1.SC to study context of charges against judges

It will hear arguments on process to make allegations public

• The Supreme Court on Monday decided to launch a detailed examination into the circumstances under which a person can make public allegations of corruption against the judiciary.
• A three-judge Bench led by Justice Arun Mishra also decided to hear arguments on laying down procedure to be adopted if such statements of corruption are made in public against sitting as well as retired judges.

Prashant Bhushan case

• The Bench framed the two questions while hearing a contempt case initiated against advocate Prashant Bhushan for his remarks on corruption in judiciary in an interview to Tehelka magazine published in 2009.
• “In what circumstances can such statements [on judicial corruption] be made? Under what circumstances can these allegations need to be made public… We need to hear arguments on these issues,” Justice Mishra observed, listing the case for hearing on Monday.

1992 judgment

• The Bench referred to the majority judgment delivered by Justice (as he was then) J.S. Verma for a Constitution Bench in 1992 concerning the removal of Justice V. Ramaswami, a Supreme Court judge.
• The judgment had laid down the procedure to deal with allegations against a sitting judge. The judge had to be given a fair opportunity to be heard before an inquiry committee formed under the Judges Inquiry Act of 1968. The judgment had limited the inquiry process against a judge to be done within a tight and limited circle of high judicial functionaries and parliamentarians. It did not want “busybodies to meddle”.
• The dominating spirit of the 1992 judgment was to “preserve the right, interest and dignity of the judge, which is commensurate with the dignity of all the institutions and functionaries involved in the process”.
• The Bench said the judgment was against publicly making allegations against judges. But senior advocate Rajeev Dhavan, for Mr. Bhushan, said the “idea that you [a critic] cannot go to the Press is a bad decision”.

2. What is criticism and what is contempt?

Whether a comment constitutes criminal contempt would necessarily be decided on the facts of each case

A recent order of the Supreme Court found advocate Prashant Bhushan guilty of contempt for two tweets — one relating to the Chief Justice of India astride an expensive motorcycle and the other a comment that the Supreme Court, in his opinion, played a role in the destruction of democracy in India over the last six years.

Criminal contempt

• For the purpose of the topic at hand we are concerned only with criminal contempt and not those wilfully disobedient litigants who ignore the orders of the courts. Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as the publication of any matter or the doing of any other act which scandalises or lowers the authority of any court; or prejudices or interferes with the due course of any judicial proceeding; or obstructs the administration of justice.
• Does this mean that one can never voice any criticism of the judiciary? No. What the law permits you to say regarding the functioning of Indian courts forms the basis of this particular article, i.e., there is a thin line separating criticism and contempt.
• Freedom of speech is a fundamental right guaranteed to every Indian citizen under Article 19(1)(a) of the Constitution, albeit subject to reasonable restrictions under Article 19(2). In C.K. Daphtary v. O.P. Gupta (1971), the Supreme Court held that the existing law of criminal contempt is one such reasonable restriction. That does not mean that one cannot express one’s ire against the judiciary for fear of contempt.
• As long back as in 1968, Lord Denning M.R. set out guidelines in matters of contempt of court. He stated that contempt is not the means to uphold the court’s dignity. He said its jurisdiction is to be exercised sparingly and that protection of freedom of speech is paramount. While welcoming criticism, Lord Denning only requested that it be fair since judges, owing to their status, are not in a position to refute the comments so levelled against them.
• What does the Indian judiciary deem permissible and impermissible? The Supreme Court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious. If the comment is made against the judge as an individual, the Court would consider whether the comment seeks to interfere with the judge’s administration or is simply in the nature of libel or defamation. The Court would have to determine whether the statement is fair, bona fide, defamatory or contemptuous.
• A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function. Criminal contempt does not seek to afford protection to judges from statements which they may be exposed to as individuals. Such statements would only leave the individual liable for defamation. Statements which affect the administration of justice or functioning of courts amount to criminal contempt since public perception of the judiciary plays a vital role in the rule of law. An attack on a judge in his or her official capacity denigrates the judiciary as a whole and the law of criminal contempt would come down upon such a person unless it is a fair critique of a judgment.

