Why Justice Krishna Iyer said “Contempt power cipherises its user”


Mathews J. Nedumpara 8.2.2023 / [09/02, 00:51] Mathews J Nedumpara:

1. What prompts me to pen these lines are the news reports that the Kerala High Court has initiated suo motu contempt proceedings against Shri K.M Shahjahan, Private Secretary to Shri V.S Achuthanandan, the former Chief Minister of Kerala. Shri K.M Shahjahan has reportedly alleged that it was not merely, Adv Saiby, the President of the Kerala High Court Advocate Association who was involved in the scandal of bribe for favorable orders in the Kerala High Court, but even the judges themselves. This seems like nothing more than stating the obvious when there exists an allegation of corruption. How can there be a bribe if there is no taker?

2. The High Court, in the draft charges framed against Shri Shahjahan, has accused him of tarnishing the integrity of the judge whom he had named. The Court further took the view that his speech amounted to “scandalizing the authority of the court and interfering with the due course of judicial proceedings”. The report would certainly shock the conscience of the common man. For me, it is rather painful. A prestigious High Court such as my own alma mater, the Kerala High Court, which has produced great judges like Justice Krishna Iyer and Justice KK Mathew, in taking suo motu contempt by scandalization has unwittingly allowed itself to go back to the days of the ‘star chambers’. In the Dark Ages, heresy, namely, speaking against the doctrines of the church, particularly, blasphemy, atheism or any other damnable doctrines and opinion, was punishable with death, namely, burning at the stakes. It was abolished by an Act of Parliament only in 1677. In England, the concept of contempt of court by scandalization practically came to an end in the 19th century. However, in the British Colonies, it survived even after its death. Unfortunately, by virtue of Articles 129 and 215 of the Constitution of India came to expressly vest the power of contempt in the Supreme Court and High Courts as a court of record. The Parliament too, by enacting the Contempt of Courts Act, 1971, gave it a statutory recognition, though in enacting the Contempt of Courts Act, the intention of the Parliament was to codify the law of contempt which is draconian and uncertain, and to limit and regulate its exercise.

3. Chief Justice Gogoi quite recently said in the public domain that “corruption has become a way of life, an acceptable way of life and that the Judges do not drop from heaven”. There is absolutely no doubt that the entire tenacles of cancer that is corruption, has spread over the entire body politics of our nation and that the judiciary is no exception to that. When it comes to corruption in the political executive and bureaucracy, a citizen and the press, the public, can fearlessly raise the issue. There are the opposition parties eager to raise it. The new tribes of PIL wallas are there to seek even court monitored investigation. There is the Anti-Corruption Bureau, Lokpal, Lokayukta. Countless are the number of Chief Ministers, Ministers, MPs, who are convicted of corruption. At least two former Chief Ministers, Lalu Prasad and Om Prakash Chauthala are in jail. The fear of arrest and prosecution certainly acts as a deterrent. On the contrary, Judges face absolutely no risk of prosecution unless they are caught red handed as in the case of Nirmal Yadav, former Judge of the Punjab & Haryana High Court who was caught in the “cash at the judges gate scandal of 2008”. There are allegations of corruption against several former judges and Chief Justices of the Supreme Court and High Courts. None of them have had to face any enquiry or consequence. The exception is the in-house enquiry conducted by judges themselves in a few cases, which is no enquiry at all. On the contrary, it was those who made allegations who had to face the music. Justice Karnan was sentenced to six months imprisonment for making “wild and scandalous allegations” against the judges of the Supreme Court and High Court. Many lesser mortals have been convicted and sentenced to jail. All this is happening in the 21st century where it is universally recognized that all power, including judicial power, is a trust and that those who hold it are accountable to the people.
Corruption, specifically, judicial corruption, has been considered to be a particularly heinous crime since time immemorial and those who were found guilty have been put to death. The great Lord Chancellor Francis Bacon was convicted for bribery and sentenced, though later released by the King. From time immemorial judges were required, like Ceaser’s wife, to be above suspicion.

4. While allegations of corruption against judges were extremely rare in the initial years after independence, the case today is different. Wherever one goes, there are hushed talks of corruption and malpractice, particularly involving the immediate relatives of judges. The collegium system of appointment where judges appoint themselves and the system where judges designate senior advocates has aggravated the situation. The bench and the bar, which practically means only a few families, has made it difficult, nay impossible, to prevent malpractices. Blood, after all, is said to be thicker than water.

