OR. CR. MISC. (DB) No.4 OF 2009 THE STATE OF BIHAR------------------------------------- Petitioner. Versus In the matter of Suo motu Contempt against Dr. Suman Lal, 83, Krishna Apartment, Boring Road, P.S. S.K.Puri, District Patna ….Opposite Party --------- For the Petitioner : Mr. Prasoon Sinha, G.A.III For the Contemnor : Mr. Niraj Kumar, Advocate. --------- P R E S E N T THE HON'BLE ACTING CHIEF JUSTICE THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA ---------- Prasad, ACJ : I wish to commence this judgment reminding myself to the golden words of Lord Denning in the case of Regina v. Commissioner of Police of the Metropolis, ex parte Blackburn (1968) 2 All ER 319 (CA). He spoke thus : “Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still lest into political controversy. We must reply on our conduct itself to be its own vindication. 2 Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.” The words of wisdom of the Supreme Court in the case of Special Reference No.1 of 1964 (1965) 1 SCR 413 also flashes in my mind. The Supreme Court observed as follows : “We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct.” Memorable words of H.R. Khanna, Retired Judge of the Supreme Court, whom many scholars and jurists described to be a living legend in his life time, ones spoke as follows : “Judges should not silence criticism with threat of Contempt of Court but should remove the weakness and drawbacks that have crept into the judicial system.” The Supreme Court had the occasion to sound a note of caution in the case of M/s Chetak Construction Ltd. Vs. Om Prakash and others. JT 1998 (3) S.C. in the following 3 words: “The corner-stone of the contempt law is the accommodation of two constitutional values – the right of free speech and the right to independent justice. The ignition of contempt action should be substantial and malafide interference with fearless judicial action, not fair comment or trivial reflections on the judicial personnel,” (See 1974 (1) SCC 374). Long long ago in Queen Vs. Grey (1900 (2) Q.B. 36 at 40) it was said that „judges and courts are alike open to criticism and if reasonable argument is offered against any judicial act as contrary to law or to the public good, no court could or would treat it as contempt of court.‟ Therefore, contempt jurisdiction has to be exercised with scrupulous care and caution, restraint and circumspection. Recourse to this jurisdiction must be had whenever it is found that something has been done which tends to affect the administration of justice or which tends to impede its course or tends to shake public confidence in the majesty of law and to preserve and maintain the dignity of the court and the like situations. „The respect for judiciary must rest on a more surer foundation than recourse to contempt jurisdiction.‟ The following words of wisdom of Prof. Harold Laski also deserves to be noted : “Every time an intellectual has the chance to speak out against injustices, and Yet remains silent, he contributes to the moral paralysis and intellectual barrenness that grips the affluent world”. Dr. Suman Lal, contemnor herein, is a member of a body called Jan Chowkidar (People‟s Watch). Jan Chowkidar through the contemnor and two other petitioners presented C.W.J.C.No. 702 of 2009 (Jan Chowkidar & others vs. The 4 State of Bihar & others) as a Public Interest Litigation for a direction to the Government of India and Government of Bihar not to allow strikes for matters relating to service conditions like pay, enhancement of pay etc. and declare strike by government servant illegal. This was prompted on account of ongoing strike by certain section of the employees of the State Government. The writ application came up for consideration before the Division Bench on 15.1.2009. The Division Bench, of which one of us (Prasad, ACJ) was a member, was of the opinion that no effective order on the issue of strike could be passed without hearing the Unions and the Associations, on whose call the employees have gone on strike. The Bench also thought that prayer to declare the strike illegal without hearing the Unions and the Associations would be inexpedient and hit at the root of audi alteram partem. Accordingly, we orally observed for impleading the Unions and the Associations, whose members have gone on strike as respondents. Counsel representing the petitioners readily agreed to that and prayed for two weeks time to implead the Unions and the Associations. Nothing prevented the Counsel for the petitioners to implead the Unions and the Associations on the very day the order was passed, but he did not do so. As is the practice, on the day the order is passed, the record of the case remains with the Court Master and thereafter goes to the Office and any correction in the record of the case is done when on filing of the inspection slip, the record is made 5 available. These narrations of fact may look unnecessary but the contemnor has made grievance about that, I deem it expedient to record that the Court Master did not err in not permitting addition of parties on the following day and the Counsel was rightly asked to do by filing inspection slip. After the Counsel for the petitioners added the party as directed by order dated 15.1.2009, the