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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2642

Petition to Indian Parliament and to Tamil Nadu Assembly by Dravida Peravai

Chennai, 05 October, ( The book published by Lok Sabha Secretariat with G.C.Malhotra as Editor and titled Practice and Procedure of Parliament in page 957 Chapter XXXIII on Petitions and Representations says" It is an inherent right of the people in a democracy to present petitions to the Legislature of the land with a view to ventilating grievances and offering constructive suggestions on matters of public importance. This right has been well recognized in India and has been in vogue since time immemorial.

The concept of petitioning for redress of grievances now finds an indirect recognition in the Constitution also. [ Art.350]. Dravida Peravai exercises its right to petition the Parliament on the question of judiciary over stepping its limits to usurp the powers under Article 356 empowered with the Parliament and the Contempt threats posed against duly elected State Government of Tamilnadu.

It also says people can petition to a Legislative assembly. In view of this we have sent the following memorandum to both the Speaker of Loksabha and Rajyasabha. We would urge you to convene a special sitting of the Tamilnadu Assembly to move a resolution upholding the right of Tamilnadu people to elect their government and to urge Indian Parliament bring impeachment motion against the two judges who had overstepped their domain and had acted in partisan manner in order to defeat people's mandate by back door.

The issue of Contempt of Court that has become a subject matter of debate once again could have been resolved if only The Indian government decision to amend the Contempt of Courts Act which has resulted in several contrary decisions in the past had been effected in time. Since issue is pending before Parliament we are here presenting this petition to urge the Parliament to take note of many controversies arisen in this country and evolve and enact a fool proof Contempt of Courts Act in the winter session of Parliament

It has taken a long time for the Union government to brave the resistance of the judiciary against amending the Contempt of Courts Act, 1971. In fact there had been growing demand for doing away with the COCA so that it is not unusually and excessively used by the judiciary against the persons and institutions including media, who dare to expose those adorning the high constitutional positions of judges of the Supreme Court and high courts. Dravida Peravai urges the doing away of the Contempt of Courts Act 1971 or amending it to safeguard free democracy and free media. The Supreme Court could summon an editor of daily newspaper which carried a news item, though not defamatory or contemptuous but allegedly based on false information, to pull him up in an open hearing. When the editor's counsel asserted that the information published was not factually incorrect and he would argue on that, the court promptly told him that ``truth is not a defense'' in a contempt of court case.

The lawyer would withdraw and leave it to the court to decide the matter, without taking note of the editor's plea that the news item was not untrue.

But the court had taken a contrary view while dealing with Shiv Sena chief Bal Thackeray against whom it had initiated (suo-motu) contempt of court proceedings . In the Sena's mouth piece `Samna'. Thackeray had questioned the locus (right) of judges who were hearing petitions alleging electoral corrupt practice by him.

Thackeray had called Muslims names and also said that it was beyond the jurisdiction of the country's highest court to look into what he had to say, and what he always believed in. The court had asked Thackeray's lawyer Ram Jethmalani to counsel his client to apologize. Otherwise, the judges had warned, they would send him to jail. The counsel, instead, counseled the court not to resort to the extreme step as ordering Thackeray's arrest would lead to mass unrest in the country. Later, the contempt proceedings were dropped.

Again, the court absolved former Union law minister P Shiv Shankar of the committing gross contempt by publicly declaring that the Supreme Court was meant for the ``bride burners, diamond smugglers, corrupt and mafia.'' The court did not find Shankar's utterances serious enough to have him hauled up under the COCA. His sweeping allegations against the Supreme Court were considered to be his personal feelings and also something, which the Congress leader had said in public interest

Former bureaucrat and the then Trade Fair Authority of India's chairman Mohammad Yunus got away with his statement about the judges who passed a judgment that the members of Jehovah's Witnesses could not be compelled to sing the national anthem or asked to stand in respect of the national flag. Yunus had said these judges deserved deportation, as they were anti-national. The court surely passed a detailed judgment, but did not order any action against Yunus.

In another case, however, a poor Muslim litigant who had lost everything in coming up to the apex court and lost his case, was sent to the jail for committing its contempt. He pleaded before a judge, who also happened to be a Muslim, to have pity on him and on his children who would be rendered homeless. He invoked the name of religion to secure the court's indulgence. The judicial discretion however found him guilty of contempt and sent him to jail. These and many more instances of COCA would surely demonstrate that absolute judicial discretion plays a vital role in dispensation. The same is true with judicial pronouncements .The core question, however, is whether the proposed amendment in the COCA by injecting the element of ``truth'' in it as a defense would be sufficient to empower a contemnor to defend his actions or words, which may have been construed as gross contempt by the judges. The government had been opposed to any amendment in the COCA. But the spate of allegations against several judges and exposes of their dealings with vulnerable categories of people, perhaps worked as a pressure on the law ministry to review its decision.

In the Karnataka judge's sex scandal case, a number of journalists, editors and publishers have been facing prosecution by the high court for indulging in character assassination of judges. The media had written about the conduct of judges when they were not performing any official duty as prescribed in the Constitution or any law. The reports were based on the police information and other material. What is the truth is not the issue. The issue is whether media crossed its limits.

