Monthly Archives: November 2016

Of Indian CORRUPT JUDGES COLLEGIUM:- Six wise men of judiciary and an elephantine task – 30 Nov 2016

As children, we had heard the story about six wise men, each of whom thought he knew everything. Their boastful claims reached the king’s ears. He decided to take a public test. Keeping an elephant inside a tent, he blindfolded the wise men and asked them to enter the tent through six different doors.

They were allowed to touch and feel the elephant. They were to use their vast knowledge to tell the assembled people what they found inside the tent. We know the rest of the story which narrates the hilariously different objects the wise men imagined to be inside the tent.

There are six wise men in the judiciary and the government – the CJI, the next four senior judges of the Supreme Court and the law minister. They are all over 62 years in age, with nearly four decades of professional experience in the field of law.

The five judges are in the SC collegium and in the past have headed collegiums in high courts. They perform the unenviable task of selecting people with honesty, competence and rectitude for appointment as judges of constitutional courts.

The law minister too has first-hand experience about selection of judges. In addition, he as a lawyer is aware of the manner of selection of judges and the lacunae in the system. He also has vast experience in handling politically sensitive legal cases.

In December last year, a five-judge constitution bench headed by Justice J S Khehar, the next Chief Justice of India, took note of growing criticism of the opaqueness and arbitrary procedure adopted by the collegium and ordered redrafting of the Memorandum of Procedure (MoP) for selection of persons for appointment as judges. Almost a year has passed and the task has turned elephantine.

The five-judge constitution bench had its contribution in catalysing circumstances to make the task of finalising MoP an unenviable one. Earlier, the MoP was drafted by the government in consultation with the CJI. But the five-judge bench mandated that the government would redraft the MoP in consultation with the CJI, who had to convey the unanimous view of the collegium members. Unanimity has been eluding the six wise men for nearly a year. The draft MoP has been tossed between the executive and the judiciary a couple of times. But since the first week of August, it has been resting with the collegium.

The five senior-most judges of the SC, including the CJI, have on a daily basis judicially advised and coerced warring litigants to sit across table to discuss and narrow down their differences. These five wise men are discovering a dark truth about life in the last one year – what is probably easy to sermonise while presiding over benches and armed with constitutional powers is not so easy when they themselves sit together to find common ground on MoP.

One wise man among the five in the SC has serious differences with the collegium’s functional procedure. He says that views expressed by individual members, even if pertinent and worth considering, are brushed aside or summarily rejected by the majority. He stopped attending collegium meetings. Instead, he decided to pen down his views on the files after the four others discussed issues and recorded a decision. He says he is doing so to subject his recorded views to scrutiny if ever such an occasion arises.

We asked a majority of collegium members a simple question: Is it such a difficult task for six wise men to finalise transparent and uniform selection criteria for selection of judges to the SC and HCs? They said it was rather sad that such experienced people were finding it difficult to crystallise their views and reach common ground on this issue. How long will it take to finalise?

The law minister feels satisfied that despite non-finalisation of MoP, the government has appointed 120 judges to the SC and HCs, the second highest number since 1990. He says the government has sent the draft MoP to the collegium three and a half months ago. There is no response yet, he laments. The stagnancy on MoP does not augur well for the judiciary as an institution. More so, when nearly three crore cases are pending in the three-tier justice delivery system. What does not help is the vacancy of 500 judges in HCs and 5,000 in trial courts.

This grim scenario is threatening to envelop the justice delivery system that had long shed its swiftness. Instead of focusing on finding a solution to the stalemate, the CJI, the law minister and the attorney general were seen reminding each other about the constitutional ‘laxman rekha’ for every organ of governance.

Democracy and judiciary are critically dependent on the oxygen called people’s faith. Both must remove systemic blindfolds and work towards streamlining the judges’ appointment procedure. The public is keenly watching the six wise men’s experiments with an elephant called MoP.

