) in express terms provides that “no person accused of any offence shall be compelled to be a witness against himself”.  The procedure contemplated in Sections 2(c), 12 and 15 of the Act is nothing but an inquisitorial one.  Here the Court acts as a Prosecutor and Judge, which is in conflict with the doctrine of nemopotestessesimul actor etjudex–“no one can be at once suitor and Judge”.
29. Having broadly dealt with the Sections of the Contempt of Courts Act, as aforesaid, it is absolutely necessary to impugn the said Sections, briefly though, separately.  Section 2(c) of the said Act provides thus:

“2. (c)“Criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which –

2. (i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or
3. (ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
4. (iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.”

The concept of contempt of Court as provided in Section 2(c) is against Part III and the basic structure of the Constitution; so too against all universal declarations of freedom and liberty.  It is draconian and diabolic.

Section 12 of the said Act reads thus:

“Top of Form

Bottom of Form

12. Punishment for contempt of court.

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of court may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

Explanation – An apology shall not be rejected merely on the ground that it is qualified or conditional if the accused makes it bona fide.

(2) Notwithstanding anything contained in any law for the time being in force, no court shall impose a sentence in excess of that specified in sub section for any contempt either in respect of itself or of a court subordinate to it.

…………………………………………….……………………………………………………………………………………………………………………………….”

 

30. Section 12, quoted above, which imposes punishment for somebody who dares to speak the truth, stands for transparency, in actual practice means compelling an upright person to tender apology for what he has spoken and is against Part III and the basic structure of the Constitution.
31. The procedure contemplated under Section 17(5) of the Act, quoted above, is against all canons of justice, fair play, the first principle of natural justice and diabolic; it is nothing but statutory incorporation of the Star Chambers of the Dark Ages.  It means punishment without an inquiry, by wringing evidence out of an accused by compelling him to make affidavit in his evidence, whereas principles of natural justice demands that evidence against a subject ought not to be wrung out of him but the offence has to be proved against him by other men and means, while the subject/accused is entitled to absolute silence.  Section 15 of the Act, quoted above, is also in gross conflict with Part III of the Constitution, is against the principles of natural justice, diabolic, arbitrary and unjust.
32. Apart from the challenge to the constitutionality of the Contempt of Courts Act, 1971 and Section 3 of the Judges Protection Act, 1985, in the instant case, the following fundamental questions of law arise for consideration:-

PART I

 

What is the meaning and import of Article 13(2) of the Constitution where a judgment and decree or order of this Hon’ble Court in a contempt of Court proceeding is sought to be declared as null and void in a collateral proceeding under Article 32, as in the instant case?

(2)      Is a judicial order which violates fundamental rights immune from being declared as null and void in terms of Article 13(2)?

(3)      Does Article 13(2) make any difference between a judgment or decree or order, which is null and void, being vitiated by errors apparent on the face of the record and thus one rendered null and void in common law and those judgments and orders which are not ex facie null and void, being vitiated by errors apparent on the face of the record, but violate fundamental rights for errors within jurisdiction, on appreciation of facts and evidence, distinct from errors which are apparent on the face of the record, errors going into jurisdiction, nay, jurisdictional errors distinct from errors within jurisdiction, which a Court is free to make?

(4)      In other words, does Article 13(2), which will render void an order which violates fundamental rights, which takes within its ambit errors on facts and appreciation of evidence which a Judge is free to make, obliterate the doctrine of estoppel res judicata, popularly known as res judicata?

 

(5)      Has Article 13(2) struck at the root of the concepts of finality, authoritativeness and res judicata and has it placed predominance of fundamental rights over res judicata?

 

(6)      What difference Article 13(2) has brought to common law which is the law of the land by virtue of Article 372(2) in express terms inasmuch as even in the absence of Article 13(2) if a judgment of a Court or Tribunal, no matter how superior or inferior it could be, is vitiated by errors apparent on the face of the record, one rendered void ab initio, it is amenable for correction by way of a collateral proceeding, nay, a suit, review; so too an appeal, if the statute provides for one.

 

(7)      Is it that the prohibition under Article 13(2) expands the concept of nullity even beyond the common law of errors apparent on the face of the record and takes within its compass errors within jurisdiction, even of facts and appreciation of evidence which, in common law, a Judge is free to make and is not amenable for challenge in a collateral proceeding or review, but only by way of an appeal, provided the statute prescribes one.

