Sub: To declare that the Contempt of Courts Act, 1971 is unconstitutional and void, or at least Sections 2(c)(i), 14, 16 and 17(5) thereof
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C) NO. 14564OF 2016
Mathews J. Nedumpara … Petitioner
Versus
Union of India & Ors. … Respondents
MEMORANDUM OF WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
Counsel for the Petitioner
P.BIJIMON (B-732) (K/3173/1999)
JACOB SAMUEL (J-1316) (K/259/1997
Room No.210, 2nd Floor,
Prasanna Vihar Appartments,
Near High Court of Kerala,
Cochin-682 031
Ph.No.0484-2368737
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C) NO. 14564OF 2016
Mathews J. Nedumpara … Petitioner
Versus
Union of India & Ors. … Respondents
I N D E X
Sr.
No
Particulars Documents
Page No.
1. synopsis
2. Memorandum of Writ Petition
3. Affidavit
Dated this the 1st day of April 2016
P. BIJIMON
Advocate for the Petitioner
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C) NO. 14564OF 2016
Mathews J. Nedumpara … Petitioner
Versus
Union of India & Ors. … Respondents
SYNOPSIS
1. It is a fundamental principle of jurisprudence that to institute a legal proceeding seeking a declaratory remedy or for enforcement of the same, no cause of action needs to exist.
2. The Petitioner, who is a lawyer enrolled with the Bar Council of Kerala in 1984 and practicing since then, is leading a National Campaign which has as its prime objectives the following:-
(a) Advertisement of vacancies of Judges of the higher judiciary, invitation of applications and references , open and transparent selection and appointment, instead of the current system of appointment by invitation where only the elite and super elite are invited, in a democratic legitimacy in the matter of selection and appointment of Judges;
(b) Creation of a Judicial Ombudsman or such other mechanism as is contemplated in the Judicial Standards and Accountability Bill, 2012 or the Charter/Resolution called the “Restatement of Values of Judicial Life” passed by the Supreme Court of India in its Full Court meeting held on May 7, 1997, which was ratified and adopted by Indian Judiciary in the Chief Justices’ Conference 1999 or any other meaningful mechanism where grievances against Judges could be addressed;
(c) Audio/video-recording of proceedings of all Courts and Tribunals and in particular the Supreme Court and High Courts, which will ensure transparency and accountability;
(d) Reintroduction of the transfer policy, which was described by the Seven-Judge Constitution Bench in Judges-1 case as a panacea for allegations of favouritism and conflict of interest where a lawyer is elevated as a Judge of the very same High Court where he has been practicing;
(e) Bring an end to the “Uncle Judge Syndrome” by transferring Judges whose immediate relatives are practicing in the very same Court;
(f) Abolition of the practice of designation of Advocates as a Senior Advocates or, at least, introduction of a common dress code for all lawyers, including those who are designated as Senior Advocates;
(g) Repeal of Contempt of Courts Act, 1971, for the said Act constitutes to be the one single obstacle which has rendered freedom of speech enshrined in Article 19 of the Constitution redundant. In none of the civil law countries, the law of contempt exists. In England, in the 19th Century itself, contempt by scandalizing a Court was declared to be obsolete;
(h) Introduce a transparent mechanism in the appointment of Standing Counsel/Panel Advocates/Legal Officers for Central and State Governments, Statutory Bodies, Public Sector Undertakings etc., so that the prevailing system of nepotism, political favour etc., are brought to an end;
(i) Simplification of procedures to make the judiciary as an institution for the common man rather than it being meant to be for the Judges and elite lawyers.
3. The Petitioner submits that the jurisdiction of contempt of Court has been so widely abused, the Petitioner begs to submit, not for securing the very primary object for which the said jurisdiction has relevance, namely, to secure a free, impartial and independent administration of justice, but to silence dissent and criticism, trammeling the very foundation of a constitutional democracy, namely, the right to dissent. Hence, the instant Writ Petition.
Dated this the 1st day of April 2016
P. BIJIMON
Advocate for the Petitioner
IN THE HIGH COURT OF KERALA
IN ITS EXTRA-ORDINARY ORIGINAL JURISDICTION
W. P.(C) NO. 14564OF 2016
Mathews J. Nedumpara,
adult, Indian Inhabitant,
residing at 907/210, Prasanna Vihar Apartments,
Near High Court, Cochin, Kerala-682 031,
And
Mathews J. Nedumpara,
Adult, Indian Inhabitant,
residing at Harbour Heights,
“W” Wing, 12-F, 12th Floor,
Sassoon Docks, Colaba,
Mumbai-400 005. … Petitioner
Versus
1. Union of India, represented by its
Secretary, Department of Legal Affairs,
Government of India, Sastri Bhavan,
New Delhi.110001
2. Union of India, represented by its
Secretary, Department of Justice,
Jaiselmer House,
New Delhi.110001
3. State of Kerala, represented by its
Chief Secretary, Trivandrum.695036
4. The Law Commission of India,
represented by its Secretary,
New Delhi.110001
5. The Press Counsel of India,
represented by its Secretary,
New Delhi.110003
6. The Kerala HC Advocates’ Association,
represented by its Secretary,
Ernakulam, Kerala.682301
7. The Bar Council of India,
represented by its Secretary,
New Delhi 110002 … Respondents
Notice on the Petitioner may be served on his Counsel P. Bijimon, Room No.201, 2nd Floor, Prasanna Vihar, Near High Court of Kerala, Ernakulam.