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    Justice G.P. Shivaprakash’s 5 Roles in JUDICIAL Layout

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    Links to all Files , Evidences will be given shortly. 25 July.2012

    Justice G.P. Shivaprakash’s Role in  JUDICIAL Layout: Karnataka High Court Judge & Up-Lokayukta

    Preabmle:
    A ] LA Act was amended in 1984 to bring LA for HBCS into Part-VII for Company Purpose.
    Accordingly Jud Emp HBCS signed Agreement in 1988. Same was presented to HC in Land Conversion case to S. Rajendra Babu.  He did not take Notice. Society time & again gas narrated in WPs of Agreement.
    B] SCI & Kar  HC held such Agreement signed is to acquire for Company. LA was set aside.
    C] Society schematically violated all Terms of Agreement & every Law by Judgments; which it adduces before Up-Lokayukta, Kar HC in 40994/02.
    D] It even received Compensation for 87 Acres of Lands acquired under Rule 10[B] of LA Company Rules. Kar HC in Amarjyothi HBCS set aside LA, as Rangadhama Setty, President…

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    Supreme Court must uphold the rule of law. Justice was sent on leave in 1990 by then CJI

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    Chief Justice of India’s STATEMENT TO THE SUPREME COURT BAR on 20-07-1990 [ Read More ]
    The Supreme Court must uphold the rule of law. It is, therefore, necessary that those who uphold the rule of law must live by law and judges must, therefore, be obliged to live according to law.

    Involvement in any investigation on the conduct of a sitting Supreme Court Judge on such matters as aforesaid is embarrassing in the circumstances and the background in which these questions have arisen in the instant case. For one who should attempt to uphold the rule of law, it is embarrassing to be involved in such a dispute.

    I have, on these aspects after looking into the matter and the points involved, no doubt that those who aspire to uphold the rule of law must strive to live according to law and they necessarily expose the selves to…

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    “‘KARNATAKA STATE POLICE DEMANDING DIRECTIONS FROM KARNATAKA CHIEF MINISTER SIDDARAMAIAH’; ‘TO ALL SHOs OF KARNATAKA TO ARREST & JAIL PROVEN CRIMINAL-CONTEMNER-FRAUDSTER 867-EMPLOYEEs-CUM-CJIs-CJs-LOKAYUKTAS-‘UPA-LOKAYUKTAS’-DJs-MAGISTRATES-‘LAW-SECRETARIES’ INTER ALIA EMPLOYEEs-CUM CHIEF JUSTICE OF INDIA T.S.THAKUR, INDIAN HUMAN RIGHT’S COMMISSION CHAIRMAN H.L.DATTU, BOMBAY HIGH COURT CHIEF JUSTICE MRs MANJULA CHELLUR, MAHARASHTRA HUMAN RIGHT’S COMMISSION CHAIRMAN S.R.BANNURMATH, KERALA EMPLOYEE-CUM-CHIEF-JUSTICE MOHAN SHANTAN GOWDA”-26 NOVEMBER 2016

    WHY THIS SUDDEN DEVELOPMENT?