The proposed amendment in section 13 of COCA says: ``Provided that the court may permit the defense of justification by truth on satisfaction as to the bonafides of the plea and it being in public interest''. The Law ministry's explanation is that the amendment is based on the recommendation of the Constitution Review

We in verbatim quote extensively an article by leading Supreme Court Advocate Prasant Bhusan son of the legendary lawyer Shanthi Bhusan of Indira Gandhi case fame.

The report of the Parliamentary Standing Committee on the proposed amendment to the Contempt of Courts Act has again focused attention on the issue of judicial impunity and the lack of accountability of the judiciary as an institution. The Courts in a manner that has had the effect of intimidating the media from exposing corruption and misbehavior by the courts and judges have interpreted the wide and unregulated power of contempt given to the courts .

Thus Arundhati Roy was jailed for commenting in her affidavit that the court's contempt notice to her on an untenable petition indicated a disquieting inclination on the part of the Court to "muzzle dissent and stifle criticism."And the very judge against whom this comment was directed made the order.

Although this was clearly a legitimate comment on the court, and an exercise of a citizen's fundamental right to free speech guaranteed by the Constitution of a democratic republic, the Supreme Court declared it to amount to contempt of court.

This sent a clear signal to the media in particular that the court would not hesitate to use this power to "muzzle dissent and stifle criticism." The question is: does the judiciary stand above our democratic republic? The draconian power of contempt is not the only reason for the lack of accountability of the judiciary.

The primary reason is the lack of any practical mechanism for holding judges of the High Courts and Supreme Court responsible for any misconduct. In order to keep the judiciary independent of the executive, the Constitution provided impeachment as the only method for disciplining errant judges .

That remedy was shown to be completely impractical in the Ramaswami case, where the judge escaped removal because the then ruling party, the Congress, abstained from voting in Parliament. This was after a committee of three judges found the judge guilty of many charges of misconduct appointed under the Judges Inquiry Act. In that case, evidence of misconduct surfaced in a report by the Accountant General on the purchases made by him from government funds. Normally, it will not be possible for a citizen to get evidence of a judge's misconduct even for the purpose of drafting an impeachment motion, without an official investigation.

By a judge-made law (in Veeraswami's case), the judiciary has ruled that no official investigation can be conducted against a judge without the written permission of the Chief Justice of India. Nobody, of course, dares apply for such permission unless they already have evidence against the judge.This is why there has not been a single official investigation against a judge in the 15 years since the Veeraswami judgment, despite the fact the former Chief Justice Bharucha publicly lamented that at least 20 per cent judges of the higher judiciary were corrupt.

This triple shield — no practical remedy for the removal of corrupt judges, no investigation of charges against judges, and the power of contempt — has served to provide complete immunity to judges and has institutionalized judicial impunity.

It is against this background that the proposed amendment to the Contempt of Courts Act must be viewed. The amendment provides that truth may be considered a good defense in contempt proceedings provided it is in the public interest. The Parliamentary Standing Committee, in its recently tabled report on this amendment, while approving it, has suggested the removal of the additional requirement of showing that the truth is also in the public interest.

It has also asked the Government to consider Ram Jethmalani's suggestion that even an allegation made bona fide with due care and caution would not be regarded as contempt. The Parliamentary Standing Committee has noted the suggestion made by the Committee on Judicial Accountability that the words "scandalizing the court or lowering the authority of the court" should be altogether removed from the definition of contempt.

This is the part of the definition of contempt that is used to stifle speech, allegations, and comments against judges. This will still leave intact the parts dealing with disobedience of court orders (civil contempt) and interference with the administration of justice, which would include any attempt to threaten or influence a judge, lawyer, litigant, or witness. Medieval origins In fact, contempt by `scandalizing' the court owes its origin to the medieval ages in Britain, when the courts were considered representatives of the monarch and were called King's Courts or Queen's Courts. Thus, any imputation against the courts was considered an imputation against the sovereign and therefore punishable. The United States has a more liberal dispensation, where only something that presents a clear and present danger to the administration of justice is considered contempt. Although the British origin of contempt law in India has absolutely no relevance today, the judiciary has continued this jurisdiction and gone on to declare that even truth cannot be a valid defense against a charge of contempt . That is why the proposed amendment to the Contempt of Courts Act falls far short of what is required to prevent the abuse of this draconian power.

Karnataka Government disobeyed Supreme Court orders on Cauvery waters; Kerala Government disobeyed Supreme Court on Mullai Periyar Dam case orders, Uttar Pradesh Government failed in Babri Masjid issue to comply with Supreme Court orders. We can list out incidents where no one raised hue and cry over such violations, it is unfortunate and unwarranted two Supreme Court Judges are for exercising Article 356 to dethrone a duly elected Government without giving chance for a fair trial.

This situation warrants the deliberations in Parliament not only to do away with the contempt of Court Act 1971 if it cannot be replaced or amended with suitable safeguards for media and executive to play their roles in a free democracy. Also the need to subject judiciary to investigation in case of corruption and a due mechanism for that be evolved in Parliament, Dravida Peravai, the political party that keeps away from electoral politics in view of the unclean politics gaining upper hand with circulation of black money and criminalization of politics, urges Indian Parliament to debate these issues, since Parliament is Supreme, and take remedial legal steps to contain over reach of judicial intervention in people's power to have elected governments of their own.

Thanking You

Yours sincerely

General Secretary Dravida Peravai

- Asian -

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