Various examples

• Sections 4 and 5 of the Contempt of Courts Act are akin to a defense a person may take in a case of defamation i.e., fair comment. In Re: S.Mugolkar v. Unknown (1978), the Supreme Court held that the judiciary cannot be immune from fair criticism, and contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence the courts. In this judgment, Chief Justice M.H. Beg opined that at times the judiciary adopts a “magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bona fide concern for improvement.”
• The same Justice Beg remarked post-retirement that Justice H.R. Khanna’s famous dissent in the ADM Jabalpur case (1976) made no contribution to law but only to his popularity. The Allahabad High Court citing Brahma Prakash Sharma (1953) did not find Justice Beg guilty of contempt.
• Former Law Minister of India, P. Shiv Shankar, referring to landmark judgments of the Supreme Court, said once: “Mahadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic chord nowhere in the whole country except the Supreme Court of India. And the bank magnates… got higher compensation by the intervention of the Supreme Court in Cooper’s case.” He also said: “Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.”
• Speaking for the Supreme Court in 1988, Justice Sabyasachi Mukherjee found that these statements did not impair the administration of justice. He only opined that the language could have been milder given the Minister’s own legal background. He also said: “If antisocial elements and criminals have benefited by decisions of the Supreme Court, the fault rests with the laws and the loopholes in the legislation. The Courts are not deterred by such criticisms.”
• Truth is also a defence in matters of criminal contempt if it is bona fide and made in public interest, as held by the Supreme Court in Indirect Tax Practitioners’ Association v. R.K. Jain (2010).
• However, all these precedents did not come to the aid of activist Arundhati Roy when the Supreme Court found her guilty of contempt. A petition was filed against Ms. Roy, which was dismissed by the apex court. However, it was Ms. Roy’s reply to the petition which was held to be in contempt. In that, Ms. Roy had admonished the Supreme Court for acting with undue haste in a frivolous petition and attributed it to her strong critique of the apex court’s decision in the Sardar Sarovar Dam case. The Supreme Court held that a statement that the Court willingly issued notice on an unsubstantiated petition affected the reputation and credibility of the Court before the public and therefore found Ms. Roy guilty of contempt.
• The above cases would show that whether a comment would constitute criminal contempt or not depends entirely on the facts and circumstances of each case. In conclusion, tweets or remarks by conscientious citizens certainly do not affect the dignity of the Indian judiciary, to quote Lord Denning “that must rest on surer foundations”.

3. Jurisdictional conflict in the running of Delhi

In the prosecutors’ issue, the Lt. Governor’s acts have not been in consonance with the Supreme Court’s 2018 ruling

• “The exercise of establishing a democratic and representative form of government for NCT of Delhi by insertion of Articles 239AA and 239AB would turn futile if the Government of Delhi that enjoys the confidence of the people of Delhi is not able to usher in policies and laws over which the Delhi Legislative Assembly has powers to legislate for the NCT of Delhi.” So said the Constitution Bench of the Supreme Court in Government of NCT of Delhi vs. Union of India (2018). The issue before the Supreme Court was the jurisdictional conflicts between the government of NCT and the Union Government and its representative, the Lieutenant Governor.

Issues and possible solutions

• The judgment which runs into more than 1,000 pages analyses the contentious issues which hobbled the State government and attempts to resolve them. Very lofty principles concerning constitutional morality, co-operative federalism, constitutional conscience, pragmatic federalism, etc., have been enunciated in this judgment. It reminds the Lt. Governor what his real functions are. It tells the State government that it should remember that Delhi is a special category Union Territory and lays down the parameters to enabling the harmonious functioning of the government and the Lt. Governor.
• The judgment clarified and settled many contentious issues such as the powers of the Lt. Governor vis-à-vis the elected government, his discretionary powers, the extent of the executive powers of the State government, etc. On the face of it, it did not very clearly delineate the issues in respect of which the Lt. Governor can refer a decision taken by the Council of Ministers to the President in the event of a difference of opinion between the Lt. Governor and the State government. Nevertheless, the Supreme Court has settled the law in regard to the ‘aid and advice’ of the Council of Ministers by affirming that the Lt. Governor is bound to act on the aid and advice except in respect of ‘Land’, ‘Public Order’ and the ‘Police’.
• The Court has also made it clear that there is no requirement of the concurrence of the Lt. Governor and that he has no power to overrule the decisions of the State government. However, there is a catch here — in the operationalisation of Article 239AA (4) (proviso) which says that in the case of a difference of opinion between the Lt. Governor and his Ministers on any matter, the Lt. Governor shall refer it to the President for decision and act according to that decision.
• In the meantime, if the Lt. Governor thinks that the matter is urgent he can take immediate action on his own. So, ultimately things are back to square one. If a Lt. Governor, for example, wants to frustrate the efforts of the government, he can declare that there is a difference of opinion on any issue decided by the elected government and refer it to the President which in reality means the Union Home Ministry. The Lt. Governor being its representative, it is easier for him to secure a decision in his favour. The State government will be totally helpless in such a situation.

