When Gandhi said no
IN RE: Mohandas Karamchand Gandhi and Others, decided by a three-judge bench of the Bombay high court on March 12, 1920 (Coram: Amberson Barrington Marten, M.H.W. Hayward and A.M. Kajiji) has a lot of significance for contempt of court proceedings. In this case, Gandhi and Mahadev Haribhai Desai, editor and publisher of Young India, were arraigned as contemnors for publishing on August 6, 1919, a letter dated April 22, 1919 written by the District Judge of Ahmedabad (B.C. Kennedy) to the Registrar of Bombay High Court, with their comments. The gist of the charge was that the letter in question was a private official letter forming part of a pending case.
In his letter, Judge Kennedy submitted for the determination of the High Court the question of the lawyers of the Ahmedabad court who had signed the “Satyagraha Pledge” authored by Gandhi. The pledge, among other things, required the pleaders to refuse civilly to obey the Rowlatt Act, which was passed by the Imperial Legislative Council in Delhi on March 18, 1919, indefinitely extending the emergency measures of preventive indefinite detention, incarceration without trial and judicial review enacted in the Defence of India Act, 1915, during the First World War. It was the Rowlatt Act that brought Gandhi to the mainstream of Indian struggle for independence, and marked the beginning of the Gandhi era in Indian politics.
Kennedy’s letter prompted the High Court to issue notice to the Ahmedabad lawyers. In his comments on Kennedy’s letter, Gandhi wrote that Kennedy prejudged the issue, and made an impudent suggestion that the lawyers who took the pledge had committed a criminal breach of the law of the land. Gandhi concluded his article saying that “these traducers of civil resin order to legally determine the status of comments being made in respect of sub judice matters, and also answer Bhushan’s plea for recusal of Justice Arun Mishra. The court, however, could not take this case further after hearing it last on March 7 last year.
What surprised observers was that the bench, after issuing notice to Bhushan for his two tweets on July 22, also decided to hear a 11-year-old contempt of court case against him, which had not been listed after 2012. In this case, Bhushan had given an interview to Shoma Chaudhury of Tehelka magazine, alleging corruption in the higher judiciary. Bhushan had claimed that half of the previous 16 chief justices of India in 2009 were corrupt. As his list also included the then Chief Justice of istance and civil resistors are becoming the instruments for propagating Bolshevism, that is, the spirit of lawlessness accompanied with violence, and that the Government of Burma, the Government of Punjab and the District Judge of Ahmedabad are all in their own way endeavouring forcibly to impose their will upon civil resisters, but that those who are trying to crush the spirit of civil resistance are but fanning the fire of Bolshevism”.
In his letter of October 22, 1919, to the High Court, Gandhi wrote: “In my humble opinion, I was within the rights of a journalist in publishing the letter in question and making comments thereon. I believed the letter to be of great public importance and one that called for public criticism.”
When the High Court Chief Justice asked Gandhi to publish an apology in the prescribed form, Gandhi refused to do so and stated that in publishing and commenting on the latter, he had performed a useful public duty at a time when there was great tension and when even the judiciary was being affected by the popular prejudice: but that he had no desire whatsoever to prejudge the issues which their Lordships had had to decide. Then, after referring to the honour of journalism and to his membership of the Bombay Bar and its traditions, Gandhi stated that in similar circumstances he would not act differently, and that he could not conscientiously offer any apology, and that, if that explanation was not considered sufficient, he would respectfully suffer the penalty.
Gandhi further stated: “I regret that I have not found it possible to accept the advice given by His Lordship the Chief Justice. Moreover, I have been unable to accept the advice because I do not consider that I have committed either a legal or a moral breach by publishing Mr. Kennedy’s letter or by commenting on the contents thereof. I am sure that this Honourable Court would not want me to tender an apology unless it be sincere
India, the late S.H. Kapadia, contempt proceedings were initiated against Bhushan, on the request of the Amicus Curiae in another case, Harish Salve.
In this case, Bhushan had alleged that Chief Justice Kapadia heard a case concerning Sterlite Industries in which he had certain shares that made him vulnerable to the allegation of conflict of interest. Chief Justice Kapadia claimed that he had disclosed the fact of his shareholding during the hearing of the case, and counsel, in response, had no objection whatsoever to the matter being heard by him. But then the people who were aggrieved by Sterlite’s project were not before the court, and in Bhushan’s view, their view would have mattered whether Chief Justice Kapadia could hear the matter,
and express regret for an action which I have held to be the privilege and duty of a journalist. I shall therefore cheerfully and respectfully accept the punishment that this Honourable Court may be pleased to impose upon me for the vindication of the majesty of law.” The publisher, Mahadeo Desai, the second contemnor, also offered to cheerfully and respectfully abide by any penalty that the court might be pleased to inflict on him.