Notice on the Respondents may be served at their respective addressee or on their Counsel, as the case may be.
MEMORANDUM OF WRIT PETITION FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA.
STATEMENT OF FACTS
1. The Petitioner is an Advocate enrolled with the Bar Council of Kerala in the year 1984 and has since been in active practice in the various Courts and Tribunals of the country and, in particular, the High Courts of Bombay, Delhi and Chandigarh and the Supreme Court of India, to a limited extent. The Petitioner is also leading a Campaign titled National Lawyers’ Campaign for Judicial Transparency and Reforms, an NGO formed solely to foster greater transparency and accountability in judiciary, in particular, the higher judiciary. The Petitioner considers the words of Blackstone that the Bar is the third estate, without in any way undermining the Press known to be the fourth estate, for the freedom of speech, the most precious of the freedoms and liberties for which the Father of the Nation led the freedom struggle and which the Founding Fathers of our Constitution considered it to be the most inalienable, transcendental and primordial basic feature of the Constitution, are in great jeopardy today. The Petitioner, a lawyer with more than three decades of standing at the Bar, considers himself to be self-disciplined, invested with the maturity which his age and standing in the profession and the society require him to observe, which make him believe that reticence is a virtue, but, at the same time, where there is a duty to speak, silence is a crime/sin. The Petitioner is agonized and pained that India being a liberal democracy with a Constitution which has enshrined the freedom of speech and liberties as the very fundamental rights, he is not free to speak his mind freely, for, if he does so, he could be inviting prosecution for contempt of Court and if he were to speak about certain other issues, which he ought to be entitled to speak, he may face a charge of sedition.
2. Lex iniusta non est lex – an unjust law is no law at all, is a standard legal maxim – said St. Augustine; so too St. Thomas Aquinas but with a rider, namely, that if the consequence flowing from disobedience of an unjust law is worse than following it, then one must observe it. Mohammed Ali Jinnah felt that the freedom struggle should be within constitutional means, namely, not to violate the laws of the land, howsoever unjust they could be. Mahatma Gandhi also believed in the philosophy of St. Augustine, St. Thomas Aquinas, nay, even that of Chief Justice Edward Coke. The Petitioner, who, undoubtedly, is a great admirer of Gandhian philosophy of defiance of unjust law, believes that the said option ought to be exercised only when constitutional means have totally failed. The philosophy of Mahatma Gandhi that “a Dharma which does not meet the practical requirement of life is not dharma, but adharma”, the Petitioner believes, today is not strictly constitutional in overcoming an unjust law, though on moral principles are unquestionable and would not serve the practical requirements of today. The struggle to foster the very fundamental freedoms and liberties, of which the freedom of speech is most paramount, has to be secured through constitutional means. The instant Writ Petition is a humble endeavour to secure freedom of speech, the most sacrosanct of all freedoms to the Petitioner; so too to the 129 crores of people of this country.
3. The legal status of the Respondents is manifest from the very cause title itself. Since in the instant Writ Petition the Petitioner is seeking a declaration that Section 2(c)(i) of the Contempt of Courts Act in so far as it defines the offence of contempt as “scandalises or tends to scandalise, or lowers or tends to lower the authority of, any Court”, in other words, criticizing a Judge, judgment or Court, is unconstitutional; that Section 16 of the said Act, which provides that a Judge
who commits contempt of his own Court is liable to be punished like anyone else who commits contempt of Court, is applicable to the Judges of the Supreme Court and High Courts, and to confer it an interpretation that the said section is applicable only to members of the lower judiciary and not to Judges of the higher judiciary is contrary to the very concept of equality before law and further a mandamus at the hands of this Hon’ble Court directing the Central and State Legislatures to provide for a mechanism by which the offence of contempt could be tried and decided not by the Judges of the Court against whom the allegation is made, for, in that case, they are interested parties and, therefore, to observe the principles of natural justice, namely, nemo debet esse judex in propria causa – no one can be judge in his own cause, an independent mechanism has to be created, particularly in cases where the allegation is made against a Judge who has committed contempt of his own Court within the meaning of Section 16 of the Contempt of Courts Act, the Union of India represented by its Secretaries in the Departments of Legal Affairs and Justice, the Chief Secretary, Government of Kerala, are necessary and proper parties; so too the Bar Council of India, the Kerala Bar Association, the Press Council of India and the Law Commission of India are necessary parties since in the instant petition the Petitioner seeks to ensure that the Contempt of Courts Act is enforced primarily to secure the purpose for which the said Act is enacted, namely, to facilitate the smooth administration of justice and not to abuse the said Act or use it as a tool to suppress fair criticism of the institution of judiciary.