Delhi riot cases

• The recent appointment of prosecutors for conducting the Delhi riot cases in the High Court is a case in point. As per the High Court and the Supreme Court, the appointment of prosecutors is exclusively within the purview of the State government. When the government decided to appoint them, the Lt. Governor referred it under proviso to Article 239AA (4) to the President stating that there is a difference of opinion between him and the government over this matter. In the meantime the Lt. Governor appointed all the prosecutors whose names were submitted by the Delhi Police and thus the State government’s list was rejected.
• This episode clearly points to the fault lines which still exist in the power equations in the capital’s administrative structure. The key question is whether the Lt. Governor can refer a routine administrative matter such as the appointment of prosecutors to the President.
• A close reading of the Supreme Court judgment in the NCT Delhi case (supra) would reveal that he cannot. Just take a look at what the Supreme Court says. “The words ‘any matter’ employed in the proviso to Article 239AA (4) cannot be inferred to mean ‘every matter’. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lt. Governor. Keeping in mind the standards of Constitutional trust and morality, the principles of collaborative federalism and the concept of Constitutional balance….”

Matters of jurisdiction

• The Court further says, “the Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President.” The highest judicial forum in the country in its own majestic style directs the Lt. Governor not to refer to the President normal administrative matters as that would disturb the concept of Constitutional governance, principles of collaborative federalism and the standards of Constitutional morality. Reference of the appointment of Prosecutors by the Lt. Governor to the President seems to be a negation of these principles.
• There is another point which emerges from the judgment and attention needs to be paid to it. That is that the executive power of the Union does not extend to any of the matters which come within the jurisdiction of the Delhi Assembly. Parliament can legislate for Delhi on any matter in the State List and the Concurrent List but the executive power in relation to Delhi except the ‘Police’, ‘Land’ and ‘Public Orders’ vests only in the State government headed by the Chief Minister.
• The Supreme Court says, “Article 239AA (3)(a) reserves the Parliament’s legislative power on all matters in the State List and Concurrent List but clause (4) explicitly grants to the Government of Delhi executive powers in relation to matters for which the Legislative Assembly has powers to legislate.” This statement of law by the Supreme Court implies that the Union Government is not empowered to exercise executive authority on a matter which comes within the exclusive jurisdiction of the State government like the appointment of Prosecutors. The only occasion when the Union Government can overrule the decision of the State government is when the Lt. Governor refers a matter to the President under the proviso to clause (4). But this proviso cannot totally override the executive decisions of the State government under clause (4).
• The judgment of the Supreme Court resolves this apparent contradiction by enjoining the Lt. Governor to keep in mind while making a reference to the President the constitutional morality, principles of collaborative federalism, concept of constitutional governance, objectivity, etc. Although the Court did not specify the matters which can be referred by the Lt. Governor to the President, the high principles described above broadly indicate what can be referred and what cannot. In any case it is unambiguously clear that the executive decisions of the State government cannot be referred to the President merely because the Lt. Governor has a different personal opinion about some of them. The top court wants the Lt. Governor and the Council of Ministers to use in full the mechanism provided in the Government of NCT of Delhi Act and the Transaction of Business Rules to thrash out differences. The Court seems to elevate to a higher level the issues that can be referred to the President as distinct from the normal decisions taken in exercise of the executive powers of the State. The President is the highest Constitutional authority and his decision should be sought only on constitutionally important issues.

The last word

• Finally, the Supreme Court gives wise advice to the Lt. Governor: “We may reiterate that the Constitutional scheme adopted for the NCT of Delhi conceives of the Council of Ministers as the representatives of the people on the one hand and the Lt. Governor as the nominee of the President on the other who are required to function in harmony within the Constitutional parameters. In the said scheme of things, the Lt. Governor should not emerge as an adversary having a hostile attitude towards the Council of Ministers of Delhi; rather, he should act as a facilitator.”
• So, when we analyse the reference by the Lt. Governor to the President the issue of appointment of prosecutors within the parameters laid down by the Supreme Court, we find that it is not in consonance with these principles enunciated by the Court. It is against constitutional morality which requires strict adherence to the constitutional principles of collaborative federalism, constitutional balance and the concept of constitutional governance. All these principles act as bulwark against the usurpation of powers of the State by the Union. When the Court declares the law and requires the constitutional authorities to follow it, they have to act in compliance and not in defiance.