Rashid Khan Pathan Email: rkp01786@gmail.com: Chief Justice of Supreme Court found guilty

Chief Justice of Supreme Court found guilty of violation of the fundamental rights of a citizen.

United Nations Human Rights Committee slammed the Supreme Court Chief Justice for arbitrary conviction and detention in Criminal Contempt.

Committee directed Government to provide compensation to the contemnor.

19 Judges’ Committee including Justice P. N. Bhagawati of Supreme Court of India observed that the sentence of imprisonment in criminal contempt was draconian & arbitrary.

The UN committee of 19 Judges, directed the government to amend their law/constitution to provide compensation to the petitioner and to prevent such violations by the Supreme Court in future.

In Prashant Bhushan’s case Justice Khanwilkar’s Bench considered the said legal position (Judgment) as a valid ground for stay of proceedings regarding review of the conviction and sentence.

This ratio will impact on other high profile cases that of of Vijay Mallya, Subrata Roy Sahara, Adv. Nilesh Ojha, Rashid Khan Pathan & Adv. Vijay Kurle etc.

The most serious case is of Subrata Roy Sahara, who was put behind the bars by the Supreme Court for around 2 years under contempt, when the maximum punishment for committing contempt is six months.

As per Indian Penal Code such Judge should face prosecution under Section 220, where Judge will get seven years imprisonment.

This blog divided in two parts;
i) Case before United Nation Human Rights Committee.
ii) Its impact on Re: Prashant Bhusan, Re: Vijay Kurle, Subrata Roy Sahara & Dr. Vijay Mallya and other similar cases.

1. Case before U.N. Human Rights Committee.

Citation: Anthony Michael Emmanuel Fernando Vs. Sri Lanka 2005 SCC OnLine HRC 22.
1.1. The petitioner Anthony Fernando filed a petition before United Nation High Commissioner for Human & arbitrary Rights alleging unlawful conviction & sentence under contempt by the Supreme Court headed by the Chief Justice.
1.2. The Supreme Court of Sri Lanka convicted and sentenced him under contempt for rigorous imprisonment of 1 year. He was convicted and sentenced by the Supreme Court without framing any charge, without providing any legal aid, without any opportunity to defend the case and without giving reason as to why sentence of imprisonment is necessary.
He was not provided any higher appellate tribunal against her conviction under contempt by the Supreme Court.
1.3. The Government (state party) submitted that the Supreme Court is an independent authority and not under state's control. The petitioner was given opportunity to tender apology but he failed to express regret.
1.4. The United Nations Human Right Committee having 19 Judges Members including Justice P. N. Bhagwati, the former Supreme Court Judge from India strongly criticized the Supreme Court and concluded that the conviction and sentence under contempt by the Supreme Court was arbitrary & draconian. Committee directed the state party to provide the petitioner with an adequate remedy including compensation and to amend constitution which are necessary to avoid similar violation in future.
It is concluded by the committee as under;
9.2 The Committee notes that courts notably in Common Law jurisdictions have traditionally enjoyed authority to maintain order and dignity in court debates by the exercise of a summary power to impose penalties for “contempt of court.” But here, the only disruption indicated by the State party is the repetitious filing of motions by the author, for which an imposition of financial penalties would have evidently been sufficient, and one instance of “rais [ing] his voice” in the presence of the court and refusing thereafter to apologize. The penalty imposed was a one year term of “Rigorous Imprisonment”. No reasoned explanation has been provided by the court or the State party as to why such a severe and summary penalty was warranted, in the exercise of a court's power to maintain orderly proceedings. Article 9, paragraph 1, of the Covenant forbids any “arbitrary” deprivation of liberty. The imposition of a draconian penalty without adequate explanation and without independent procedural safeguards falls within that prohibition. The fact that an act constituting a violation of article 9, paragraph 1 is committed by the judicial branch of government cannot prevent the engagement of the responsibility of the State party as a whole. The Committee concludes that the author's detention was arbitrary, in violation of article 9, paragraph 1. In the light of this finding in the present case, the Committee does not need to consider the question whether provisions of article 14 may have any application to the exercise of the power of criminal contempt. Similarly, the Committee does not need to consider whether or not there was a violation of article 19.

