SC: Before challenging judge’s ability, one should have some knowledge

The Hon’ble Supreme Court of India, on 27th April 2020, in the matter of Vijay Kurle & Ors. in a suo moto contempt petition pronounced that no doubt, any citizen can comment or criticise the judgment of the Supreme Court. However, that citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity, and impartiality of a Judge of the highest court of the land.

The Hon’ble Supreme Court observed that:

What are the powers of the Supreme Court of India in relation to dealing with contempt of the Supreme Court in the light of Articles 129 and 142 of the Constitution of India when read in conjunction with the Contempt of Courts Act, 1971 ?

A bare reading of Article 129 of the Constitution of India learly shows that this Court being a Court of Record shall have all the powers of such a Court of Record including the power to punish for contempt of itself. This is a constitutional power which cannot be taken away or in any manner abridged by statute. (Para 7)

Article 142 also provides that this Court can punish any person for contempt of itself but this power is subject to the provisions of any law made by parliament. A comparison of the provisions of Article 129 and clause (2) of Article 142 clearly shows that whereas the founding fathers felt that the powers under clause (2) of Article 142 could be subject to any law made by parliament, there is no such restriction as far as Article 129 is concerned. The power under clause (2) of Article 142 is not the primary source of power of Court of Record which is Article 129 and there is no such restriction in Article 129. The High Courts also enjoy similar powers like the Supreme Court under Article 215 of the Constitution. (Para 7)

In view of the fact that the power to punish for contempt of itself is a constitutional power vested in the Supreme Court, such power cannot be abridged or taken away even by legislative enactment. (Para 7)

Powers of the Supreme Court to initiate contempt are not in any manner limited by the provisions of the Contempt of Courts Act, 1971. The Supreme Court is vested with the constitutional powers to deal with the contempt. Section 15 is not the source of the power to issue notice for contempt. It only provides the procedure in which such contempt is to be initiated and this procedure provides that there are three ways of initiating a contempt – (i) suo motu (ii) on the motion by the Advocate General/Attorney General/Solicitor General and (iii) on the basis of a petition filed by any other person with the consent in writing of the Advocate General/Attorney General/Solicitor General. As far as suo motu petitions are concerned, there is no requirement for taking consent of anybody because the Court is exercising its inherent powers to issue notice for contempt. This is not only clear from the provisions of the Act but also clear from the Rules laid down by Supreme Court. (Para 31)

The only requirement of the Rules and the Form is that the brief nature of the contempt is to be stated in the Form. There is no requirement of giving all the documents with the Form. In any event, non­supply of any document would only be an irregularity and not an illegality going to the root of the matter. (Para 32)

Contempt is basically a matter between the Court and the contemnor. Any person can inform the Court of the contempt committed. If he is to be arrayed as a party then the contempt will be in his name but when the Court does not array him as a party, the Court can on the basis of the information itself take suo motu notice of the contempt. (Para 35)

If an article, letter or any writing or even something visual circulating in electronic, print or social media or in any other forum is brought to the notice of any Judge of Supreme Court which prima facie shows that the allegation is contemptuous or scandalises the court then that Judge can definitely issue notice and thereafter place it before Hon’ble the Chief Justice for listing it before an appropriate Bench. (Para 39)

There can be no manner of doubt that every citizen is entitled to criticise the judgments of this Court and Article 19 of the Constitution which guarantees the right of free speech to every citizen of the country must be given the exalted status which it deserves. However, at the same time, we must remember that clause (2) of Article 19 of the Constitution also makes it clear that the right to freedom of speech is subject to existing laws for imposing reasonable restrictions as far as such law relates to contempt of Court. This right of freedom of speech is made subject to the laws of contempt which would not only include Contempt of Courts Act but also the powers of the Supreme Court to punish for contempt under Article 129 and 142(2) of the Constitution. Similar powers are vested with the High Courts. (Para 44)

The purpose of having a law of contempt is not to prevent fair criticism but to ensure that the respect and confidence which the people of this country repose in the judicial system is not undermined in any manner whatsoever. If the confidence of the citizenry in the institution of justice is shattered then not only the judiciary, but democracy itself will be under threat. Contempt powers have been very sparingly used by the Courts and rightly so. (Para 45)

The shoulders of the Supreme Court are broad enough to withstand criticism, even criticism which may transcend the parameters of fair criticism. However, if the criticism is made in a concerted manner to lower the majesty of the institution of the Courts and with a view to tarnish the image, not only of the Judges, but also the Courts, then if such attempts are not checked the results will be disastrous. (Para 45)

There can be no manner of doubt that any citizen of the country can criticise the judgments delivered by any Court including the Supreme Court. However, no party has the right to attribute motives to a Judge or to question the bona fides of the Judge or to raise questions with regard to the competence of the Judge. Judges are part and parcel of the justice delivery system. By and large Judges are reluctant to take action under contempt laws when a personal attack is made on them. However, when there is a concerted attack by members of the Bar who profess to be the members of an organization having a large following, then the Court cannot shut its eyes to the slanderous and scandalous allegations made. If such allegations which have not only been communicated to the President of India and the Chief Justice of India, but also widely circulated on social media are permitted to remain unchallenged then the public will lose faith not only in those particular Judges but also in the entire justice delivery system and this definitely affects the majesty of law. (Para 49)

No lawyer can threaten to expose a judge in front of the advocates and public on the basis of some vague and reckless allegations. This language is highly disrespectful and scandalises the Court and, therefore, amounts to committing contempt of the Court. (Para 53)

Admonishment by a Judge cannot be said to be a threat. (Para 55)

Some members of the Bar cannot hold the judiciary to ransom by threatening Judges of initiating criminal action. If this trend is not dealt with firmly then any party against whom a case is decided will start filing criminal cases against judges. (Para 67)

The relationship between the Bench and the Bar should be a cordial relationship with mutual respect for each other. Lawyers who try to browbeat or threaten judges have to be dealt with firmly and there can be no ill­founded sympathy for such lawyers. Such lawyers do nothing to help the legal fraternity much less the Bar. (Para 68)

When any person whether he be a party to the proceedings or not criticizes a judgment of a court he could do so as long as that party does not level allegations of malafide, ulterior motives, extraneous reasons etc. (Para 75)

There is a legal procedure established whereby a review petition or a curative petition could be filed. Even assuming that the judgment is not in consonance with the judgment of the Constitution Bench then also that is no ground to allege mala fide against the Judges comprising the Bench. (Para 82)

No litigant has a right to attribute motives to a Judge. No litigant has a right to question the integrity of a Judge. No litigant has a right to even question the ability of a Judge. When the ability, integrity and dignity of the Judges are questioned, this is an attack on the institution. It is an attack on the majesty of law and lowers the impression of the Courts in the public eye. The allegations in the complaints are scurrilous and scandalous. (Para 86)

No doubt, any citizen can comment or criticise the judgment of this Court. However, that citizen must have some standing or knowledge before challenging the ability, capability, knowledge, honesty, integrity, and impartiality of a Judge of the highest court of the land. (Para 90)

When a member of the body of lawyers sends such a vitriolic communication making scandalous allegations against Judges the head of such body cannot shirk responsibility for the same. The head should either immediately send a contradiction or otherwise it has to be presumed that the complaint has been sent with his knowledge, consent and approval. (Para 93)

Truth as a defence is available to any person charged with contempt of Court. (Para 95)

Copy of judgment: Judgement_27-Apr-2020

-Adv. Tushar Kaushik

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