 

(8)      Does the term state in article 12 take within its ambit the higher judiciary and if not the justification if any for such exclusion ?

 

(9)       If the higher judiciary fall within the ambit of the word “state” will not the “law declared by the Supreme Court” nay the precedents if in violation of Article 13(2) of the Constitution, rendered void ab initio?

 

PART II

 

(10)    The Contempt of Courts Act being not a legislation which is unoflatu, not one which is a Code in itself, are not the elementary principles of criminal jurisprudence, namely, (a) the presumption of innocence until proved guilty, (b) the obligation of the prosecution to prove the guilt of the accused through its own men and means, (c) investing the accused with the absolute protection against self-incrimination, (d) obligation to observe the principles of natural justice, namely, the accused to be told in clear terms the offence with which he is charged, the allegations constituting the charge, the materials and evidence based on which the allegations are founded, an opportunity to contradict the evidence appearing against him – of which the important tool is the right of cross-examination – (e) the right to adduce evidence in support of his defence, (f) the right to be tried by an independent and impartial Tribunal, nay, the observance of the principles of natural justice viz. nemodebetessejudex in propriacausa and audialterampartem, which find embodiment in the Constitution of India, the Code of Criminal Procedure and the Evidence Act, as mentioned below:-

Protection against self-incrimination [Articles 20(3), 21, 14 of the Constitution, Sections 161(2) and 164 Cr.P.C. and Section 132 of the Evidence Act.]

Protection against guilt being wrung out of the accused, but to be proved by other men and means and he being told the case to be met and afforded due opportunity to defend himself (Sections 101 to 104 of the Evidence Act and Sections 173, 207 and 208 Cr.P.C.)

Contents of the charge (Section 211 Cr.P.C.)

Opening of the case for prosecution (Section 226 Cr.P.C.

Discharge (Section 227 Cr.P.C.)

Framing of charge (Section 228 Cr.P.C.)

Evidence of prosecution (Section 231 Cr.P.C.)

Defence evidence (Section 243 Cr.P.C.)

Opportunity to the accused to explain the evidence against him (Section 313 Cr.P.C.)

Impartial Tribunal (Section 479 Cr.P.C.)

(11)    If the requirements of the elementary principles of criminal jurisprudence are not liable to be read into the Contempt of Courts Act, which would mean reading into the said Act the aforesaid and other provisions of the Cr.P.C. which provides for a fair trial, then is not the said Act liable to be declared as unconstitutional, null and void?  Is not the Court duty bound to adopt the first course of action, namely, reading into the Contempt of Courts Act the elementary principles of criminal jurisprudence, which finds expression in the Cr.P.C., Evidence Act and the Constitution of India, particularly Articles 13(2), 14, 19, 20(3) and 21, and the aforesaid provisions of the Cr.P.C. and the Evidence Act?

Part III

 

(12)    It is no longer a fundamental principle of law that right of appeal is a creation of statute and nobody has a vested right of appeal.  The said principle finds embodiment in Article 13(2) of the Constitution which provides as under:-

 

“13. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

 

 