    1. THE GUARDIANS & CUSTODIANS OF KARNATAKA RULE OF LAW IMPLIMENTERS ARE  DEFEATING THE RULE OF LAW SINCE 1991:-

      Since 1991, “PROVEN CRIMINAL-CONTEMNER-FRAUDSTER 867-EMPLOYEEs-CUM-CJIs-CJs-LOKAYUKTAS-‘UPA-LOKAYUKTAS’-DJs-MAGISTRATES-‘LAW-SECRETARIES’ INTER ALIA EMPLOYEEs-CUM CHIEF JUSTICE OF INDIA T.S.THAKUR, INDIAN HUMAN RIGHT’S COMMISSION CHAIRMAN H.L.DATTU, BOMBAY HIGH COURT CHIEF JUSTICE MRs MANJULA CHELLUR, MAHARASHTRA HUMAN RIGHT’S COMMISSION CHAIRMAN S.R.BANNURMATH, KERALA EMPLOYEE-CUM-CHIEF-JUSTICE MOHAN SHANTANA GOWDA” have ENTERED into ILLEGAL CONSTITUTIONAL CRIMINAL CONSPIRACIES WITH KARNATAKA POLITICAL EXECUTIVE GOVT., REPRESENTED BY CHIEF MINISTERS, MINISTERS, Ex. CMs, Ex. MINISTERS, BUREAUCRATS VIZ., DG & IG OF POLICE, POLICE COMMISSIONERS TO DEFEAT THE RULE OF LAW.
    2. THE GUARDIANS & CUSTODIANS OF KARNATAKA OF UPHOLDING MAJESTY OF JUSTICE; CONTRARILY BROODING CORRUPTION IN JUDICIARY, LOKAYUKTA, HIGH COURTS OF INDIA, HUMAN RIGHTS COMMISSIONS OF INDIA, AND CREATING ANARCHY IN OUR PRISTINE INDIAN JUDICIAL HISTORY .,
    3.  To Continue
    4. KSP & JUDICIARY ARE TWO sides SAME COIN; LIKE HUSBAND & WIFE:-
      KSP DCP, SP, SHO, HC, Constables SALARY & PERKS MUST be on PAR with Indian JUDICIARY; but IPS Committee has PUT KSP on PAR with Revenue Department of Karnataka

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    Private Prosecution of Crime – The Supreme Court shows the Way – by Abhay Nevagi Associates. 26 Nov 2016

    Who among us has not been entranced by the drama and intrigue of a legal trial? The annals of legal literature, both fictional and historical, have highlighted countless lawyers whose wit and brilliance has dazzled the public as well as the students and practitioners of law alike.

    The creative arts have often explored and exploited the emotional odysseys of trial law, in the process critiquing many a social dogma or championing human rights, or even serving as social commentary for their times. In the trial of Antonio caused by Shylock, it was the delicate heroics of Portia that saved the hapless Merchant of Venice from a gruesome death through the exercise of sheer common sense. Atticus Finch defied the crushing pressure of bigotry to save the life of a man whose only crime was that he was not born Caucasian, in the process showing legions of lawyers what and who they should be.

    Perry Mason’s devious brilliance in and outside the courtroom helped him proclaim the innocence of his own clients by declaring the guilt of others. Tom Cruise’s character, Lieutenant Daniel Kafee in ‘A Few Good Men’ proved that not only could he handle the truth, he could squeeze it out of an enraged Colonel Nathan R. Jessup, impeccably played by Jack Nicholson. How many impassioned speeches, caustic quips and pointed stares has James Spader’s Alan Shore thrilled us with?

    Then again, what do most lawyers whom we have loved to watch, listen to or read about, have in common? The answer is that they are typically preferred as criminal defense attorneys. From either a real-world or a creative perspective, the job of a prosecuting lawyer is hardly glamorous. Oddly enough, the stories of the suspected bad guys and their highly paid lawyers tend to foster far more artistic and literary expression than their victims. The exceptions, where the roles of the prosecutor have been given more prominence, are usually portrayed as the prosecuting lawyer finding his innate goodness or revulsion to all things evil, rather than as a laudatory acknowledgment of the State’s prosecutorial machinery in convicting dastardly deeds.

    On the same footing, the criminal prosecuting attorney in an Indian court of law is hardly given his / her due. According to the National Crime Records Bureau of the Government of India, the all-India conviction rate of IPC crime cases during 2014 was at 45.1%, a statistic which shows that more than half the crimes tried before criminal courts in the country end up in acquittals. That cannot be considered a healthy statistic, even if one makes allowances for the instances of false and malicious prosecution that continue all the way up to a verdict. At the end of the day, the onus of a criminal trial ending in a conviction lies on the prosecution, which includes the police and the public prosecutor’s office. One does not often come across an item in the newspapers extolling the virtues of a prosecuting lawyer in obtaining the conviction of the accused in a criminal trial. It is equally uncommon to come across a law student from a premiere law school or university in the country stating that he/she wishes to be a public prosecutor.

