IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION M.A. NO. OF 2018 I.A NO OF 2018 WRIT PETITION (C) NO.

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1 1 IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION M.A. NO. OF 2018 IN I.A NO OF 2018 IN WRIT PETITION (C) NO. 19 OF 2018 In the matter of: TEHSEEN POONAWALLA S/o SARFARAZ POONAWALLA R/o A-46, SOUTH EX. -II, TOP FLOOR, NEW DELHI PETITIONER VERSUS 1. UNION OF INDIA THROUGH ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, CABINET SECRETARIAT, NEW DELHI RESPONDENT NO THE STATE OF MAHARASHTRA THROUGH CHIEF SECRETARY, MANTRALAYA, MUMBAI MAHARASHTRA RESPONDENT NO. 2

2 2 AND IN THE MATTER OF: ADMIRAL MR. LAXMINARAYAN RAMDAS (RETD.) S/O LATE SHRI C.K. LAXMINARAYAN R/O "LARA RAMU FARM, VILLAGE BHAIMALA, PO KAMARLE, ALIBAG , DIST RAIGAD, MAHARASHTRA.INTERVENER AND IN THE MATTER OF: MS. INDIRA JAISING SENIOR ADVOCATE C-65, NIZAMUDDIN EAST, NEW DELHI APPLICANT APPLICATION FOR DIRECTION SEEKING EXPUNGEMENT OF CERTAIN ADVERSE OBSERVATIONS AGAINST PRESENT APPLICANT, MADE IN THE JUDGMENT AND ORDER OF THIS HON BLE COURT DELIVERED ON IN THE ABOVE CAPTIONED WRIT PETITION, BY INVOKING THE INHERENT POWER OF THIS HON BLE COURT UNDER SECTION 151 C.P.C. TO, HON BLE THE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON BLE SUPREME COURT OF INDIA THE PRESENT HUMBLE APPLICATION OF THE APPLICANT ABOVE NAMED

3 3 MOST RESPECTFULLY SHOWETH: 1. That the present application seeking expungement of remarks is being filed in the matter of a batch of petitions and intervention applications raising questions regarding the unnatural circumstances surrounding the death of CBI Judge B.H. Loya on which this Hon ble Court after hearing the counsel representing the appearing parties and after appreciation of the materials brought on record was pleased to dismiss vide judgment and order of the Court dated That the present applicant represented intervener Admiral Laxminarayan Ramdas who is a former Chief of Naval Staff of the Indian Navy and a public spirited person who has won several honours in service and among the awards he won during his time in the Indian Navy includes: Vir Chakra, Param Vishisht Seva Medal, Ati Vishisht Seva Medal and the Vishisht Seva Medal. The Applicant has been actively involved in the public sphere being outspoken on matters of public importance. 3. That the Hon ble Court was pleased to grant liberty to the present applicant representing intervener Admiral Laxminarayan Ramdas vide order dated to file intervention and documents on record which would assist the

4 4 Hon ble Court in deciding whether the Hon ble Court should set up independent investigation into the circumstances of Judge Loya s death. Copy of the order dated passed in W.P. (C) No. 19 of 2018 by this Hon ble Court is annexed herewith as Annexure A-1 Pages [ 30 to 33 ]. 4. That during the proceedings of the present matter before this Hon ble Court, the Hon ble Bench had orally observed, during the course of hearings dated , , , , , , , and , that the bona fide of the petitioner(s)/intervener(s) was not being brought into question and that in the batch of public interest litigation, the issue of locus was also not going to be looked into and that the matters at hand (i.e. Writ Petitions and Intervention Applications) would be dealt solely on merits. Proceeding on this basis, this Hon ble Court granted leave to the Petitioners and interveners to address the Court and make legal and factual submissions, followed by an opportunity to also make rejoinder submissions. After the conclusion of arguments, the Hon ble Court reserved its judgment on and finally pronounced its reasoned order and judgment on That vide its judgment and order dated , this Hon ble Court dismissed the petitions and applications holding that there is no merit in the petitions, that there is no reason to