33. Article 13(2), therefore, has chosen to give predominance to fundamental rights over even the doctrine of res judicata. The concept that judicial decisions are final and binding, howsoever erroneous they could be, namely, the doctrine of res judicata, is the very foundation of the concept of rule of law.  The term “law” in Article 13 means decrees, judgments and orders of Courts and Tribunals and, therefore, decrees, judgments and orders of Courts and Tribunals, even of the highest Court of the land, the Supreme Court, if they are in violation of the fundamental rights are rendered void ab initio.  In the instant case, the Petitioner has been convicted for contempt of Court and sentenced to undergo imprisonment for six months by this Hon’ble Court in a proceeding which completely lacks jurisdiction, is without observing the principles of natural justice – without even a charge being framed.  The said order, therefore, is undoubtedly void.  However, there is no forum of appeal available to the Petitioner where the said order could be challenged.  The Petitioner who has been subjected to grave injustice is denied of a forum to seek correction of the judgment and order in question, which makes the Act unconstitutional and void inasmuch as it is well settled in law that the right to life under Article 21 takes within its ambit a procedure which ought to be just, fair and reasonable.  The Act, in so far as it does not provide for an appeal against an order of conviction and sentence, as in the instant case, at the hands of the Supreme Court is violative of Article 21.  Though the right of appeal, which would mean a complete review on facts and law against a conviction and sentence in a criminal case universally, is an essential ingredient of Article 21, there are not many judgments at the hands of the Supreme Court and High Courts in the realm or province of the said jurisprudence.  Therefore, the Petitioner begs to submit that the issue remains res integra.  The question, therefore, the Petitioner begs to submit, for the consideration of this Hon’ble Court is whether or not the right to life under Article 21 takes within its ambit a right of appeal, both on facts and law, invariably in all criminal cases where any form of sentence is imposed.  The necessary corollary of the said question, if it could be answered in the affirmative that the right of appeal is an essential ingredient of Article 21, is that is not the Act unconstitutional and void in so far as it does not provide for a right of appeal where the conviction and sentence is at the hands of the Supreme Court of India.
34. The order dated 9^th May, 2017 passed by the Supreme Court convicting and sentencing the Petitioner to undergo imprisonment for six months without pronouncing a judgment stating the reasons for which he was found guilty for contempt of Court, for, it was said in the said order that the detailed judgment would be pronounced later, was uploaded on the website of the Court late at night on 9^th May, 2017. The Petitioner in no loss of time got prepared (i) a substantive Writ Petition for a declaration that the Contempt of Courts Act is unconstitutional, being in gross violation of the principles of natural justice and elementary principles of criminal jurisprudence; that if the said Act were to be held as constitutional then observance of the principles of natural justice are to be read into the same; that the entire proceedings leading to the sentencing of the Petitioner without even a charge sheet being framed and without a judgment being pronounced are void ab initio; that the order dated 8^th February, 2017 by which the Petitioner’s judicial and administrative powers as a Judge of the High Court were taken away amounted to his “removal from office” which only the President of India could do and that too by impeachment on a motion which has received the assent of 50% of the total strength of the Parliament and 2/3^rd of the members present and voting and (ii) an application for recall of the order dated 9^th May, 2017, the same being rendered void ab-initio.
35. Registration of cases in the Supreme Court, to an extent, is computerized. There are only two provisions for registration of cases in terms of the software in vogue, namely, (a) through an Advocate on Record (AOR) and (b) by Party in Person.  Since as many as 30 AORs, whom the Petitioner’s counsel approached for institution of the aforesaid petitions declined to appear for the Petitioner as they felt that doing so will invite the displeasure of the Hon’ble CJI and other Hon’ble Judges, the Petitioner’s counsel Shri Mathews J. Nedumpara and Shri A.C. Philip had to mention the matter before the Hon’ble CJI at 4.00 p.m. on 11^th May, 2017 before His Lordship was to rise from the Bench hearing the triple talaq case.  The Hon’ble CJI was gracious enough to receive the two petitions tendered.  However, by oversight, while the original of the application for recall was handed over, instead of the original of the Writ Petition, what was tendered was its copy.  The counsel for the Petitioner on noticing the said omission sought to tender the original with the Registry which declined to accept the same.  Thereupon it was tendered to the Registrar General who too refused to accept the same and the Petitioner’s counsel had to again mention the matter before the Hon’ble CJI at 1.00 p.m. on 12^th May, 2017.  Though the Hon’ble CJI was pleased to direct the Registry to receive the original of the Writ Petition, the Registry again declined to receive the same because the oral direction of the Hon’ble CJI was not communicated, leaving the Petitioner’s counsel with no option but to again mention the matter before the Hon’ble CJI, which he did at 2.00 p.m. on the same day.  Thereafter the Registry received the original of the Writ Petition.  However, since neither Shri Nedumpara nor Shri Philip, counsel for the Petitioner, is an AOR, the Writ Petition was eventually registered as filed by Party-in-Person.
36. In view of the impending arrest of the Petitioner in execution of the order of the Supreme Court, the counsel for the Petitioner were left with no option than to mention the matter before the Hon’ble CJI in the open Court at 10.30 a.m. on 15^th May, 2017. The Hon’ble CJI directed the Petitioner’s counsel to approach the Registry.  The Petitioner’s counsel one again approached the Registrar (Judicial) who refused to give any indication as to when the case would be listed and upon his saying that constitution of a Bench is the prerogative of the Hon’ble CJI and he could do nothing about it, the Petitioner’s counsel one again mentioned the matter before the Hon’ble CJI on 15^th May, 2017 at 2.00 p.m. when the Constitution Bench assembled.  The Hon’ble CJI was pleased to decline the plea of the Petitioner’s counsel.
37. While matters stood thus, the Petitioner’s counsel was telephonically informed by the Registry of the Supreme Court that it has decided to decline registration of the Writ Petition.  The Assistant Registrar by letter bearing D-No.2427/2017/X dated 15^th May, 2017 communicated the decision dated 12^th May, 2017 of the Registrar (Judicial) declining registration of the Writ Petition invoking Order XV Rule 5 of the Supreme Court Rules, 2013.  Copies of the said covering letter bearing D-No.2427/2017/X  both dated 15^th May, 2017 and the decision dated 12^th May, 2017 of the Registrar (Judicial-I) are produced as Annexure- “H” (collectively)( at pages __ to ___).
38. The question as to whether the order dated 8^th February, 2017 passed by the Supreme Court issuing show cause notice to the Petitioner culminating in the order dated 9^th May, 2017 convicting and sentencing the Petitioner for contempt of Court could be challenged before the Supreme Court itself in a “collateral proceeding” invoking Article 32 of the Constitution on the ground that the said order is violative of Part III of the Constitution and one rendered void in terms of Article 13(2) is a pure question of law concerning the very jurisdiction of the Supreme Court under Article 32.  It was not a question which is ministerial or clerical in nature which the Registry of the Supreme Court could have decided.  The question as to whether the Contempt of Courts Act, 1971 is unconstitutional or not or whether the elementary principles of natural justice/criminal jurisprudence could be read into the said Act too is a clear question of law, which the Registry of the Supreme Court could not have decided.  In the contempt of Court proceeding initiated against the Petitioner, the constitutional validity of the Act was no way involved.  Yet, the Registrar decided not to register it, manifestly failing to notice that the Petitioner has an undeniable fundamental and legal right to approach a constitutional Court for a declaration that the Contempt of Courts Act, invoking which he has been de facto removed from office as a Judge of the High Court of Calcutta, is unconstitutional.  But the Registrar (Judicial), for reasons difficult to be fathomed, assumed to himself the power of the Supreme Court to grant or deny the relief sought for by the Petitioner.  The Registrar acted as the Supreme Court itself and that too without hearing the Petitioner.  It is difficult to conceive that when the Petitioner has approached the Supreme Court with a substantive Writ Petition seeking a declaration that the very Contempt of Court Act is unconstitutional, his plea could be buried by the Registrar without even hearing him.  Order XV Rule 5 of the Supreme Court Rules, 2013, which empowers the Registrar to do so, is extracted below for ready reference:-