    Yet, the position of the public prosecutor is critical in a civilized legal system governed by the rule of law. The Kerela High Court, in its judgment in Babu v. State of Kerela[1] described the role of the public prosecutor rather succinctly, by stating that they “are not representatives of any party. Their job is to assist the court by placing before the court all relevant aspects of the case.” Regrettably, for the honest public prosecutor, his is also a thankless and relatively low-income job. It’s a small wonder that the best legal minds are not often the ones prosecuting criminal cases.

    Then again, why can’t they be? It is a common misconception that criminal prosecution is only the lot of the public prosecutor’s office. This is not strictly true. In fact, the Code of Criminal Procedure, 1973 specifically enables private persons and their pleaders to conduct or assist in conducting prosecutions with the permission of the court. Section 301 of the Code puts the responsibility on the Public Prosecutor or the Assistant Public Prosecutor in charge of a criminal case to conduct the prosecution. However, Section 301(2) allows a private person to instruct a pleader to prosecute any person in any Court, in which case such a pleader shall act in such a case under the directions of the Public Prosecutor or the Assistant Public Prosecutor, and may also submit written arguments after closure of evidence in the case with the permission of the Court.

    Section 302 of the Code is of even wider import. It empowers any Magistrate inquiring into or trying a case to permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. A private citizen can, thus prosecute his own criminal complaint, subject to the permission of the Magistrate inquiring into or trying the case. And he can do so either by himself or through a pleader.

    This position has been recently reiterated by no less an authority than the Supreme Court of India in the case of Dhariwal Industries Ltd. v. Kishore Wadhwani & Ors.[2] In that case the Appellant Company, which was the original Complainant, had lodged a private complaint under Section 200 of the Code of Criminal Procedure, 1973 before a Magistrate for various offences. The Magistrate passed directions under Section 156(3) of the Code to the police to investigate the offences. The police registered an FIR and laid a charge sheet before the Magistrate. The Magistrate took cognizance of the offences made out in the charge sheet after which the case was registered as a criminal case before him. Before the charges could be framed by the Magistrate, the accused persons filed an application for discharge under Section 239 of the Code. At that juncture, the Appellant / original Complainant orally sought the permission of the Magistrate to be heard along with the Assistant Public Prosecutor, which permission was granted by an order. The accused persons challenged this order before the Bombay High Court. The High Court read the provisions of Section 301 of the Code and stated that the Appellant/ original Complainant could only act under the directions of the Assistant Public Prosecutor. The Appellant approached the Supreme Court challenging the limitation imposed by the High Court. The Apex Court clarified the provision of Section 302 of the Code in respect of criminal cases before Magistrates, stating that the original Complainant must make a written application to the Magistrate seeking permission for conducting the prosecution independently. If such an application is made, the Magistrate has to form an opinion on whether the cause of justice would best be subserved if permission is granted, in which case it would be better to grant such permission. Once permission is granted, the original Complainant or his lawyer can prosecute the case. The Supreme Court has further specified that Section 302 applies to every stage of trial, including the stage of framing of charge (which was the stage at which the original Complainant had orally applied for permission to be heard in this case). The Supreme Court considered its earlier judgments in J.K. International v. State (Govt. of NCT of Delhi) and others[3] and Shiv Kumar v. Hukam Chand and another[4] to explain the purport of Sections 301 and 302 of the Code, and essentially stated that while Section 302 applied specifically to Magistrate courts, the limitations imposed by Section 301 on the original Complainant to be a part of the criminal trial would apply to all other courts without exception.   

    The judgment of the Supreme Court in Dhariwal Industries does not put forth a radically new proposition, but it does highlight an oft neglected right of private complainants to participate in the criminal proceedings initiated by them. The Supreme Court, while allowing the Appellant Dhariwal Industries to apply to the Magistrate under Section 302 of the Code, has not laid down any specific guidelines that a Magistrate should follow while considering the application, save that the Magistrate is to see whether the cause of justice would best be subserved if the Complainant prosecuted the case. This is undoubtedly a subjective and highly open-ended proposition. Yet, the judgment can still be relied upon to enable private complainants to seek justice in otherwise State-conducted criminal trials. The provision in Section 302 of the Code can be employed strategically at any stage of the criminal trial process, such as in a hearing on an application for discharge made by an accused before charges are framed by the Magistrate in a warrant trail, or even at the final hearing of the matter. The Supreme Court, by stating that Section 302 of the Code applies to every stage of trial, has made it effectively possible for the private Complainant to even apply for permission to participate in the evidentiary hearings and cross-examine the witnesses put forth by accused persons.