5. The allegations which Shri Shahjahan has made against the judges of the Kerala High Court and the issuance of suo motu contempt proceedings against him is only the tip of the iceberg of the lack of accountability and probity which our justice delivery system faces today. The contempt law is invoked on the sole premise that without it the majesty and dignity of the institution of judiciary cannot be maintained and that the people’s trust in it will be eroded, nay, that the very concept of rule of law will be at jeopardy. Nothing could be farther from truth than this misconception. By invoking the draconian contempt law to silence critics, the respectability of the judiciary cannot be preserved. Neither the Latin American nor the European civil law systems have the law of contempt. In the United States, the contempt of court by scandalization is no longer in use. It only exists in India, Pakistan, Bangladesh, Burma and Singapore. Law of contempt is contrary to the United Nations human rights conventions. It is against the first principles of natural justice which says that no one shall be a prosecutor and a judge at once. Article 20 (3) protects a citizen against self-incrimination. In contempt of court proceedings, the contemnor has to adduce evidence to establish his innocence. He is required to file an affidavit in support of his defense.

6. I have filed writ petitions in the Kerala High Court and in the Bombay High Court for a declaration that the Contempt of Courts Act is unconstitutional being violative of the fundamental rights, the same were admitted and have been remaining pending for the last five years.

Mathews J Nedumpara
National Lawyers’ Campaign For Judicial Transparency and Reforms
[11/03, 20:06] Mathews J Nedumpara: *Mathews J. Nedumpara*

*OPEN LETTER – A Long Overdue Apology owed by the Institution of Judiciary*

*Hon’ble Shri Justice Chandrachud*,
The Chief Justice of India
Also to,
The judges of the Bombay High Court

11th March, 2023

May it please your lordship,

Sub: The institution of judiciary owes an apology to me which I won’t insist on or even expect, but I certainly would do when it comes to the thousands of slumdwellers, mothers with their new born infants being thrown out of their homes onto the streets, with all their belongings being confiscated or bulldozed.

1. What prompts me to address this open letter, in near telegraphic language, is my passion for the institution of judiciary, of which every lawyer, nay, citizen is a party in its real sense. I do not think that there could be two opinions on the fact that our judiciary desperately requires reforms, revolutionary in many a sense.

2. The foundations of our institutions are strong. Because the legal system which we inherited from the British, which has its roots in classical Roman law, in fact is the foundation of the legal systems of all developed nations. We, the bar and the bench, our elected representatives and the press are only to be faulted for the current extremely agonizing state of affairs.

3. Any system of governance or power which does not allow itself to be criticized, subject itself to public scrutiny tends to be tyrannical, and ultimately, will collapse. The constitution guarantees freedom of thought, speech and expression, and the core thereof is the right to criticize the government and other public authorities, including the judiciary, the trustees of the legislative, executive and judicial powers of the sovereign.

4. I started a movement against corruption during the days of my practice in the FERA Tribunal (2000-2006). The Delhi High Court removed the Chairman and members of the FERA Tribunal not on the grounds of corruption which could not have been successfully raised, but on our technical plea of want of qualification. But the Supreme Court reversed the order and they were reinstated. I had to wind up my practice in the FERA Tribunal in Delhi and come to Bombay to appear before the adjudicating authorities. From FERA practice to banking.

5. Some of my clerks were slumdwellers. I had to move a petition at the residence of the then Chief Justice Mohit Shah when one of my clerk’s shanties came to be demolished. I led half a dozen women with their new born infants some of them just two and four weeks, to the residence of the Chief Justice. The Chief Justice referred the matter to your Lordship. That was in 2010. My first appearance before your Lordship. Thereafter, I had appeared before your Lordship and different judges of the Bombay High Court, sometimes even seeking the constitution of a bench on a holiday when the authorities armed with bulldozers and an army of police came to demolish the shanties of the poor without any prior notice. I believe, between 2010 and now, not less than 80,000 shanties have been demolished.

6. It was not entirely an act of a heartless state machinery, but in execution of the orders of the Bombay High Court directing the high powered committees which it constituted by judicial orders to demolish illegal structures (shanties) within a time frame and to report the same to the Court on the so-called PILs of the elite BEAG and the serial PIL wala, Rayanji Bayanji (Janhit Manch). A bench headed by Justice Bhandari, currently a member of the International Court of Justice, and your Lordship, passed a slew of directions in W.P (L) no. 3246 of 2004 for securing the demolition of the shanties of the poor. Five senior counsels appeared representing the various authorities, but not a single slumdweller was a party to the petition, nor was heard.

7. I was a total stranger to Mumbai. I was fully conscious of my helplessness and total insignificance. I knew that I certainly won’t be able to do anything, but the still voice from within did not allow me to remain silent. Come what may, I decided to fight for the cause of the slumdwellers.