“5.    The Registrar may refuse to receive a petition on the ground that it discloses no reasonable cause or is frivolous or contains scandalous matter but the petitioner may within fifteen days of the making of such order, appeal by way of motion, from such refusal to the Court.”

39. Order XV, Rule 5 of the Supreme Court Rules, 2013, quoted above, is unconstitutional and void. It has meant substitution of the Supreme Court by its Registrar (Judicial-I), the Registrar acting as if he is the Supreme Court.  In short, while the Writ Petition instituted by the Petitioner under Article 32 is declined to be even registered, the issues raised therein remain to be adjudicated.
40. A High Court, under Article 226 of the Constitution has far greater power than even that of the Supreme Court under Article 32. The Petitioner felt it appropriate to institute a petition under Article 32 challenging the constitutional validity of the Contempt of Courts Act and the orders passed by the Seven-Judge Bench invoking the provisions of the said Act since the orders were at the hands of the Supreme Court.  Had the Petitioner approached this Hon’ble Court instead of the Supreme Court, it may have carried a perception that the Petitioner despite being a Judge of the High Court has chosen to challenge the orders of the Supreme Court in the High Court, which in the eye of the common man is subordinate to the Supreme Court, while under the constitutional scheme it is a Court of co-ordinate jurisdiction when it comes to enforcement of fundamental and legal rights guaranteed under Part III of the Constitution.
41. The Registrar (Judicial-I) of the Supreme Court of India, Respondent No.5 herein, whose order is impugned in the instant Writ Petition, resides within the territorial limits of this Hon’ble Court; the order dated 12^th May, 2017 passed by him, which was communicated to the Petitioner’s counsel by the Assistant Registrar by his letter dated 15^th May, 2017, was issued in Delhi; the cause of action has also arisen within the territorial limits of this Hon’ble Court. The impugned order dated 12^th May, 2017 is, therefore, amenable to the jurisdiction of this Hon’ble Court under Article 226 of the Constitution.  Hence, the instant Writ Petition.
42. Hence, the instant Writ Petition under Article 226 of the Constitution challenging the constitutional validity of Sections 2(c), 12, 14 and 15 of the Contempt of Courts Act, 1971, Order XV Rule 5 , Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013, on the following, amongst other:-