writ petition was listed before us on 30th of January, 2009. The defect pointed out by the Stamp Reporter as to whether writ petition is fit to be treated as Public Interest Litigation was ignored. On that day, we decided to issue show cause notice to the newly added Associations and the Unions and in order to expedite the matter observed that notices on the Unions and the Associations be served Dasti which the petitioners‟ counsel undertook without any murmur. Thereafter the matter came up before us on 4th of February, 2009 and on that day Senior Counsels representing the Associaions and the Unions disclosed to the Court that they are watching the development and considering the desirability to continue with the strike and accordingly at their prayer, the case was adjourned. Counsel, who represented the petitioners on that day, was very vehement and contended that the strike itself is illegal in view of various judgments of the Supreme Court to which one of us (Prasad, ACJ) observed that for the moment the court is not inclined to go into the larger question as to whether the Unions and the Associations have any such 6 right or not and taking into account the sufferings of the people in general on account of strike “the court for the present would not like to go into this legal gymnastic”. Contemnor believes that Government servants had no right to strike and this issue involved in the writ application ought to have been decided on the very first day of its filing. The issue is not as simple as projected. It requires serious deliberation which was not possible without the assistance of the Unions and the Associations. Being “a renowned social activist” she expected the court to throw out all its procedure to wind and to wait at the gate of the court to entertain the petition and pass order. The special issue of the Journal of the Indian Law Institute (Volume 50, number 4 page 678), the Chairman, Editorial committee whereof is Hon‟ble the Chief Justice of India carries an article “Right to Civil Disobedience: Is it justification for strike by Government servants”. The author, a Professor of Law K.C. Sunny in this connection has observed as follows : “It is submitted that the reasoning of the court is not correct. It is true that in All India Bank Employee the Supreme Court had categorically stated that right to strike is not a fundamental right. That does not mean that right to strike is neither legal nor justifiable. Speaking for a three member bench Krishna Iyer J had opined in Gujrath Stell Tubes that “a strike could be legal or illegal and even an illegal strike could be a justified one” In Syndicate Bank speaking for a five member bench Sawant J took the view that “whether there has been a breach of the relevant provisions” is the only question to be considered for determining the legality of a strike. In such a situation 7 how can a two member bench declare that there is not even an equitable right to strike. One can argue that the observation of Krishna Iyer and Sawant JJ is confined to the employees coming under Industrial Disputes Act and the decision in T.K. Rangrajan is related to government servants who do not come with in the purview of Industrial Disputes Act. But such an argument is untenable considering the fact no specific reason had been stated in the judgment for adopting different standards for the strike of government employees. It is relevant to note that in T.K. Rangrajan the question whether right to strike is a right was not raised as an issue and arguments of both sides were nor heard. Inspite of this the court held that government servants had no right to strike. So it is difficult to treat this principle as a binding precedent.” On the following day i.e. 5.2.2009 a fax message addressed to one of us (Prasad, ACJ) was received. As this letter is the subject matter of contempt, I deem it expedient to reproduce the same : “To, Mr. Chandramauli Kumar Prasad Honourable Acting Chief Justice Patna High Court Patna Subject : Request to you to recluse yourself from hearing in C.W.J.C.No. 702/2009 Sir, I am Petitioner no.1 in the above case. I gather from the events specially since the filing of the case that you and your office is biased against our case and us. I cite a few examples : 1.The case was being objected by the Stamp reporter on frivolous grounds of the prayer not matching with the prayer in the first paragraph which was ridiculous as the prayer at the last of the writ only asked for granting 8 of reliefs sought under paragraph 1. 2.When complained in writing to the Registrar (Computer and List) and orally by our lawyer to the Registrar General, no action was taken against the employee. 3.Rather, the case was sought to be delayed which cannot but be deliberate by you for 15 days under the ruse of adding the strikers. 