4. To eliminate any false impression that anybody might entertain that the Petitioner and the Campaign which he leads are against Judges, the Petitioner begs to submit that he being a lawyer and the legal profession being his sole means of livelihood, the institution of judiciary is so close to his heart; he considers Courts as Temples of Justice, the Presiding Officers as deities and, as the Supreme Court has said in S.P. Gupta v. Union of India, AIR 1982 SC 149, he and his fellow lawyers as the priests thereof. The Petitioner believes in the words of legendary Justice Krishna Iyer that the Bar is the Judge of Judges and the sanctity, efficacy and credibility of the judiciary as an institution for administration of justice, untainted, pristine, would all depend upon each and every member of the Bar. The Petitioner is reminded of the words of Justice Sabyasachi Mukherjee in P.N. Duda v. V. P. Shiv Shankar & Ors., 1988 AIR 1208, that “To criticise a judge fairly albeit fiercely, is no crime but a necessary right.” His Lordship added, quoting Justice Brennan of U.S. Supreme Court, that “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” Lord Denning had said: “Let me say at once that we will never use this jurisdiction (contempt) to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.” Justice Felix Frankfurter of the U.S. Supreme Court had said “Judges as persons, or Courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions.”
5. The Petitioner begs to state at the cost of repetition that while he considers the Courts and Tribunals as sacrosanct and that their majesty, dignity and authority should in no way be allowed to be undermined, for, the very concept of rule of law, one of the pillars on which the concept of democratic polity is built, which cannot stand and be sustained unless the institution of judiciary is respected, its authority is recognized, and its orders are obeyed, at the same time considers that the same could be achieved where, again to quote Justice Jerome Frank of the U.S. Court of Appeals:
“I am unable to conceive that, in a democracy, it can never be wise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions. The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts.”
Chief Justice of India P.B. Gajendragadkar, while speaking for the Seven-Judge Constitution Bench in Special Reference No. 1 of 1964 (AIR 1965 SC 745, paragraph 142) had said “We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger of irritation would not help to sustain the dainty or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.”
6. Brief facts of the instant case
(a) These days the Petitioner appears in Courts and Tribunals in different parts of the country and in particular in Mumbai and Delhi. He always feels proud to belong to the Kerala High Court Bar. He also takes great pride of the High Court of Kerala and the Hon’ble Judges who adorn its august office. Only a couple of days back, in an affidavit which the Petitioner drafted, his client happened to affirm as infra:-
“Before I part with, I will be failing in the discharge of my obligation to my lawyer if I were not to state what my lawyer told me with great amount of pride that he belongs to a Bar of which the doyen late Sivasankara Panicker gave up his glorious practice when his son Justice K.S. Radhakrishnan was elevated as a Judge of the Kerala High Court and who later adorned the august office as a Judge of this Hon’ble Court, which made my lawyer, so too every lawyer of the Kerala Bar, proud of his great tradition.”
b) Till the year 1998, the Petitioner’s practice was confined to Kerala. Nowadays he occasionally comes to his home State since his major chunk of briefs is from outside Kerala. When the Petitioner landed at Kochi on 5.3.16, he happened to come across a news report that a Division Bench of this Hon’ble Court has initiated suo motu contempt of Court proceeding against one Sri K.C. Joseph, a Minister of Cultural Affairs in the Government of Kerala, on an application at the hands of one Sri Sivankutty alleging that the Minister on his Facebook page has written as infra:-
“If the antecedents of the persons who made the comments are examined, there can be no surprise that the ‘jackal who fell in the indigo dye howls’, and he cannot be blamed.”
The newspaper report further says that even though the Minister tendered an unconditional apology for his remark against the Hon’ble Judge, this Hon’ble Court directed him to appear before it in person on 1st March, 2016 and that on that day the Hon’ble Court, after being told about the tendering of an unconditional apology by the Minister, still did not close the case and, instead, directed him to appear before it on 10th March, 2016.
(c) Thereafter the Petitioner accessed Google and came across large volume of literature and discussions on the subject. The petitioner is afraid to say that he was flabbergasted and shocked, nay, anguished and pained, for, an institution like this Hon’ble Court, the Hon’ble Judges of which he holds in high esteem and regard and have always taken proud to be a member of the Kerala Bar, for whom the Bench and the Bar are two sides of the same coin, has chosen to take cognizance of a matter which, he believes, ought to have been totally ignored. In a contempt of Court proceeding, silence is a sign of strength. Justice Oliver Wendell Homes of the American Supreme Court had said:
“Unless and until we treat judges as fallible human beings whose official conduct is subject to the same critical analysis as that of other organs of government, judges will remain members of a priesthood who have great powers over the rest of the community, but who are otherwise isolated from them and misunderstood by them, to their mutual disadvantage.”
Lord Atkin, one of the greatest Judges of yesteryears, had said “…Whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticizing, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” A seven Judge Constitutional Bench of Supreme Court headed by the legendary CJI, Shri P.B Gajendragadkar in a Presidential Reference under Article 143 of the Constitution (AIR 1965 SC 745 para 142) ob