The Supreme Court is set to hear a petition filed by Adv. Prashant Bhushan seeking the establishment of an "intra-court appeal" mechanism to larger benches of the court in cases of contempt.

 Petition of Adv. Nilesh Ojha, Adv. Vijay Kurle & Rashid Khan Pathan are also tagged together.

Bench of Justice Sanjiv Khanna Justice & Justice M.M. Sundresh will hear the case. [Matter listed at Sr. No. 44.]

Rashid Khan Pathan had prayed for reference of matter to Constitution Bench as question of interpretation of constitutional mandate is alleged.

Adv. Nilesh Ojha submitted written submissions for forwarding the reference to Constitutional Bench. He pointed out that there are conflicting decisions of the Supreme Court which is creating confusion.

Ojha cited the cases of conviction, sentence and detention of Subrato Roy Sahara, Zahira Shaikh, Perry Kansangra etc. which is beyond the limit of section 12 of the Contempt of Courts Act, 1971 and clear violation of Article 20(1) of the constitution and Article 15 of the International Covenant on Civil and Political Rights (ICCPR).

His submission also point out that despite the fact that the constitutional validity of the Contempt of Courts Act, 1971 is already upheld by the larger Benches of the Supreme Court  and a contrary judgment of a two Judge Bench in Pritam Pal’s case 1993 Supp (1) SCC 529 is overruled by the three – Judge Bench in Bal Thackrey’s case (2005) 1 SCC 254, few of the Benches of the Supreme Court are still following the said judgment and convicting the people on the basis of overruled judgment and confusion is being created amongst Lawyers, people and the Judges of Sub ordinate Courts and in result the majesty and dignity of this Hon’ble  Court is coming to disrepute.

He point out that the judgment in C. K. Daphtary Vs. O.P. Gupta (1971) 1 SCC 626 is a per incuriam and later statutory overruled judgment and clear verdict to that effect is given by the Supreme Court in P.N. Duda’s case (1988) 3 SCC 167 & Biman Basu v. Kallol Guha Thakurta, (2010) 8 SCC 673. Furthermore after the 2006 amendment and Constitution Benche’s judgment in Re: C.S. Karnan (2017) 7 SCC 1 & Subramanian Swamy v. Arun Shourie, (2014) 12 SCC 344, the judgment in C. K Daphtary’s case (1971) 1 SCC 626 had lost its value as a precedent.

Then also the petitioner including Adv. Prashant Bhushan were convicted and sentenced by relying the ratio laid down such  judgment.

The questions that arise for consideration in these matters are of general public importance.  Hence there is a  need  of an authoritative pronouncement by the Constitution Bench of 7 or 9 Judges to clear the cloud.

Earlier in the case of Dr. Subramanian Swamy v. Arun Shourie (2000) 10 SCC 331, a three Judge Bench of this Hon’ble Court in a proceeding under contempt had referred a matter of allowing truth as a defence  and the issue that the decision of the supreme Court needs reconsideration to the Constitutional Bench by observing that the questions that arise for consideration in these matters are of general public importance which are required to be considered by a Constitution Bench.

The written submission takes a reference of para 22 of the judgment in Sundarjas Kanyalal Bhatija v. Collector, Thane, (1989) 3 SCC 396, as under;

“22 […] In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate courts would find themselves in an embarrassing position to choose between the conflicting opinion. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.”

ON THE ISSUE OF INTRA COURT APPEAL:-

Ojha pointed out that it is  fundamental right to one appeal against the order of conviction in contempt cases by this Supreme  Court in its original jurisdiction. Non providing appeal is violation of Article 14 (5) of International Covenant on Civil & Political Rights (ICCPR) Article 14, 19 & 21 of the Constitution of India.

 Article 14 (5) of ICCPR reads thus;

“5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.”

Nine Judges Bench of this Hon’ble Court in the case of K. Putaswamy vs. UOI (2017) 10 SCC 1, had specifically ruled that the provisions of ICCPR and other international Covenants are constitutionally protected under our constitution and its violation can be challenged in the same manner as a violation of fundamental rights guaranteed under constitution of India.

That, the ratio laid down in a  recent judgment of Five – Judge Bench of UK Supreme Court in the case of Her Majesty’s Attorney General Vs. Crossland [2021] USKC 58, support the prayers of the petitioners. It is held by the UK Supreme Court that the person convicted by the Supreme Court under contempt in its original jurisdiction had a right of one appeal before larger benches.

Sanyal Committee report while enacting Contempt of Courts Act,1971 had taken a reference of  the observations of  Shawcross Committee  which are as under ;

 “…….. in every system of law of any civilized State, there is always a right of appeal against any sentence of imprisonment”. There is no justification whatsoever for making any exception to this universally recognised principle in the case of sentences for contempt. ”

Similar is the ratio laid down in the case of Madav Haskot Vs. State (1978) 3 SCC 544 & Dilip S. Dahanukar Vs. Kotal Mahindra Co. Ltd. (2007) 6 SCC 528.

A 17-Judge Bench of United Nations Human Rights Committee comprising Justice P.N. Bhagwati  in the case of Anthony Michael Emmanuel Fernando v. Sri Lanka, 2005 SCC OnLine HRC 22 had strongly condemned the conviction of imprisonment in contempt by the Chief justice of the Supreme Court of Srilanka and declared it to be arbitrary, draconian and inappropriate and violative of Art. 9 of ICCPR. The committee in many such cases had directed the State authority to pay compensation to the citizen and  provide them an appellate jurisdiction against the conviction by the Supreme Court in its original jurisdiction.

 

The other landmark judgments are;

(i) Luis Hens Serena v. Spain, 2008 SCC OnLine HRC 20

(ii) Chota Ratiani Vs. Georgia 2005 SCC OnLine HRC 25 (Para 11.3 & 12).

(iii) Luis Olivero Capellades Vs. Spain 2006 SCC OnLine HRC 42 (Para 7 & 8).

(iv) Terron v. Spain, Comm. 1073/2002, U.N. Doc. A/60/40, Vol. II, at 111 (HRC 2004)

You can download a copy of the written submission here.