4.No mandamus lies against a private person, Venkatgiri case [2002(4) SCC 660 and (2002)4 SCC 638] by three judge bench relying on AIR SC 1183 who has no public duty to perform which was pointed out vehemently by our lawyer but you threatened to dismiss the case. 5.Even while directing you have written in the order sheet that the lawyer has sought to implead the parties which is untrue. You had forced the lawyer to agree to it in the open court. This has been reported in all major newspapers. Even assuming that it should have been done, it should not have taken 15 days. 6.During the hearing on 4/2/09 you did not even allow my lawyer to speak stating that do not do legal gymnastic while you allowed the strikers lawyers to speak at length. This has been reported in Hindi Hindustan on the front page. 7.We first hearing was on 15/1/09. We went to add the parties on the following day but was refused by your court officer who again asked us to do it after filing inspection. 8.We filed inspection, but the records remained in your office for several days. Ultimately we did it and the case came up on 30th January when again our lawyers pleaded that there is no requirement under the law for any notice to illegal strikers. Rather our grouse is against the government which is hell bent on illegally helping the strikers which is creating great misery to the people of Bihar, stalling development including non- functioning of hospitals which is jeopardizing liver. Needless to state, Medicine is fundamental right under the constitution. 9.We filed the requisites for the notice on 30th January itself. Though the bench posted the matter for 4th February, we got the notices for serving it on the parties on 2nd February at 4.30 p.m. We had kept on inquiring and 9 urging it to given to us soon but to no avail. 10.That, we were asked to give dasti notice on the striking unions which was very dangerous. Our lawyer had pleaded for the notices to be sent through the police but it was refused by you. 11.That, all along your court officer Raman has been berating and demoralizing our lawyers and court clerk all long stating that we have been acting against his and employees interest. This also is illegal and unethical and cannot be allowed. It he is not acting on your behest then we urge you to take action against him. 12.That, the government employees are a pampered lot in compared to common people in Bihar and are holding the people to ransom against government rules and illegally. We have therefore lost all confidence in you about us and people of Bihar getting justice. Your attitude demonstrates partisan approach towards the strikers. We therefore request you to transfer this case to any other bench. Thanking you, Yours truly, Sd/ 5.02.09 Dr. Suman Lal 83 Krishna Apartments Boring Road P.S. S.K.Puri Patna-1. COPY TO – THE CHIEF JUSTICE OF INDIA SUPREME COURT, NEW DELHI-1.” I directed the letter to be placed on record of the case. Thereafter the writ petition was taken up on 6.2.2009 and the court enquired from the contemnor, who was present in court, as to whether she is the author of the letter. She admitted that the letter has been written by her. In our opinion, the contents of the letter, prima facie, showed commission of 10 criminal contempt and accordingly we drew a proceeding for contempt against her and notice as provided under Rules was served. In response thereto, the contemnor has filed his show cause. I deem it expedient to reproduce her entire show cause : “The humble show cause on behalf of the opposite party namely Dr. Suman Lal Most Respectfully Shweth, I. This contempt proceeding has been initiated suo motto by the Patna High Court against the Opposite Party (OP) on the basis of letter written by the opposite party to the Honourable Acting Chief Justice Chandramauli Kumar Prasad for transferring CWJC no.702/2009 challenging the strike of Government employee in Bihar along other things to another bench. II. The intention of the O.P only was to uphold the majesty of justice and to keep the stream of justice pure in public interest. III. Writing a letter to the Honourable Acting Chief Justice for transfer of the case C.W.J.C. No. 702/09 fromone bench to another which is no contempt. It just happened that the judge in question was also Mr. Chandramauli Kumar Prasad, the acting chief justice Had there been regular chief justice, the letter for transfer from his bench would have been addressed to him/her for transfer from the bench presided by Justice Chandramauli Kumar Prasad. IV. The show cause issued to the petitioner has not laid out how, by what and under which provision of law criminal contempt has been committed for which show cause has been asked to be submitted and she is being hauled. No charge has been framed. In the one page notice asking to file show cause, there was no document, and specification as directed by the apex court in Pradeep Kumar Biswas Case {2004 (4) SCC 573} V. In the notice, there is reference to a petition dated 5.2.2009 of the notice Dr.Suman Lal while she has not filed any 11 petition. Rather it was just a letter to the head of judiciary to uphold the majesty of law in public interest. VI. The petitioner is a renowned social activist working for the poor and the marginalized women and has been moved by the plight of the sufferings of the people which has made her file this PIL so that resources of the state is better utilized and those denied their basic human rights like medicare etc gets access to them. It is totally unfair that the state spends 16000 crore on payment of salaries and pension for less than 1% of the populace who are government servants whilst spends only 13000 crore on development, law the