Who Will Guard The Guardians: A Glimpse At The Confrontation Of Justice Katju’s Contempt

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 18^th 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)

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]

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