    There is, of course, the possibility of abuse of the provision of Section 302 of the Code, which can be resorted to by unscrupulous Complainants to harass people, especially when police investigations do not reveal sufficient evidence to proceed with a trial. On a practical front, the idea of the private Complainant carrying on a parallel prosecution alongside the public prosecutor may also lead to the inevitable presupposition that the usual inordinate delays in criminal trials may be further exacerbated. Yet, the potential for abuse of the provision must be weighed against the potential for more effective justice for victims of crime, which is ultimately in the best interests of society. A private Complainant, by virtue of Section 302 of the Code, can be a more active part of the prosecution against his aggressor. Furthermore, since the Magistrate is required to consider a written application of the Complainant seeking permission to conduct the prosecution, and has sole discretion in respect of the same, the necessary check against unscrupulous Complainants is already in place in Section 302 of the Code.

    The provision in Section 302 of the Code is also a good way to involve highly-skilled lawyers into the criminal prosecution process in order to ensure better and elevated efforts to deal with serious crime. The criminal justice system should be a deterrent for the perpetrators of crime and not for their victims. The Supreme Court has reminded us that it is not only the accused who have access to big-ticket lawyers to bail them out and help acquit them of crimes. The victims of crime can just as well avail the services of the best lawyers to prosecute the perpetrators, especially if their trial is to take place before a Magistrate.

     


    [1] (1984) Cr LJ 499 (Ker).

    [2] Criminal Appeal No. 859 of 2016, decided on September 6, 2016.

    [3] (2001) 3 SCC 462

    [4] (1999) 7 SCC 467

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    ‘IN RE -Vs.- BLOG PUBLISHED BY JUSTICE MARKANDEY KATJU’; ‘Suo Moto Contempt(Criminal) 4 OF 2016’ & ‘Suo Moto Contempt(Criminal) 5 OF 2016′”

    SUPREME COURT OF INDIA
    The Supreme Court's notice to Justice Markandey Katju ignores valid precedents. Credit: PTI

    Case Status Status : PENDING
    Status of : Suo Moto Contempt(Criminal)    4    OF   2016
    IN RE   .Vs.   BLOG PUBLISHED BY JUSTICE MARKANDEY KATJU
    Subject Category : CONTEMPT OF COURT MATTERS
    SUO MOTO CRIMINAL CONTEMPT MATTERS
    Listed 0 times earlier                                         Likely to be Listed on : 06/01/2017
    Last updated on 25-11-2016

    SUPREME COURT OF INDIA

     

    Case Status Status : PENDING
    Status of : Suo Moto Contempt(Criminal)    5    OF   2016
    IN RE:   .Vs.   BLOG PUBLISHED BY JUSTICE MARKANEY KATJ
    Subject Category : CONTEMPT OF COURT MATTERS
    SUO MOTO CRIMINAL CONTEMPT MATTERS
    Listed 0 times earlier                                       Likely to be Listed on : 06/01/2017
    Last updated on 25-11-2016

    Who Will Guard The Guardians: A Glimpse At The Confrontation Of Justice Katju’s Contempt -By: Pawan Reley | November 24, 2016

    A SURVIVAL KIT FOR ALL –BY JUSTICE DIGVIJAY MOTE – APPEAL FOR PATRIOTIC DONATIONS- A INDIAN CONSTITUTIONAL DOCUMENT – 24 Nov 2016

    “‘Treat contempt with contempt: Contempt’- ‘Notice Against SCI Retired Justice Markandey Katju’”- 24 Nov 2016

    An ill-judged conflict – 24 Nov 2016

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    Who Will Guard The Guardians: A Glimpse At The Confrontation Of Justice Katju’s Contempt -By: Pawan Reley | November 24, 2016