After surveying the case law on the subject, the bench concluded that the publication of the letter by Gandhi was contempt of court, and that his comments on it were of intemperate and reprehensible character. “They prejudge the case and tend to undermine any decision which the High Court may come to at the trial”, the bench said, adding it amounted to “scurrilous abuse of the Judge as such”.
The bench reasoned that if tension and popular prejudice existed, as claimed by Gandhi, they would be increased rather than diminished by the abuse of the local judge, and that could not be the public duty of any good citizen.
In Paragraph 31, Judge Marten observed: “We have large powers and in appropriate cases can commit offenders to prison for such period as we think fit and can impose fines of such amount as we may judge right. But just as our powers are large, so ought to, I think, to use them with discretion and with moderation, remembering that the only object we have in view is to enforce the due administration of justice for the public benefit.”
Judge Hayward held that commenting on the letter amounted to “scandalising” Judge Kennedy. He also suggested that the respondents posed not as law-breakers but rather as passive resistors of the law. Therefore, he felt it would be sufficient to enunciate unmistakably the law in these matters, to severely reprimand them for their proceedings, and to warn them of the penalties imposable by the High Court.
V. Venkatesan despite the obvious conflict of interest. Subsequently, however, Bhushan told the court that he had the highest regard for Chief Justice Kapadia, and no disrespect was meant to him in the interview.
On July 14, 2010, the bench comprising Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu had referred to Salve’s allegation that Bhushan’s interview deliberately aimed at tarnishing the image of the judiciary as a whole, particularly a sitting judge of the Supreme Court, in the eyes of the general public without any foundation. The bench had also held the then editor of Tehelka magazine, Tarun Tejpal, allegedly responsible for lowering the dignity of the court in the eyes of all stake holders in the justice delivery system.
With Bhushan refusing to apologise in this case, the proceedings in this case remained inconclusive. In 2011, Bhushan sought a reference to the Constitution bench on whether expressions of bona fide opinion on the extent of corruption in judiciary would constitute contempt. Information about the names of eight Chief Justices of India who, according to Bhushan, were corrupt, was submitted to the bench in a sealed cover, which continues to be under wraps.
Interestingly, when the Justice Arun Mishra bench wanted to revive this case, it was confronted with the same issues raised by Bhushan in 2012. In addition, the bench framed the following issues:
i) In case a public statement as to corruption by a particular judge(s) is permissible, under what circumstances and on what basis it can be made, and safeguards, if any, to be observed in that regard?
ii) What procedure is to be adopted to make complaint in such cases when the allegation is about the conduct of a sitting judge?
iii) Whether against retired judge(s), any allegation as to corruption can be made publicly, thereby shaking the confidence of general public in the judiciary; and whether the same would be punishable under the Contempt of Courts Act?
Bhushan submitted that corruption is not restricted to pecuniary gratification alone, but has to be understood in a wide sense to include any act of impropriety. He has also argued that allegations of corruption cannot per se be considered as contemptuous, because truth is a defence in contempt proceedings.
On August 25, the bench observed: “There is paucity of time; otherwise, we would have heard the learned senior counsel with respect to the questions which have been proposed. However, since the matter is pending for the last 10 years, as prayed for, we fix the date for hearing in the month of September, 2020. Let the matter be listed on 10.09.2020 before an appropriate Bench as may deem fit by Hon’ble the Chief Justice of India.”
As Justice Arun Mishra retires on September 2, all pending matters before his bench have to be necessarily listed before other benches for further hearing. When counsel for Bhushan had questioned the bench’s decision to prioritise this case in the absence of physical functioning of the court due to the lockdown, Justice Arun Mishra’s move to fix an early date for the next hearing by an appropriate bench even after his retirement, is sure to raise eyebrows. As the master of the roster, the Chief Justice alone has the power to prioritise pending cases for hearing by appropriate benches. Justice Arun Mishra’s move to fix the next date of hearing of a case after his retirement—especially when counsel for Bhushan wanted it heard after the resumption of normal hearing of the court—is likely to be viewed as impropriety.
FLAWS IN SENTENCE HEARING
In his written submissions before the Supreme Court, Bhushan’s counsel, Rajeev Dhavan, has underlined his