5 5 doubt the statements made by the 4 judicial officers, that Judge Loya died due to natural causes, and that there was no reasonable suspicion about the cause or circumstances of death meriting further inquiry. Copy of the judgment and order of this Hon ble Court in W.P. (C) No. 19/2018 dated is annexed herewith as Annexure A-2 [Pages 34 to 147 ]. 6. That PART C of the aforesaid judgment SUBMISSIONS deals with the submissions made by the various counsels during the course of the hearings. Chapter B of PART C at Para 16 of the judgment records that the submissions made by the undersigned/applicant herein made on behalf of the intervener/admiral Ramdas (Retd). 7. That this Hon ble Court in its considered opinion in the aforementioned judgment and order delivered has noted and made certain observations/findings especially at Para(s) 74 to 76 and Para 78 (partly) of the said judgment regarding the conduct of the counsel appearing for the parties and the nature of submissions made by the counsel for the parties. The following observations from the judgment are in question in the in the present application 74. The present case is indeed a case in point. Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good

6 6 faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary. But as the submissions have evolved, it has become clear that the petition is a veiled attempt to launch a frontal attack on the independence of the judiciary and to dilute the credibility of judicial institutions. 75. We must in this context record what we have heard during the course of the submissions. Mr Dave has urged that (i) he wants to cross-examine the judges; and (ii) he does not believe the judicial officers. Aspersions have been cast on the Administrative Committee of the Bombay High Court. This court has been called upon to issue a notice of contempt to the judges on the Committee at the relevant time. Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court. Junior counsel appearing with Mr Giri went to the extent of urging that the judicial officers whose statements were recorded during the discreet inquiry are suspect. Even the judges of this Bench hearing the present proceedings, have not been spared from this vituperative assault on the judiciary. 76. Mr Prashant Bhushan argued that because two of the judges constituting the present Bench (Justice AM Khanwilkar and Justice DY Chandrachud) were judges of the Bombay High Court, they may have known the judicial officers who have submitted statements or Justice Bhushan Gavai and Justice SB Shukre. If this were to be the test, it is rather ironical that the petitioners had instituted proceedings before the Bombay High Court each of whose judges were expected to be faced with the same situation. We informed Mr Bhushan that a decision as to whether a judge should hear a case is a

7 7 matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the High Court hear intra court appeals against orders of their own colleagues. References are made to larger Benches when there are differences of view. Judges of the Supreme Court hear appeals arising from judgments rendered by judges of the High Courts in which they served, either as judges or on appointments as Chief Justices. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator. We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present Bench to recuse from the hearing. While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct. Though Mr Bhushan ultimately made it clear that he is not filing an application for recusal and none has been filed we have recorded what transpired to express our sense of anguish at the manner in which these proceedings have been conducted. Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law. We rest in the hope that the Bar of the nation is resilient to withstand such attempts on the judiciary. The judiciary must continue to perform its duty even if it is not to be palatable to some. The strength of the judicial process lies not in the fear of a coercive law of contempt. The credibility of the judicial process is based on its moral authority. It is with that firm belief that we have not invoked the jurisdiction in contempt.

8 8 78. The hearings commenced on 2 February 2018 and ended on 16 March The batch of cases was heard on 2 February 2018, 5 February 2018, 9 February 2018, 12 February 2018, 19 February 2018, 5 March 2018, 8 March 2018, 9 March 2018 and 16 March Having regard to the large volume of work, we had considered it appropriate to list the hearings at 2 pm on Mondays and Fridays, after the miscellaneous cases had been dealt with. The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process. [Emphasis Supplied] 8. The instant application is made praying for expunging the above excerpted remarks contained in the said judgment where this Hon ble Court has arrived at an erroneous finding that the conduct of the petitioners and the intervenors scandalises the process of the court and prima-facie constitutes contempt and The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.. This Hon ble Court has neither distinguished between the legal submissions made by the individual counsel, nor is there any indication in the judgment in what manner the conduct of the present applicant was lacking in bona fides. The present applicant is confining this application only to the submission made by her, for Intervener Admiral Ramdas (Retd.) during the course of arguments. A true copy of the intervention application dated bearing I.A. No /2018 in W.P. (C) No. 19/2018 is