    In an unprecedented action, the Supreme Court on 11.11.2016 in Court Room No. 6, through its Suo Motu Contempt Petition (Criminal) No. 4 & 5 OF 2016 on the blog published by Justice Markandey Katju dated 17th and 18th September, 2016- Titled ”Soumya Murder Case” and “The Intellectual Level of Supreme Court Judges” respectively, while issuing a Contempt Notice to the Ex Judge of the Hon’ble Supreme Court Justice Markandey Katju, has evidently created the unparallel history of the future. The said incident was reported by the Media in different words and angles but in one spirit. India Today reported it in the following words: “Is there anyone to escort Katju out of court, SC asks after ex-judge stirs drama.” (India Today, New Delhi, November 12, 2016 | UPDATED 07:58 IST)
    Katju New LL Size
    The Hindu exposited it as, “At one point, when Justice Katju continued to protest, Justice Gogoi asked security personnel to escort the retired judge out of the packed courtroom amid chants of “wrong, wrong, wrong” from lawyers”. (The Hindu, Updated: November 12, 2016 01:20 IST) Press Trust of India News set forth it as, “Justice Gogoi warned him saying don’t provoke us any more to which Katju said you are provoking me by this type of threat. You requested me to come here and assist you.” (Press Trust of India News, Updated: November 12, 2016). Rediif.com reported it in the following words:  “High drama in SC as Katju is escorted out after heated exchange with judges”. (Rediif.com , November 11, 2016 19:04 IST) A slight anatomy of the said prefatory reports of Media which have attracted the sans emotion and sans populist perception of many, if true in toto, axiomatically frescoes catena of pragmatic questions of law which are still unknown to many in the legal sodality. One of which can eminently be emanated, viz.: Whether your Lordships of the Hon’ble Supreme Court, while being provoked by the Statements of the Justice Katju in the discharge of their judicial functions, asking someone to escort him out of court or smashing his reputation as he has already bartered it, went anathema to the well settled law enunciated by the Hon’ble Supreme Court? The analysis of the said question is in two parts. First, it encapsulates the law laid down by the Hon’ble Supreme Court on the conduct of the Hon’ble judges/justices in the discharge of their judicial functions. Second, it establishes through the judicial precedents that how Court should be cautious in making any remarks on anyone disparaging his or her reputation. It also evinces the effect of going against the law laid down by the Hon’ble Supreme Court by the Judges of the Supreme Court themselves and its remedy per se.  Judicial Vetting On The conduct of the Hon’ble Judges: Before going into the law laid down by the Hon’ble Supreme Court of India in this regard, one may profitably disgorge a passage of Mr. Justice Frankfurter engrafted under ‘A Heritage for all Who Love the Law,’ 51 A.B.A.J. 330, 332 (1965) undraping the exercise of judicial duty in discharge of Judicial Function, Viz.: “For the highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the law of which we are all guardians – those impersonal convictions that make a society a civilized community, and not the victims of personal rule.” Further, Mr. Justice Frankfurter in Foreword, to Memorial issue for Robert H. Jackson, 55 Columbia Law Review (April, 1955) P. 436 postulated on the Justice’s functioning in the Court in the following words: “What becomes decisive to a Justice’s functioning on the Court in the large area within which his individuality moves is his general attitude towards law, the habits of mind that he has formed or is capable of unforming, his capacity for detachment, his temperament or training for putting his passion behind his judgment instead of in front of it.” In this context, Bhagwati, CJ in the case of State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566, while observing on the harsh language used by the judges, held to the following effect: “We may observe in conclusion that judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.” Mr. Justice Shetty, K. in the case of A.M. Mathur v. Pramod Kumar Gupta and others, (1990) 2 SCC 533 while setting forth the connection between the Judicial restraint and discipline in the administration of justice held in the following terms: “…Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of          our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process. The Judges Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legit- imate the use of power by other officials. The Judges          have the absolute and unchallenged control of the Court domain. But they cannot misuse their authority by intemperate            comments, undignified banter or scathing criticism of counsel, parties