10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party has violated articles 9, paragraph 1, of the International Covenant on Civil and Political Rights.

11. In accordance with article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide the author with an adequate remedy, including compensation, and to make such legislative changes as are necessary to avoid similar violations in the future. The State party is under an obligation to avoid similar violations in the future.

12. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of the Covenant or not and that, pursuant to article 2, of the Covenant, the State party has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant, the Committee wishes to receive from the State party, within 90 days, information about the measures taken to give effect to its Views. The State party is also requested to publish the Committee's Views.

1.5. In a similar case the committee in the cases of conviction by the Supreme Court has observed that, failure to provide one Appeal by larger Bench violated the Article 14 ICCPR and directed compensation with warning and warned the various countries such as Spain, New Zealand, Ukraine, Russia etc. to provide one appellate jurisdiction which is different than the power of the review by the Supreme Court.
          [See: Luis Olivero Capellades Vs. Spain 2006 SCC OnLine HRC 42, Sergei Nicholaiovich Romanov Vs. Ukraine 2003 SCC OnLine HRC 54, Jesus Terron Vs. Spain 2004 SCC OnLine HRC 65, Dimitry Leonudovich Gridin Vs. Russian Federation 2000 SCC OnLine HRC 31].

1.6. The state were directed to pay the compensation to the victim for the mistakes committed by the Judges of the Supreme Court.

1.7. Five Judge Bench of Privy Council in the landmark judgement in the case of Ramesh Maharaj's case (1978) WLR 902 had laid down in similar law that if the unlawful conviction under Contempt is by the Judge of the Court then state is bound to pay the compensation as the Judiciary is the executive arm of the state.

Said ratio is acknowledged by the Supreme Court of India in D.K. Basu's case (1997) 1 SCC 416.

2.       EFFECT OF THE SAID RATIO IN INDIA ON THE CASES OF PRASHANT BHUSHAN AND OTHERS.

2.1. In India the issue of providing ‘Intra Court Appeal’ is in debate all over the country from two cases one of Adv. Prashant Bhushan & other is of Adv. Vijay Kurle, Adv. Nilesh Ojha and Rashid Khan Pathan.

2.2. 2.4. Justice Krishna Iyer sitting in Full Bench in the landmark judgment in Madhav Hoskot’s case (1978) 3 SCC 544 had ruled that the convicted person should have one appellate jurisdiction even if the conviction is by the Highest Court.
Said judgment is upheld by the Constitution Bench of Supreme Court in Anita Kushwaha’s case (2016) 8 SCC 509.
2.3. But except said lip service nothing constructive and result oriented approach adopted and the Supreme Court never set-up the ‘Intra-Court Appeal’.
2.4. However, legality of unlawful convictions of Police Commissioner M. S. Ahlawat under contempt and perjury by the two Judge Bench of the Supreme Court was considered and set aside in Writ Jurisdiction under Article 129 & 142 by the larger Full Bench in the judgment of M. S. Ahlawat Vs. State of Haryana (2000) 1 SCC 278.
Said jurisdictionunder Article 129 & 142 was again upheld by the Constitution Bench in Rupa Hurra Vs. Ashok Hurra (2002) 4 SCC 388.
2.5. Seven Judge Constitution Bench in A. R. Antulay’s case (1988) 2 SCC 602 in para 48 had ruled that Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty;
“48. According to Shri Jethmalani, the doctrine of per incuriam has no application in the same proceedings. We are unable to accept this contention. We are of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty. It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application. Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner. See the observations in Prem Chand Garg v. Excise Commissioner [AIR 1963 SC 996 : 1963 Supp (1) SCR 885].”
Same ratio is again followed in Lily Thomas Vs. Union of India (2000) 6 SCC 224.
2.6.   In Re: Prashant Bhushan and Re: Vijay Kurle the cases the advocates were convicted and sentenced by the Supreme Court without providing them the facility of Appeal, to challenge their conviction.