 

GROUNDS

 

Grounds in support of the reliefs sought for are fairly elaborated in the statement of facts above and hence are not repeated.  The Petitioner respectfully submits that paragraphs 1 to 17 hereinabove may be read and treated as the grounds in support of the instant Writ Petition. Nonetheless, the Petitioner begs to add that:

1. The Contempt of Courts Act, 1971 is nothing but the codification of the law of contempt which it was felt “somewhat uncertain undefined and unsatisfactory” and that there is a need to balance the same with the constitutional ethos of personal liberty and the right to freedom of expression. The said Act is a cathartic jurisprudence which belonged to the Dark Ages, the era of inquisition and torture, distinct from the classical Roman Law which constitutes the foundation of the modern jurisprudence.  Though the Star Chambers came to an end, the contempt jurisdiction continued to prevail in English law till in McLeod St. Aubyn, (1899) AC 549, at p. 561 the House of Lords held that it is obsolete in so far as England is concerned.  However, in so far as small British colonies were concerned, the law of contempt continued to be in force with all its brutality.  At the time when the Contempt of C0ourts Act, 1971 was enacted, justification by truth was not a defence, but would have amounted to further contempt; the contemnor had no right against self-incrimination; no presumption of innocence; no right to be told the allegations constituting the charge; no right to be told the materials and evidence based on which the allegations are founded; no right to contradict the same by cross-examination or to adduce evidence in support of his defence.  The principle adopted by the Star Chambers, which considered contempt as a cathartic jurisdiction to reform the soul of the contemnor, which is possible only where he is remorseful of his guilt, seeks atonement and thereby purges himself of the contempt, was the law.  Apology was the only option open to a person accused of contempt.  Though the Statement of Objects and Reasons of the said Act states that “the existing law relating to contempt of Courts is somewhat uncertain undefined and unsatisfactory” and there is a need for safeguarding “the right to personal liberty and the right to freedom of expression” simultaneous with the “status and dignity of Courts and interests of administration of justice” the Act failed to achieve the said objectives.  The casualty was the right to personal liberty and the right to freedom of expression.  Though it was conceded that judgments could be criticized in a respectful and dignified manner, the dividing line of what is respectful and dignified criticism and what constitutes “scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court, or prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner” became too uncertain.  As a result, upright men, often outspoken, who fearlessly expressed their views, were prosecuted and punished under the Contempt of Courts Act.  The Contempt of Courts Act, 1971 far from being able to accomplish the twin objects which are mutually conflicting, namely, the need to protect personal liberty and freedom of expression; so too safeguarding the “status and dignity of Courts and interests of administration of justice”, completely failed.  It meant that in a country of 129 crore people, there is no literature, no cinema, no drama, no caricature, nothing, which is critical of the judicial department of the State and those who ventured to bring to the public domain the deficiencies and shortcomings of the system by whatever means, literature, cinema, drama, caricature etc., had to face proceedings under the Act.  The need to abolish/repeal the Contempt of Courts Act, 1971 or to interpret its provisions in consonance with the elementary principles of natural justice, namely, protection against self-incrimination; presumption of innocence; right to be told the allegations constituting the charge; right to be told the materials and evidence based on which the allegations are founded; right to contradict the materials by cross-examination and to adduce evidence in support of his defence has come.  It is only appropriate to quote Victor Hugo: “No army can stop an idea whose time has come”.
2. Petitioners crave leave of this Hon’ble Court to add to, alter, amend and/or modify any of the aforesaid grounds as and when required.
3. The instant Writ is not barred by the by the doctrine of estoppel res judicata.
4. The Petitioners states that theyhave no other efficacious alternative remedy than to prefer the instant Writ Petition.
5. The petitioner has not filed any other petition, appeal or application other than the one mentioned in this petition, before this Hon’ble Court or any other High Court seeking similar reliefs as are sought in this Writ Petition.