9 9 annexed hereto as Annexure A 3 [Pages 148 to 153]. True copy of the written submissions dated on inconsistencies in documents tendered by the State of Maharashtra and incorrect procedure by the Police in the circumstances of the death of Justice B.H Loya s death is annexed as Annexure A 4 [Pages 154 to 164 ]. True copy of the written submissions dated on behalf of the Applicant is annexed as Annexure A 5 [Pages 165 to 174 ]. A true copy of the submission in rejoinder dated is annexed and marked Annexure A 6 [Pages 175 to 195]. 9. The main submissions of the applicant for expunging the remarks as excerpted herein above, are as follows :- 9.1 A bare perusal of the Intervention Application and the Written Submissions of the Applicant will reveal that there is not a single allegation or averment that can be considered as constituting prima facie contempt or lacking in bona fides. The present applicant would most respectfully submit that no submissions or contentions have been advanced by the applicant appearing on behalf of intervener Admiral Ramdas before this Hon ble Court which would tend to scandalise or lower the dignity of this Hon ble Court and all submissions have been confined to the merits of the case and the legal principles involved. On behalf of the intervener, the applicant made legal submissions and constantly tried to uphold the decorum of the Hon ble Court and has furthered her

10 10 submissions with a sense of responsibility and only after due diligence regarding the facts of the case. 9.2 This Hon ble Court during the course of hearing had clearly indicated that the question of the locus of the Writ Petitioners and the interveners shall not be gone into and the parties are to argue on the merits of the matter. However in the said judgment this Hon ble Court has extensively adverted to the bona fides of the Petitioners/Interveners herein, without giving an opportunity to argue on the bona fide and locus of the intervener or of counsel. 9.3 That in particular, this Hon ble Court had observed that the applicant herein (counsel for the intervener Admiral Ramdas) has prayed for issuance of contempt notice against the members of the Administrative Committee of the High Court of Bombay which had transferred Special CBI Judge J.T. Utpat vide order dated It is to be noted that Judge J.T. Utpat had been originally assigned the Sohrabuddin Sheikh trial when it came to be transferred by this Hon ble Court vide its order dated in the reported judgment of CBI v. Amitbhai Anil Chandra Shah [(2012) 10 SCC 545] (at Para 37) and this Hon ble Court had specifically directed that: The Administrative Committee would assign the case to a court where the trial may be concluded judiciously, in accordance with law, and without any delay. The

11 11 Administrative Committee would also ensure that the trial should be conducted from beginning to end by the same officer The said direction is binding on the Administrative Committee of the High Court. It is to be noted that the words used are assign the case to a court where the trial may be concluded. It is a matter of public record that the case was assigned to Judge Utpat after the above mentioned direction. It is also a matter of record that Judge Utpat was transferred from Mumbai to Pune during the hearing of the case before conclusion of trial. It is also a matter of public record that no permission was obtained from this Hon ble court prior to the said transfer. In the circumstances there is a clear prima facie case of disobedience of the order of this Hon ble Court. No explanation was forthcoming from any one on the merits of the statement of facts as mentioned herein above. The abovementioned contention though raised, has not been dealt with but instead the applicant had been stated to be prima facie guilty of contempt for raising the issue at all. The submissions made by the Applicant herein at the bar were well founded and cannot remotely constitute prima facie contempt To do so would deny to the counsel for the Intervenor, the right and duty to raise legal submission as thought fit, and to hold them prima facie guilty of criminal contempt would have, and does have, a chilling effect on the ability of counsel to present the case without fear or favour which they are professionally

12 12 bound to do. The mere raising of a contention of prima facie contempt by the Administrative Committee cannot in law be said to be on the part of the counsel, that too when no finding is rendered on the merits of the contention. 9.4 That in the aforementioned observations of the Hon ble Court, the remarks regarding conduct of all the counsels appearing for the petitioners/interveners amounting to criminal contempt, appears to give the impression that all counsel made the same submissions when in fact each submission was separate and distinct. The role attributed to the present Applicant is that she made a legal submission that contempt of court action should be taken against the Administrative Committee of the High Court and yet there is an observation that the submission are lacking in bona fides. It is submitted that there is no warrant for the observation that her actions are lacking in bona fides and the said observations ought to be expunged. This Hon ble Court has erred in making sweeping generalised observations about all the counsels rather than discussing whether the submissions of each counsel tantamount to prima facie contempt. The present application is not required to make any submission whether the conduct of counsel other than herself was contemnatious or lacking in bona fides and must not be deemed to have admitted. Being not relevant to this application, the same is not being commented upon.