or witnesses….” Hon’ble Supreme Court recently in the case Om Prakash Chautala Vs. Kanwar Bhan, (2014) 5 SCC 417 while criticizing the adverse remarks made by the Judge of the lower Court held in the following terms:  “It needs no special emphasis to state that a judge is not to be guided by any kind of notion. the decision making process expects a judge or an adjudicator to apply restraint, ostracise perceptual subjectivity, make one’s emotions subservient to one’s reasoning and think dispassionately. He is expected to be guided by the established norms of judicial process and decorum…” Judicial Adverse Remarks Vis-À-Vis Right To Reputation: Judicial Precedents: This part of analysis can exquisitely be broached from the Blackstone’s commentary of the laws of England, Vol- I (IVth Edition), where it has been stated at page 101 that the right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. Mr. Deepak Misra J. in Om Prakash Chautala v. Kanwar Bhan, (2014) 5 SCC 417, Para. 1 magnificently explicated the ambit of the word “Reputation” in the following terms: “Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person’s reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audi alteram partem before anything adverse is said.” The case of D.F. Marion v. Davis, 55 American Law Reports, page 171 which was cited in concatenation of Indian Judgments including in Kiran Bedi v. Committee of Inquiry and another, (1989) 1 SCC 494, Para. No. 25 had stated, viz.: “The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.” The Hon’ble Supreme Court in the case of Umesh Kumar v. State of Andhra Pradesh and another, (2013) 10 SCC 591, observed in the following words: – “Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution. The International Covenant on Civil and Political Rights, 1966 recognises the right to have opinions and the right to freedom of expression under Article 19 is subject to the right of reputation of others.” Mr. Deepak Mishra J. in the case of Mehmood Nayyar Azam v. State of Chhattisgarh and others, (2012) 8 SCC 1 has observed the interrelation of Human dignity and reputation in the following terms: “..The reverence of life is insegregably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, “a brief candle”, or “a hollow bubble”. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”. When a dent is created in the reputation, humanism is paralysed. There are some megalomaniac officers who conceive the perverse notion that they are the `Law’ forgetting that law is the science of what is good and just and, in very nature of things, protective of a civilized society. Reverence for the nobility of a human being has to be the corner stone of a body polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence, and the majesty and sacrosanctity dignity cannot be allowed to be crucified in the name of some kind of police action.” In the case of Vishwanath Agrawal v. Sarla Vishwanath Agrawal, (2012) 7 SCC 288, the Hon’ble Supreme Court, while dealing with the aspect of reputation, observed that reputation is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished values this side of the grave. It is a revenue generator for the present as well as for the posterity. After scanning the anatomy of the laws laid down by the Hon’ble Court and different principles set out by the eminent jurist, it is thus evident, that if the aforesaid media reports were true in toto, then your Lordships of the Hon’ble Supreme Court, while being provoked by the Statements of the Justice Katju in the discharge of their judicial functions and asking someone to escort him out of Court, have gone anathema to the well settled law enunciated by the Hon’ble Supreme Court on the Judge’s Conduct in the Court and Right to Reputation of the parties. However, the effect of going against the law laid down by the Hon’ble Supreme Court by the Judges of the Supreme Court themselves is still unvoiced and silent. The hoi polloi in the democratic republic are aghast that their fundamental Right to Reputation enshrined under Article 21 of the Constitution of India, when affected by the judges of the Apex Court, Seems to be myth of their rights as projected by Ashutosh Bhagwat in his book “The Myth of Rights” (Oxford Publication). As maintained by the famous Latin legal maxim i.e. “Ubi Jus Ibi Remedium” which means “where there is a right there is a remedy”, if the remedy is in non existence then the existence of the “rights” and “law supporting the rights” are also otiose. When the said laws enumerated in the judgments of the Hon’ble Supreme Court are not followed by the judges of the Hon’ble Supreme Court themselves, and if there is no remedy for the enforcement of the same, the “law” does not appear to be “law” but merely “Morality or Myth laid down by the Hon’ble Court”. The paramount question taking a