P R A Y E R

 

It is, therefore prayed, this Hon’ble Court may graciously be pleased to:

1. declare that the notice dated 08/02/2017 issued against the Petitioner to show cause as to why proceedings under the Contempt of Courts Act, 1971 should not be initiated against him and all further proceedings in furtherance thereof, culminating in the order dated 9^th May, 2017 (Annexure D at pages __ to ___), are unconstitutional and void inasmuch as they are against the principles of natural justice;
2. declare that the Contempt of Courts Act, 1971, and in particular Sections 2(c), 12, 14(3), 15 and 17(5) thereof, is unconstitutional and void inasmuch as the said Act and the said Sections thereof are violative of Part III of the Constitution, particularly Articles 14, 19, 20 and 21 thereof; so too the principles of natural justice, presumption of innocence and the principles contained in the maxims nemo tenebatur prodere seipsum“ evidence against a subject ought not to be wrung out of him but the offence has to be proved against him by other men and means”, accusare nemo se debet nisi coramdeo, “nobody is bound to incriminate himself” and nemo tenetur seipsum accusare “no one shall be compelled to bear witness against himself”.
3. In the alternative and without prejudice to prayer (a) above, declare that the elementary principles of criminal jurisprudence, namely, that presumption of innocence and the principles contained in the maxims nemo tenebatur prodere seipsum“ evidence against a subject ought not to be wrung out of him but the offence has to be proved against him by other men and means”, accusare nemo se debet nisi coramdeo, “nobody is bound to incriminate himself” and nemo tenetur seipsum accusare “no one shall be compelled to bear witness against himself”, be read into the statute;
4. declare that Clause (b) of Section 13 of the Contempt of Courts Act, 1971, which provides that “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”, is unconstitutional and void inasmuch as it does not provide justification by truth as an absolute defence and the person who relies on the said defence is all likely to be proceeded against for aggravated contempt, for, the truth which he pleads in defence of his innocence offers no protection from being not constituting to be an offence of contempt/aggravated contempt;
5. declare that the law declared by the Supreme Court shall be binding on all courts within the territory of India, nay, the judgments of the Supreme Court which constitute to be precedents and thus often described as the law of the land in terms of Article 141 of the Constitution constitute to be law of the land only where they are in consonance with Part III of the Constitution and not binding precedents where such “law declared by the Supreme Court of India” is in violation of Part III of the Constitution and thus null and void; so too declare that the Supreme Court and the High Courts fall within the ambit of the word “State” as defined in Article 12 of the Constitution;
6. Declare that the right to life within the meaning of Article 21 of the Constitution of India takes within its ambit a right of appeal, which will invest in a person convicted for a criminal offence, a right to seek complete re-appreciation of the case, both on facts and law, by a superior Court or Tribunal and where the conviction is at the hands of the Supreme Court as a fact-finding body, then an intra-Court appeal to a larger Bench of the very same Court itself;
7. declare as a corollary to prayer (g) above that the Contempt of Courts Act, 1971, in so far as it does not provide for an intra-Court appeal against a conviction and sentence at the hands of the Supreme Court of India as a fact-finding Court, is unconstitutional and void inasmuch as the said Act does not provide for a provision of appeal against its own order of conviction and sentence;
8. To declare that Respondent No.5, Registrar (Judicial-I), Supreme Court of India, who has passed the impugned order dated 12^th May, 2017 (Annexure –“H”, (From Pages___to __) declining registration of the Writ Petition at the hands of the Petitioner under Article 32 of the Constitution through his counsel is residing/situate within the jurisdiction of this Hon’ble Court and this Hon’ble Court is competent to entertain and adjudicate the instant Writ Petition;
9. To declare that Order XV Rule 5 of the Supreme Court Rules, 2013 is unconstitutional and void inasmuch as it has meant substitution of the Supreme Court by its Respondent No.5, Registrar (Judicial-I), the Registrar(J-I) acting as if he is the Supreme Court;
10. To declare that Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013, which permits registration of applications/petitions only at the hands of an Advocate on Record of the Supreme Court is ultra vires section 30 of the Advocates Act,1961, unconstitutional and void and, at any rate, where no Advocate on Record is forthcoming to be on record, an application/petition through any Advocate who is a member of a State Bar Council deserves to be entertained;
11. To declare that Section 30 of the Advocates Act, 1961, which came into effect from 15/06/2011, which invest a right in every Advocate enrolled with a State Bar Council, to practice in any Court or Tribunal in India, including the Supreme Court of India, will supervene Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013, which provides that applications/petitions can be filed only through an Advocate on Record of the Supreme Court;
12. permit the Petitioner to rectify errors, if any, innocently occurred either in the pleadings or prayers since the instant Writ Petition is prepared and instituted post haste.
13. stay all further proceedings pursuant to the order dated 9^th May, 2017 (Annexure d at pages __ to ___);
14. to pass any other or as this Hon’ble Court may deem just and proper in the interest of justice in the facts and circumstances of the present case.

