The Hon'ble Mr. Justice (Retd.) Markandeya Katju was issued a notice (vide order dated 11.11.2016, to show cause as to why proceedings for Criminal Contempt of the Supreme Court be not drawn up against him. The order can be seen here http://sci.nic.in/FileServer/2016-11-12_1478947169.pdf
Mr. Katju being a retired judge was "requested" by a "notice" to
appear before the court vide the Court's order dated 17.10.2016. The
context for the same is as follows (as contained in the order dated
17.10.2016):
"A Former Judge of this Court Justice Markandey Katju
in a blog published on Facebook has expressed an opinion
that the judgment and order dated 15th September, 2016
passed by this Bench in Criminal Appeal No.1584-1585 of
2014 needs to be reviewed in an open Court hearing. Such a
view coming from a retired Judge of this Court needs to be
treated with greatest of respect and consideration. We,
therefore, reproduce herein below the blog published by Justice Katju in Facebook and convert the same into a suo
motu review petition."
I would urge readers to pay particular attention to the line “Such a view coming from a retired Judge of this Court needs to be TREATED with GREATEST of RESPECT and CONSIDERATION."
After reproducing the contents of the blog, the order proceeded as follows:
"We issue notice to Justice Markandey Katju, former
judge of this Court and request him to appear in Court in
person and participate in the proceedings on 11th November,
2016 at 2.00 p.m. as to whether the judgment and order
dated 15th September, 2016 passed by this Bench in Criminal
Appeal No.1584-1585 of 2014 suffers from any fundamental
flaw so as to require exercise of the review jurisdiction."
A perusal of the language
shows that on 17.10.2016, the Court only "REQUESTED" the former judge to
appear "IN PERSON" and "PARTICIPATE" in the proceedings. Was it open
for the former judge to refuse to accept this request cannot be answered
conclusively since the request was made through a "NOTICE" and both the terms are in sharp conflict with each other. While request is respectful and compliance thereof depends upon the recipients will, notice is a command intended not to be ignored and mandatorily complied.
It is also curious that something that merited GREATEST of RESPECT and CONSIDERATION, how could it be deemed contumacious at the same time? It’s like hot and cold in the same breath.
Although Mr. Katju is the most aggressive advocate of Right to Freedom of Expression, so much so, even indulging himself in testing waters to the most extreme extents, he mysteriously chose not to speak anything on this notice. His blog containing opinions on all issues big and small (the latest one being on demonetisation of Rs.500 and Rs.1000 notes), is deafeningly silent on the issue beforehand.
Now when Mr. Katju appears before the court on 11.11.2016, the following order is passed:
(i) The Review Petition drawn on the basis of Mr. Katju's blog is dismissed.
(ii) Extracts from two of the relevant blogs are reproduced, which are as follows:
“But the statements of PW4 and PW 40 were
hearsay evidence. PW4 and PW40 do not say that
they themselves saw Saumya jumping off the
train. And hearsay evidence is inadmissible in
evidence vide Section 6 of the Indian Evidence
Act, except in certain limited circumstances
e.g. a dying declaration or opinion of an
expert. None of those limited circumstances
existed in this case. So how could the Court
rely on this hearsay evidence? This was a grave
error in the judgment, not expected of judges
who had been in the legal world for decades.
Even a student of law in a law college knows
this elementary principle that hearsay evidence
is inadmissible.”
In RE - THE INTELLECTUAL LEVEL OF SUPREME COURT
JUDGES” dated 18th September, 2016 :
“Justice Gogoi, who is in line to become the
Chief Justice of India on the basis of
seniority, has shown that he does not know an
elementary principle of law, namely that
hearsay evidence is not admissible (see
paragraph 16 of his judgment in the Soumya
murder case).”
The court then proceeded to observe as follows:
"Reference to the author of the judgment must
necessarily include the other members of the Bench. Prima
facie, the statements made seem to be an attack on the
Judges and not on the judgment.
We therefore, issue notice of contempt to show cause
why contempt proceedings should not be drawn up against
Justice Markandey Katju and he be appropriately dealt with"
(The order dated 11.11.2016 can be accessed here http://sci.nic.in/FileServer/2016-11-12_1478947169.pdf"
The portion "Reference to the author of the judgment must
necessarily include the other members of the Bench." is very intriguing. What would have been the effect of "including" reference to other members of the bench is unclear.
The issue has now assumed great importance. Previously it concerned merits of only one particular case. Now since proceedings have been drawn up on a blog, the case has begun concerning each and every citizens right to freedom of expression as far as criticism of judgments of the Courts are concerned. The precedent created by the final order of the proceedings shall be followed by all courts below. No advocate of the right to freedom of expression has trained gun either way as at the time of writing this blog
Before anyone proceeds to formulate her / his opinion the following legal provisions and precedents must be kept in mind. I must hasten to add that the list is not exhaustive, but is only indicative.
1. Article 124(7) of the Constitution of India reads thus:
"(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India."
2. Explanation (i) to Rule 2 of Order IV of the Supreme Court Rules, 2013 defines "Acting", but that is confined to Order IV only. However a consideration of the same would not be without benefit. It reads thus:
"(i) ‘acting’ means filing an appearance or any
pleadings or applications in any court or tribunal in India, or any act (other
than pleading) required or authorised by law to be done by a party in such
court or tribunal either in person or by his recognised agent or by an advocate
or attorney on his behalf;"
3. S.2(c) of the Contempt of Courts Act, 1971 defines Criminal Contempt of Court as follows:
"(c) “criminal contempt” means the publication
(whether by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the doing of any other act
whatsoever which—
(i) scandalises or tends to scandalise, 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;"