8. The presence of certain conduits and certain issues of improbity, to put it mildly, the veracity of which I was personally convinced of, did not allow me to remain silent. I addressed certain confidential letters to the various constitutional authorities, seeking discrete enquiry. Strangely, some of the letters reached the desk of the then CJ himself.

9. While matters stood thus, when I was appearing for a client who was sought to be dispossessed of his home, before the bench of CJ Mohit Shah, Dr. Birendra Saraf, the current AG of Maharashtra, made an allegation in the open court that I had impersonated Justice Vasifdar by calling his client, an AGM of Janakalyan Sahakari Bank, and said ‘Vasifdar here, Mathews is before me, ask your advocate to call me’. He made the said allegation purposely with the sole intention to character assassinate me, an outstation lawyer, who so far as Dr. Saraf could see, had no lobby or clout in Mumbai. When I countered him sternly and sought action against him, he made his client file an affidavit stating that I had called him from my mobile. Chief Justice Mohit Shah ordered the service providers to make available the call records of myself and the Bank Officer. The records were accordingly produced. It showed that I did not call the Bank Manager, at all. And that on the contrary, it was the Bank Manager who had called me 9 times, two of which were picked up for a 16 and 21 seconds.

10. Even if it were an illiterate man or a child who was in the place of Justice Mohit Shah, he would have wanted to ascertain whether I called or not, and if I had not called at all it is impossible to impersonate as alleged. Holding the call records in my hand, I asserted in a crowded courtroom where Shri. Kambata, then AG, was present, the press, lawyers and litigants, that I did not call at all and that on the contrary, it was the Bank Officer who had called me. There was silence. Justice Mohit Shah went on to dictate, nay whisper a long order and issued notice for criminal contempt. The bar and the press remained a mute spectator. That was the day I realized that video recording of court proceedings and access to such records is the surest guarantee against judicial injustice, willful persecution.

11. I faced an almost similar situation on the 5th of March, 2019, in the Supreme Court. I was representing NLC in a petition in challenge of the discriminatory designation system. While, asserting that in the matter of seniority all that is relevant is seniority reckoned from the date of enrollment, to bring home the point, I referred to the name of Shri Fali S. Nariman, venturing to state that, that is the public stand of Shri Nariman, who many consider the doyen of the bar. I was convicted for contempt in the face of the Court “for taking the name of Nariman”, without notice, without a hearing, without an opportunity to defend, and in my absence.

12. Justice R. Nariman could convict me, in a fashion reminiscent of the Dark Ages, because I did not have the support of a lobby. In retrospect, I consider the ordeal, in many ways, a blessing. I consider it the inscrutable ways of the providence to make me an instrument for the benefit of the society. I had instituted a criminal complaint against Dr. Saraf, current AG of Maharashtra. The Magistrate took cognizance of it. The High Court designated him as a senior counsel, shutting its eyes to the fact that the criminal complaint against him, so too, the one before the Bar Council has been taken cognizance of/was pending. As it happens, I am not interested in prosecuting Dr. Saraf. All that I expected from him was the only upright thing, an apology. Instead, he filed a petition in the High Court seeking to quash the process issued against him by the Magistrate. The High Court stayed the Magistrate’s order ex parte, without issuing notice to me.

13. One cannot imagine of a more black and white scenario as the instant one. Justice Mohit Shah, even after realizing that I did not call at all and that on the contrary, it was Dr. Saraf who made his client file a false affidavit alleging that I had called him, when it was he who had called me, issued contempt notice against me. He did so because the judges in this country could do any injustice, with impunity. Justice R Nariman proved that Justice Mohit Shah is not the only one who could do such blatant injustice.

14. I can still file a contempt of court petition against Birendra Saraf, move an application for revoking his license to practice/removal of his designation. I am not interested, at least as of now. My mission is larger, namely, the democratization of the bar and the bench, bring an end to dynasties and judgeocracy, bring in transparency and reforms.

15. My efforts for reforms were taken by the dynasties as a threat to their right of inheritance and of course they attacked me by grossly abusing the judicial process, to put it mildly. They, the institution, owes me an apology. Though it’s not one I expect to receive. But the apology it owes to the thousands it rendered homeless, school children whose study materials were destroyed, the poor whose personal belongings were confiscated, who were rendered homeless overnight, I hope the institution will tender an apology as Pope Francis did for the crimes committed by the Church. The institution by acknowledging its mistakes will only give credence to its sanctity and certainly not otherwise as some may justify, for these were instances of willful injustice and cannot be brushed aside and as forgivable human errors.

With kind regards,

Yours Sincerely,

PS. Anyone doubting the veracity of what has been stated above, may access the official records. W.P (crl) no. 457/2016 filed by Dr. Saraf seeking to quash the complaint I had filed against him itself would establish the facts narrated above.