2.7. Adv. Prashant Bhushan and Rashid Khan Pathan filed Writ Petition for setting up the Intra Court Appeal.

2.8. Then he on 15.12.2020 has filed an I. A. No. 139168 of 2020 before the Bench of Justice A.M. Khanwilkar before whom the petition for review of conviction and sentence was pending.
2.9. In the said I.A. one of the ground was that as per International Covenant on (iv) Rights, he is entitled for one higher Appellate Tribunal.
The ground (iii) of the said I. A. reads thus;
“iii) 12.09.2020: Petitioner-Applicant preferred W.P. (C) NO. 1053/2020, (bearing Diary Number 19696/2020), which has a direct bearing on this Review Petition. Amongst other grounds, in line with India's obligations under Article 14(5) of International Covenant on Civil and Political Rights (ratified by India in 1976) which guarantees to everyone a right of appeal in a criminal conviction and the interpretation accorded thereto by the United Nations Human Rights Committee where the conviction in the first instance is by the highest court of the land in the cases of Terron v, Spain, o Comm. 1073/2002, U.N. Doc, A/60/40, VOL 11, at 111 (HRC 2004), Hens Serena and Corujo Rodriguez v. Spain, Comm. 13511352/2005, U.N. Doc A/63/40, vol. 11, at 93 (HRC 2008), Ratiani v. Georgia, Views, Human Rights Comm. 84th Scss., July 11-29, 2005, paras. 11.2-11.3, UN, Doc. No. CCPR/C/84/D/975/2001 (July 21, 2005), Olivero Capellades v. Spain, Comm. 1211/2003, U.N. Doc. A/61/40, vol. rx, at 327 (HRC 2006), Anthony Fernando v. Sri Lanka, Communication No. 1189/2003, U.N. Doc. CCPR/C/83/D/1189/2003 (2005), read with the Doctrine of Incorporation laid down by this Hon'ble Court in Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 3 534, and Article 51(c) and Article 253, the W.P. prays:
"a) Issue an appropriate writ, order or direction declaring that a person convicted for criminal contempt by this Hon'ble Court, including the petitioner herein, would have a right to an intra-court appeal to be heard by a larger and different bench.
b)       Issue an appropriate writ, order or direction framing rules and guidelines providing for intra-court appeal against conviction in original criminal contempt cases as referred in prayer (a.) above.
c)       Alternatively, issue an appropriate writ, order, or direction declaring that review petitions filed against orders of conviction by Supreme Court in original criminal contempt cases would be heard in open court by a different bench;
2.10. The said ground was accepted by the Full Bench of the Supreme Court headed by Justice A.M. Khanwilkar and on 16/12/2020 in the reported case In Re: Prashant Bhushan 2020 SCC OnLine SC 1146 had observed that the said ground and principles of natural justice mandates that the court should wait for outcome of the decision in Writ for Intra- Court Appeal. The court observed as under ;
“1. For the reasons mentioned in the application (I.A. No. 131968 of 2020) and in the interest of justice, the same is allowed in terms of prayer (I).
2. List the Review Petitions (Nos. 326 and 328 of 2020 respectively), after the disposal of the Writ Petition (C) No. 1053 of 2020.”
2.11. Principally Supreme Court accepted the right of the person to have on Appeal who is convicted under contempt by the Supreme Court.
2.12. But the said Writ Petitions filed by Adv. Prashant Bhushan, Rashid Khan, Adv. Nilesh Ojha & Adv. Vijay Kurle are not listed till date. The decision in above said Writ Petitions for setting up the Intra Court Appeal will impact the cases of other contempt conviction of Dr. Vijay Mallya & Subrata Roy Sahara etc..