rise here is that why there is no remedy against the Judges of the Hon’ble Supreme Court even if they violate fundamental rights or go against the precedents laid down by them or whether they never violate the fundamental rights at all or never go against the precedents laid down by them. It is due to the following pragmatic reasons: Hon’ble Judges, when perform the judicial functions better known as “judicial proceedings” are not amenable to Writ Jurisdiction engrafted under the Constitution of India. [R.Antulay vs. R.S. Nayak and another (1988) 2 SCC 602]. Thus, no Writ Petition for violation of one’s fundamental rights can be filed against them or against any judicial proceeding. Hon’ble Judges are absolutely immune under the aegis of Judges Protection Act, 1985. Section 2 (1) of the Act provides, viz.: “No Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function” However, Section 2 (2) of the same provides that Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force can take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge. It is to be noted that no remedy is left with the Person whose rights or fundamental rights are violated. Contempt proceedings cannot be initiated against the Judges of the Hon’ble Supreme Court and High Court under Contempt of Court Act, 1985. Though, Section 16 of the Contempt of Court Act provides Contempt by judge, magistrate or other person acting judicially but meaning of “judge” under this Section does not include the judges of Hon’ble Supreme Court and High Court but merely “Subordinate Court”. [Harish Chandra v. S. Ali Ahmed, 1987 Cr LJ 320 (Pat)]. As far as the Contempt of Supreme Court is concerned, it is governed by “Rule to regulate proceedings for Contempt to the Supreme Court, 1975 G.S.R. 142, which contains sixteen rules in itself, however, no rule provides the “Contempt of Court by the Judges of the Supreme Court themselves”. Impeachment is not in the hand of party to the case and highly tedious and impractical procedure to give remedy to the party affected, thus not provided here. Ergo, the said problems in form of panic in people’s mind that who will guard the guardians, if the guardians themselves go against the law laid by them, can only be solved by the Guardians themselves through “Guardian Self Restraint” (Judicial Self Restraint). It is absolutely on the Guardians to maintain “law” as “law” under Article 141 of the Constitution and “right” as “right” under Part III of the Constitution or merely disgorge them as “myth” or “morality”. We certainly have full faith in the Guardians of our Constitution. Of course the Hon’ble Supreme Court of India is one of the most active Courts in the world when it come to the protection of fundamental, Constitutional and Human rights of the People. It is the Court which has liberalized the Locus Standi of the people and has permitted the public spirited persons to file a writ petition for the enforcement of Constitutional and statutory rights of any other person or a class in form of “Public Interest Litigation”. There are hardly any field left including the prison, work, pension, environmental pollution and others, where the Hon’ble Supreme Court has not stepped into to protect the rights of the people. However, no one is impeccable in the world so are the judges. Thus, we all cannot escape from the observations of Felix Frankfurter, J., made on the Nature of Judicial Process of Supreme Court Litigation 98 Proceedings AM Phil Society 233 (1954), which provides that it is true that the judges are flesh and blood mortals with individual personalities and with normal human traits. Still what remains essential in judging is freedom from passion, judicial discipline, no heroism and no rhetoric. Therefore, the Hon’ble Judges of the Apex Court must act with sobriety, moderation and restrain themselves from being provoked and being trammeled to constitutional limitations must follow its own well settled principles in order to maintain faith and conviction in the Judiciary. Suffice it say, the right of reputation of the person until proven guilty must be respected at the fall of the hammer as it is revealed in Bhagavad Gita, Chapter 2, Verse No. 34, viz. Akīrtiṁ chāpi bhūtāni, kathayiṣhyanti te ’vyayām sambhāvitasya chākīrtir maraṇād atirichyate (People will speak of you as a coward and a deserter. For a respectable person, infamy is worse than death.) – Bhagavad Gita, Chapter 2, Verse No. 34. Pawan Reley is an Advocate in the Supreme Court of India. [The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same] This article has been made possible because of financial support from Independent and Public-Spirited Media Foundation. Topics:Contempt against Justice Katju Justice Dipak Misra Justice Markandey Katju Supreme Court of India

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