Petitioner

THROUGH:

(Mathews J.Nedumpara)

(A.C.Philip)

&

(M.Malaviya)

Advocates for the Petitioner

Advocate for the Petitioner

304, 3rd Floor, Hari Chambers,

Near. Old Customs House, Fort, Mumbai- 400001.

(PH;022-22626634,Mobile: , 09820535428, & 09769110823   )          Mob. 9769110823

New Delhi.

__.05.2017

IN THE HIGH COURT OF DELHI AT NEW DELHI

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.  ____ OF 2017

 

BETWEEN

Justice C.S.Karnan                                            …PETITIONER
Versus

Supreme Court of India

through its Registrar

General and Others                                  …RESPONDENTS

 

A F F I D A V I T

I, Justice C.S.Karnan, aged about 61 years, S/o.Mr.Swaminathan, Residing at: 1/GB, Rosedale Towers, New Town, Kolkotta Presently at Chennai, do hereby solemnly swear and affirm as follows:-

1. That I am thePetitioner in the above Writ Petition. I am fully conversant with the facts and circumstances of the case and hence, I am competent to swear this affidavit.
2. I state that I have read and understood the contents of the accompanying petition paragraph 1 to 38   at page 1 to  34, Synopsis & List of dates at page B to C, The contents of the same are true and correct to the best of my knowledge and belief.
3.  I state that that the Annexure, if any, filed with the Petition are true and correct copies of their respective originals.

 

Place: Chennai

DEPONENT

Verification

 

I, the Deponent above named, do hereby verify and state that the contents of the Affidavit are true and correct to my knowledge and belief. No part of it is false and nothing has been concealed there from.

 

Verified at Chennai on this the ___^th  day of May, 2017.

 

 

Place: Chennai                                                DEPONENT

 

 

 

 

A.C.PHILIP

Advocate

Office   : Chambers No.47, G.L.Sanghi Block, Supreme Court Campus, New Delhi -110001.

Ph       :01122146145

Mobile  : 09820535428, &09769110823

E Mail  : pradeeparingada@gmail.com

 

To

Ld.Registrar,

High Court of Delhi,

New Delhi-1.

 

Sub: Curing defects of  WP(C)(Diary) No.259554/2017

 

Sir,

The registry has pointed out the defects in the petition. The following may please be considered so as to cure the defects, enabling the petition to be numbered.

 

The question of maintainability is raised by way of the objections.

The instant is a petition under Article 226 of the Constitution of India, especially invoking the judicial review of statutory provisions, as enumerated in the petition.  The Order XV, Rule 5, Order-V, Rule 1(b) and Rule-7(c) of the Supreme Court Rules, 2013,  of the Supreme Court Rules, 2013, are  sought to be declared as unconstitutional and void.  This Hon’ble Court undoubtedly holds the territorial and subjective jurisdiction to adjudicate the instant petition and to grant the reliefs sought for.  Further the question of maintainability, a judicial question, the one which will go to the root of the matter if raised either by the Hon’ble Court or by the respondents, the petitioners’ Counsel, Shri.Mathews J. Nedumpara will be convincing the Hon’ble Court on the said questions. Hence the matter may please be placed before the Hon’ble Court for deciding the issue of maintainability, if further raised.

 

Hence please ignore the said defects.

Thanking you in anticipation,

 

Yours faithfully,

New Delhi

__.06.2017

(A.C.Philip)

Advocate