WP(Crl)_SCI_J.C.S.Karnan(Circulation)

 

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL) NO. ________OF 2017

(D) NO. 15420

 

BETWEEN

Justice C.S.Karnan                                           …               PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                           …      RESPONDENTS

 

 

WITH

IA.NO.                      OF 2017

An Application For Stay

 

 

P A P E R – B O O K

[FOR INDEX KINDLY SEE INSIDE]

 

 

 

 

 

 

 

 

 

ADVOCATES FOR THE PETITIONER

MATHEWS J.NEDUMPARA

&

 A.C.PHILIP

 

 

 

 

SYNOPSIS AND LIST OF DATES

 

BEING AGGRIEVED BY THE IMPUGNED ORDER AND NOTICE DATED 08/02/2107 PASSED BY THIS HON’BLE COURT CULMINATING IN THE ORDER DATED 9^TH   MAY, 2017 CONVICTING THE PETITIONER FOR CRIMINAL CONTEMPT OF COURT AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR SIX MONTHS, THE INSTANT WRIT PETITION IS PREFERRED BY THE PETITIONER THROUGH HIS COUNSEL

HENCE THE INSTANT WRIT PETITION.

 

 

 

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 this Hon’ble Court.

09/05/2017      Order passed by this Hon’ble Court, convicting the petitioner for criminal contempt of court and sentencing him to undergo imprisonment for six months,

11/05/2017      The instant Writ  Petition Filed.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL) NO. ________OF 2017

(D) NO. 15420

 

BETWEEN

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,

Tilak Marg,

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. Director General of Police,

Director General of Police Office,

Kamarajar Salai,

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 Sarat Chatterjee Road,
Howrah – 711 102.                             …RESPONDENT NO.4

 

PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA SEEKING DECLARATION AND OTHER RELIEFS.

 

TO

THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA

 

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

 

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 the Hon’ble Chief Justice of India (CJI) was pleased to take suo motu cognizance of a letter dated 23^rd  January, 2017 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 made by the Petitioner and to constitute a Bench of seven Judges to hear the same and by order dated 9^th May, 2017 was pleased to convict the Petitioner for criminal contempt of Court and sentence him to undergo imprisonment for six months.  The Petitioner with utmost respect submits that the entire proceeding at the hands of the CJI 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;”

 

 

3. 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 suo motu 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 – sublato fundamento, cadit opus – the foundation being removed, the structure falls.

 

4. 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 suo motu 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.”  Section 15 of the Act, which alone could have been invoked for initiating the contempt of Court case against the Petitioner, for Section 14 which deals with the procedure where the contempt is on the face of the Supreme Court or the High Court could not have been invoked against the Petitioner.  Even assuming that the conduct of the Petitioner in addressing the letter to the Hon’ble Prime 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.
5. 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.  A copy of the order dated 9^th May, 2017 is produced as Annexure P-1 (From pages___ to ___). A copy of the order dated 08^th February, 2017 is produced as Annexure P-2 (From pages___ to ___).

 

6. 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.  Shri Antulay 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.

 

7.             The Petitioner is entitled to seek a declaration that the order dated 9^th May, 2017 (Annexure P-1) 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 32, though Article 32 makes no express reference about its power to grant a declaration.  This Hon’ble Court being the highest Court of the land is undoubtedly invested with the jurisdiction to grant such a declaration.  Therefore, the Petitioner is instituting a petition under Article 32 of the Constitution for a declaration that the entire proceeding at the hands of this Hon’ble Court against the Petitioner culminating in the order dated 9^th May, 2017 is void ab initio.

 

8.             As aforesaid, since the orders dated 08/02/2017 and 09/05/2017 at the hands of this Hon’ble Court 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.

 

9.             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.
10.                 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.

 

11. 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. Shukla vs 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.
12. 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.

 

13. 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 accusare nemo se debet nisi coramdeo, namely, nobody is bound to incriminate himself; so too in nemo tenetur seipsum accusare– 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 nemo potest esse simul actor et judex – “no one can be at once suitor and Judge”.