13 That during the course of the proceedings, the present applicant had filed two written submissions, one based on the factual points arising from the documents submitted by the State of Maharashtra and another on the issues of law and procedural irregularities present in the investigation of the circumstances of death of Judge Loya. It is most respectfully submitted that neither the averments made by the present Applicant in the aforementioned written submissions filed in Court, nor the oral submissions made by the applicant before this Hon ble Court can amount to criminal contempt as will be noticed after going through the submissions made by the present applicant. The copy of the written submissions has been annexed as stated above. LEGAL PRINCIPLES AND PROCEDURE FOR CONTEMPT 10.1 That the law relating to criminal contempt requires the conditions under Section 2(c) of the Contempt of Courts Act 1971 to be fulfilled and the said section is reproduced hereunder: (i) (ii) (c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

14 14 (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; 10.2 That civil contempt is defined under Section 2 (b) of the Contempt of Courts Act 1971 as follows: Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court 10.3 The main differences existing between civil and criminal contempt lies firstly in the punitive nature of the proceedings, standard of proof, the applicability of criminal contempt being wider than civil contempt etc. In the decision of the Calcutta High Court reported in Tarit Kanti Biswas, In re, [1917 SCC OnLine Cal 117 : ( ) 21 CWN 1161 : AIR 1918 Cal 988] at Page , Mookerjee, J. explained the difference between civil and criminal contempt before the coming into force of the Contempt of Courts Act 1971 as follows: As regards the third question, namely, what is the true nature of the present proceedings, is it civil or criminal in character, the matter is of practical importance from the point of view of the mode of trial to be adopted. In the case of Legal Remembrancer v. Moti Lal Ghosh [I.L.R. 41 Cal. 173: s.c. 17 C.W.N (1913).], I had occasion to examine fully the distinction between a criminal and a civil contempt, which is of a fundamental character. A criminal contempt is conduct that is directed against

15 15 the dignity and authority of the Court. A civil contempt, on the other hand, is failure to do something ordered to be done by a Court in a civil action for the benefit of the opposing party therein. Consequently, in the case of a criminal contempt, the proceeding is for punishment of an act committed against the Majesty of the law, and, as the primary purpose of the punishment is the vindication of the public authority, the proceeding conforms, as nearly as possible, to proceedings in criminal cases. In the case of a civil contempt, on the other hand, the proceeding in its initial stages at least, when the purpose is merely to secure compliance with a judicial order made for the benefit of a litigant, may be deemed instituted at the instance of the party interested and thus to possess a civil character. But, here also, refusal to obey the order of the Court may render it necessary for the Court to adopt punitive measures against the person who had defied its authority; at that stage, at least, the proceedings may assume a criminal character. In this manner, the dividing line between acts which constitute criminal and others which constitute civil contempts may become indistinct in those cases, where the two gradually merge into each other. [See Re St. James' Evening Post [2 Atk. 469 : s.c. 26 E.R. 633 (1742).], Scott v. Scott [[1913] A.C. 417.], Charlton's case [2 My. and Cr. 316 (1838).], In re Wallace [L.R. 1 P.C. 283 (1866).], In re Davies [L.R. 21 Q.B.D. 236 (1888).], Onslow's case [L.R. 9 Q.B. 219 : s.c. 12 Cox 350 (1873).] and Skipworth's case [L.R. 9 Q.B. 230 (1873).] ]. A careful scrutiny of the cases in the books shows, however, that much confusion exists in the reported decisions as to whether or not contempt proceedings are civil or criminal, where the contempt is committed in relation to a civil proceeding, and it is consequently desirable to investigate briefly the true test for differentiation.