rest 99%. VII. When Justice Krishna Iyer was issued a notice of contempt for writing a letter in contempt proceeding to the judges trying a contempt case and criticizing them, a division bench of the Kerala High Court consisting of Justice Cyriac Joseph (now judge of the Supreme Court and Justice AK Basheer of the Kerala High Court held that writing letter to judge in public interest is no contempt and dropped the proceeding. VIII. The petitioner did not publish it or made it public so the question of scandalizing does not arise. She wrote in public interest to the head of judiciary in the state. Newspaper report, the utterances of the union leaders, the conduct of the court officer mentioned and not allowing her lawyers to speak, together, were creating this apprehension of bias in the mind of the petitioner and unfortunately more in the mind of the public whose interest she was espousing. IX. It was very important that the general public should not have such an impression as it was the rule of law at stake in a volatile and poor state where the average income of the person is around Rs. 10 per day (Rs. 3600 per annum) and all public servant including the judge is paid several times more from the public purse and all of them are/or have befitted more the question which is under challenge before the court. X. It was the Acting Chief Justice who made the document public and thus can be said to 12 have published in according to Aiyer Law Lexicon as well as Black. XI. If anyone has brought the judiciary to disrepute it is the acting Chief Justice himself vide Section 16 of the Contempt of Court Act 1971 as he made the complaint letter public. XII. All law dictionaries are agreed on the definition of publication and publish-it means “ to make known to the people in general” XIII. That she has not committed any contempt in the face of the court. XIV. She has not interfered with any administration of justice, neither has she scandalized, nor obstructed it. XV. The Acting Chief Justice may or may not have taken action to transfer the case and as such there was no obstruction/interference with the administration of justice. XVI. Asking a judge to rescues himself in case is normal affair worldwide. Had the petitioner made it public then it could be said that the petitioner had tried to influence the course of justice/force him or malign him. XVII. Asking for change of bias in court is a very normal affair. A copy of the judgment passed by US Supreme Court in L W Holt V Commonwealth of Virginia in Case no. 464 decided on May 17, 1965 {381 U.S. 131} and delivered by the renowned judge Justice Black who shaped the American judiciary in the 50s and 60s clearly demonstrates this which ruled against Virginia Supreme Court of Appeals, which had held that the motion for change of venue was „a vehicle to heap insult upon the court, a studied attempt to smear the judge.” The Supreme Court held that if the charges were “insulting” it was inherent in the issue of bias raised. In the judgement it is observed that the right to be heard necessarily embody a right to file motions and pleadings IT also so observes that a fair trial in a fair tribunal is basic requirement of due process. It adds that it was vital to escape the possibility of a constitutionally unfair trial. A copy of the above judgment is attached as 13 Annexure-1 XVIII. Professor Garry Slapper writing in the The Times Online has quoted a judgement of the court of appeals of UK in Locobail(UK) Ltd v Bayfield Properties Ltd (2000) set out guidelines about when a judge should recuse himself for reasons of apparent bias. A copy of the article is attached herewith as Annexure2 XIX. Honourable Justice David of Australia speaking at a seminar organized by the National Judicial College, Bejing on Judicial Bias states that when “Public confidence in the administration of justice requires that where there is the possibility of an appearance of bias, the judge must withdraw from the case. It is a duty of the judges to be impartial. He states that judicial impartiality and neutrality is embodied by the Goddess Themis with sword, scales and blindfold. Justice means each person must receive, in the scale, that which is due to him no more and no less. The blindfold goddess illustrates that notion that judges must decide cases solely by reference to the evidence that is led before him. He goes on to add that the system depends upon judges being independent and impartial. A full copy of the above article is annexed herewith as Annexure 3 XX. Despite the Acting Chief Justice threatening all wraths repeatedly in the open court in full view, the petitioner remained cool and humble in the court. XXI. If at all the petitioner is still charged with contempt, in all fairness, this may be heard by another bench, specially as the letter stated the Acting Chief Justice and his court officer of bias and as such she fears she cannot get any justice from this bench and it is settled that nobody can be a judge in his own cause. XXII. A member of Jan Chowkidar has also complained to the Chief Justice of India, the President and the Prime Minister about Justice Chandramauli Kumar Prasad, the details of which we do not elaborate to save the judiciary from embarrassment. 14 XXIII.