 

14.                 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 –

(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.”

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.

 

15. 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.

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

 

 

16. 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.

 

17. The procedure contemplated under Section 14 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.

 

18. 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 uno flatu, 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. nemo debet esse judex in propria causa and audi alteram partem, 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.”

 

 

19. 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.
20. Hence, the instant Writ Petition under Article 32 of the Constitution challenging the constitutional validity of Sections 2(c), 12, 14 and 15 of the Contempt of Courts Act, 1971 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 Courts 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”.

 

 

21. The instant Writ is not barred by the by the doctrine of estoppel res judicata.
22. The Petitioner states that the Petitioner has no other efficacious alternative remedy than to prefer the instant Writ Petition under Article 32 of the Constitution of India.
23. That the Petitioner crave leave to add, amend or alter any of the foregoing grounds with the permission of this Hon’ble Court.
24. 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.

 

PRAYERS

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

• 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 P-1 at pages __ to __), are unconstitutional and void inasmuch as they are against the principles of natural justice;

(b)      stay all further proceedings pursuant to the order dated 9^th May, 2017 (Annexure P-1 at pages __ to __);

(c)       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”.

 

(d)      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;

(e)       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;

 

(f)         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;

(g)        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;

(h)        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;

(i)          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.

(j)        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.

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY:

                                                        FILED BY

DRAWN BY:

MATHEWS J.NEDUMPARA

Advocate

Drawn on: 10/05/2017                    [MATHEWS J.NEDUMPARA ]

Filed on: 11/05/2017                     and [A.C.PHILIP]

Advocate for the petitioner

 

 

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

1. A. NO. OF 2017

IN

WRIT PETITION (CRL)  NO.           OF 2017

 

IN THE MATTER OF

Justice C.S.Karnan                                           …               PETITIONER

Versus

The Supreme Court of India

through its Registrar General.

& ORS.                                                            …      RESPONDENTS

AN APPLICATION FOR STAY

TO

THE HON’BLE CHIEF JUSTICE  OF INDIA

AND HIS COMPANION JUSTICES OF THE

HON’BLE  SUPREME  COURT   OF  INDIA

 

 THE HUMBLE APPLICATION OF THE APPELLANT ABOVE NAMED

MOST RESPECTFULLY SHEWETH:

 

1. It has become imperative for the Petitioner to institute the instant application, one unparallel in the legal history, since the Hon’ble Chief Justice of India (CJI) was pleased to take suo motu cognizance of a letter dated 23^rd January, 2017 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 made by the Petitioner and to constitute a Bench of seven Judges to hear the same and by order dated 9th May, 2017 was pleased to convict the Petitioner for criminal contempt of Court and sentence him to undergo imprisonment for six months. The Petitioner with utmost respect submits that the entire proceeding at the hands of the CJI 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;”

2. 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 suo motu 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 – sublato fundamento, cadit opus – the foundation being removed, the structure falls.
3. The Act could not have been 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.
4. 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.
5. 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  V. C. Shukla vs 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 Contempt of Court 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.

That the present application is filed bonafide and in the interest of justice. That the Petitioners have very strong case on merits and had thus stands to succeed in the present application.

 

P R A Y E R

In the circumstances, it is, most respectfully prayed your Lordships, and may graciously be pleased to:

• grant an ad interim ex-parte order staying the operation and execution of the Order dated 09/05/2017(Annexure P-1 at pages __ to __) by this Hon’ble Court convicting the petitioner for criminal contempt of court and sentencing him to undergo imprisonment for six months, till the final disposal of this Petition before this Hon’ble Court ;
• Pass any order or further orders as this Hon’ble Court may deem fit and proper under the facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE HUMBLE APPELLANT AS IN DUTY BOUND SHALL EVER PRAY.

                                                                                                      FILED BY

DRAWN BY:

MATHEWS J.NEDUMPARA

Advocate

Drawn on: 10/05/2017                    [MATHEWS J.NEDUMPARA ]

Filed on: 11/05/2017                     and [A.C.PHILIP]

Advocate for the petitioner