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What was at
issue?
A campaign had been started by the Commission for Judicial
Accountability (CJA) by the Bhushan and Bhushan team et al asking
for an explanation as to why a business was shifted to Justice
Sabharwal’s residence (however temporarily) at a time when the
Supreme Court was considering a large-scale demolition ordered by
the Justice Sabharwal bench for land use violations in Delhi. A
further speculation was raised that the ultimate beneficiaries of
the demolition would be Sabharwal’s sons whose investments in malls
would be enhanced. There were also allegations of the UP government
selling land to the Sabharwal family at reduced prices. Justice
Sabharwal answered this by stating his lack of knowledge about the
business being run from his house and denying the speculation. True
or false, this information was in the public domain.
In Justice Sodhi’s convicting order, the underlying logic is that
singling out a former chief justice of India and attributing
possible bias to him and the other judges who passed the order is
contempt which undermines public confidence and suggests that the
other judges were “dummies... to fulfil the ulterior design”.
Justice Sodhi's verdict says: “There is sufficient case law on the
subject and we need hardly add any further material to it. Suffice
it to say, the Supreme Court in Haridas Das vs. Smt. Usha Rani Banik
and ors.; Civil Appeal No.7948 of 2004, has clearly laid down the
‘Laxman rekha’ which we feel the publications have crossed. The
publications in the garb of scandalising a retired chief justice of
India have, in fact, attacked the very institution which, according
to us, is nothing short of contempt”.
Legal Luminaries Speak
Harish Salve
Calling it "Test of wisdom, not legality", India's leading luminary
Harish Salve, a senior lawyer and former solicitor general of India,
said the decision of the Delhi High Court holding four journalists
guilty of criminal contempt "whether or not correct in law, appears
to be unwise."
"I have read the allegations and Justice Sabharwal’s detailed and
precise reply and the published rejoinders, and it is my view that
these allegations, at the least, are not worthy of the attention
that the press continues to bestow upon them... I am also clearly of
the view that Mid Day jumped the gun in carrying these allegations,"
Salve wrote in an article published by the Indian Express.
Incidentally, among the controversial cases with which Justice
Sabharwal dealt with cases relating to the expulsion of members of
Parliament, the office of profit controversy, Bihar Assembly
dismissal, the forest matter, and the Ninth Schedule matter.
"In a perfect world the intrusive methods of the Indian media would
be an intolerable invasion of privacy and an unbearable encroachment
on a citizen’s reputation. In contemporary India these methods have
gone a long way in serving a larger cause of the fragile democracy
of this nascent republic," Salve said
Rajeev Dhavan,
Senior Lawyer
The order is bad in law. Earlier, the Supreme Court prevented the
Mid Day journalists from being jailed. The Supreme Court will surely
be more balanced. Until then, Justice Sodhi’s order should not serve
as a precedent to be followed. In fact, the order does a disservice
to the judiciary and its cause. There will always be speculation as
to why the contempt was brought and in whose interest. It also does
a disservice to Justice Sabharwal who will otherwise be remembered
as a good judge. To add suspicion to alleged taint is hardly a
satisfactory solution. Meanwhile, the public’s call for transparency
remains.
MN Krishnamani, former Supreme Court Bar Association president:
High courts have no jurisdiction to initiate action or punish anyone
for contempt of the Supreme Court under Article 129 of the
Constitution as this power is conferred only on the apex court. “The
high court judges should know the Supreme Court knows how to protect
its dignity and honour. It does not require any high court as its
proxy,” Krishnamani wrote to CJI K.G. Balakrishnan.
Ram Jethmalani, former law minister and veteran lawyer:
The order is “a restriction on freedom of speech and expression...an
absurd interpretation of law. I am firmly of the opinion that the
truth of the statement made and bona fide belief that the statement
was true, even if it finally did not turn out to be true, is a
defence in any contempt proceeding.”
K.T.S. Tulsi, senior Supreme Court advocate:
“If what the journalists wrote was true, then what crime have they
committed...If what has been reported is correct, then instead of
sentencing the journalists, somebody else would have to go to jail.”
M.H. Kania, former Chief Justice of India:
“I believe there should be some credible machinery for investigating
allegations of corruption and misconduct against retired judges of
the higher judiciary."
K.N. Singh, another former CJI:
“Judges need some defence as everyday in courts, one party wins and
the other loses. The loser has a right to his/her opinion on the
outcome of the case, but who is there to speak for the judiciary
against wild and unsubstantiated allegations.”
Why these questions were not raised when Justice Sabharwal was in
office. It is the media, both print and electronic, which is
becoming a scandal monger and divorced from objectivity and fairness
in reporting.
26
September, 2007
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