16 16 [ ] The power to punish for contempt is inherent in the very nature and purpose of Courts of Justice. It subserves at once a double purpose, namely, as an aid to protect the dignity and authority of the tribunal and also as an aid in the enforcement of civil remedies. The power may consequently be exercised in civil or criminal cases or independently of both, and either, solely for the preservation of the authority of the Court or in aid of the rights of the litigant or for both these purposes combined. By reason of this two-fold attribute, proceedings in contempt may be regarded as; anomalous in their nature, possessed of characteristics which render them more or less difficult of ready or definite classification in the realm of judicial power. Hence, such proceedings have sometimes been styled sui generis. That they are largely of a criminal nature, inasmuch as the Court has power to convict and punish for the wrong committed, cannot be disputed, and yet it must be recognised that, in some respects, by reason of the end subserved, they partake of the nature of a civil remedy. This dual characteristic has given rise to many controversies, specially when questions have arisen as to right of appeal from the order passed, R. v. Barnardo [23 Q.B.D. 305 (1889).], Barnardo v. Ford [[1892] A.C. 326.], Helmore v. Smith [L.R. 35 Ch. Div. 449 (1886).], A.G. v. Kissanoe [82 L.R. Ir. 220.], Hunt v. Clarke [68 L.J. Q.B. 490 (492) : s.c. 37 W.R. 724 (1889).], R. v. Staffordshire [67 L.J. Q.B. 483 (1888).], O'Shea v. O'Shea [[1890] 15 P.D. 59.], Bessette v. Conkey & Co. [194 U.S. 324.], Re Christensen Engineering Co. [194 U.S. 458.], Warden v. Searls [121 U.S. 14.] and Gompers v. Buck's Stove Co. [221 U.S. 418.] the applicability of rules of evidence, [Celluloid Co. v. Chrolithian Co. [24 Fed. 585.], Bullock Co. v. Westinghouse Co. [63 C.C.A. 607 : s.c. 194 U.S. 636.] and Exp. Could [99 Cal. 360 : s.c. 21 L.R.A. 751 : 37

17 17 Am. St. Rep. 57.] ] the finality of the judgment, [Fisher v. Hayes [19 Blatch 13 : s.c. 6 Fed. 63.] and Re Mulee [7 Blatch 23 : s.c. 17 Fed. Cas ] ], liability for payment of costs, Re Cornish [9 T.L.R. 196.], Re Martindale [[1894] 3 Ch. 193, 200.] and Day v. Longhurst [62 L.J. Ch. 334.], right of trial by jury [Tinsley v. Anderson [171 U.S. 101.], Re Debs [158 U.S. 564.] and Ellenbecker v. Plymouth Court [134 U.S. 31.] ] and other like matters. The difficulty in each case is to determine when a particular proceeding assumes the criminal rather than the civil aspect, or when of both, and, if the latter, which feature must control. The question has been repeatedly and elaborately discussed by the Supreme Court of the United States. [Ex Kearney [7 Wheaton 38.], New Orleans v. Steamship Co. [20 Wallace 387.], In re Chiles [22 Wallace 157.], Hayes v. Fisher [102 U.S. 121.], Warden v. Searls [121 U.S. 14.], Be Debs [168 U.S. 564.], O'Neal v. United States [190 U.S. 36.], In re Christenson Engineering Co. [194 U.S. 458.], Bessette v. Conkey & Co. [194 U.S. 324.], Doyle v. London Guarantee [204 U.S. 591.] and Gompers v. Buck's Stove Co. [221 U.S. 418.] ]. The view deducible from these decisions is in general agreement with what is indicated above, namely, a proceeding to punish for contempt has the essential qualities of a criminal proceeding, whether the proceeding is initiated primarily to vindicate the Court's authority or solely as a coercive and a remedial measure to enforce the rights of the litigant or for both these purposes combined. This must be so, since it necessarily results from the nature of the power to punish for contempt that whatever the primary purpose of such a proceeding may be, it is always within the power of the Court to make its judgment, in part, at least, punitive or vindicatory in character; in other words, where the sole purpose sought by initiating the proceeding is to secure the coercive and remedial action of

18 18 the Court against a party, the Court may, nevertheless, in its discretion, add a punishment, by way of fine or imprisonment, for the failure of the person in contempt to obey its mandate. I think it undeniable that the proceeding must be regarded from its inception to the point of judgment as of a criminal nature, or, at least, potentially so, since, until the judgment is given, it cannot be known what its character will be. It is the judgment, therefore, which must eventually in any case determine the character of the proceeding, and this leads to the conclusion that logically, perhaps, instead of characterising contempt proceedings as criminal or remedial according to circumstances, it is contempt judgments that should be so classified. In any view, there is no room for controversy that where, as here, the contempt consists in an attack upon the Court, the proceedings, instituted to vindicate its dignity, are of a criminal nature, even though the attack has been made in connection with civil suits or appeals, either actually decided or pending or about to be taken up for disposal [Legal Remembrancer v. Moti Lal Ghosh [I.L.R. 41 Cal. 173 : s.c. 17 C.W.N (1913).] ] That it is most respectfully submitted that the order dated in aforementioned Civil Appeal No of 2012 has been contravened by the Respondent(s) by transferring Judge Utpat who was overseeing the Sohrabuddin encounter trial and therefore wilful disobedience of this Hon ble Court s orders by the Respondent(s).

19 It is further submitted that the Applicant has a right in law to bring to the notice of this Hon ble Court the commission of contempt by the Administrative Committee of the High Court of Bombay. In this regard we may advert to the decision of this Hon ble Court in D.N. Tania v. Bhajan Lal [(1988) 3 SCC 26] wherein it was observed that: 12. Right of appeal is a creature of the statute and the question whether there is a right of appeal or not will have to be considered on an interpretation of the provision of the statute and not on the ground of propriety or any other consideration. In this connection, it may be noticed that there was no right of appeal under the Contempt of Courts Act, It is for the first time that under Section 19(1) of the Act, a right of appeal has been provided for. A contempt is a matter between the court and the alleged contemnor. Any person who moves the machinery of the court for contempt only brings to the notice of the court certain facts constituting contempt of court. After furnishing such information he may still assist the court, but it must always be borne in mind that in a contempt proceeding there are only two parties, namely, the court and the contemnor. It may be one of the reasons which weighed with the legislature in not conferring any right of appeal on the petitioner for contempt. The aggrieved party under Section 19(1) can only be the contemnor who has been punished for contempt of court. [Emphasis Supplied] 10.6 In this regard we may advert to Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 (made under Section 23 of the Contempt of Courts Act

20 20 read with Article 145 of the Constitution of India) which provides any person the opportunity to present a petition to the Supreme Court to punish for contempt other than the contempt committed in view or presence or hearing of the Court under Rule 2: 3. In case of contempt other than the contempt referred to in Rule 2, the Court may take action (a) Suo motu, or (b) On a petition made by Attorney-General, or Solicitor-General, or (c) On a petition made by any person, and in the case of a criminal contempt with the consent in writing of the Attorney-General or the Solicitor-General. [Emphasis Supplied] 10.7 It is therefore respectfully submitted that this Hon ble Court has the power to punish for contempt under Article 129 of the Constitution read with Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 empower this Hon ble Court to punish the contemnor(s)/respondent(s) for wilfully disobeying the express orders of this Hon ble Court That the Constitution of India under Article 129 gives the suo motu power to the Supreme Court to punish for contempt of itself: 129. The Supreme Court shall be a court of record and shall have all the powers of such a

21 21 court including the power to punish for contempt of itself That in an action of the Supreme Court under Article 129, there is no prescribed period of limitation and this has been observed by this Hon ble Court in Subramanian Swamy v. Arun Shourie [(2014) 12 SCC 344] that the limitation provided under Section 20 of the Contempt of Courts Act, 1971 finds no application under the suo moto power of the Supreme Court to punish for contempt under Article 129 of the Constitution: 9. It may be observed immediately that the learned Solicitor General and the learned Senior Counsel for the respondent in the course of arguments agreed that for exercising the suo moto power for contempt under Article 129 of the Constitution of India, the limitation provided in Section 20 of the 1971 Act has no application. There is no challenge before us about the legal position that there are no implied or express limitations on the inherent powers of the Supreme Court of India and, therefore, no limitations can be read into Article 129 of the Constitution That the submissions of the applicant was non-compliance with the order of this Hon ble Court dated amounting to civil contempt in that there has been wilful noncompliance with the direction of this Hon ble Court. The fact that Judge Utpat was transferred without the consent of the Supreme Court has not been denied by the Respondent State. Hence it submitted that the said submission of initiating civil contempt against the High Court in its administrative capacity is prima facie a tenable and credible argument and

22 22 is not fanciful of motivated by any malice or intended to interfere with the independence of the judiciary The procedure for initiating contempt proceedings is laid under Section 14, Contempt of Courts Act and requires an opportunity to be provided to the alleged contemnor to show why contempt action be not taken against them. The particular extract of Section 14 (1) is set out below: 14. Procedure where contempt is in the face of the Supreme Court or a High Court. (1) When it is alleged, or appears to the Supreme Court or the High Court upon its own view, that a person has been guilty of contempt committed in its presence or hearing, the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall (a) cause him to be informed in writing of the contempt with which he is charged; (b) afford him an opportunity to make his defence to the charge; (c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and (d) make such order for the punishment or discharged of such person as may be just This Hon ble Court in A.M Mathur vs. Pramod Kumar Gupta & Ors. [(1990) 2 SCC 533] this Hon ble Court has held that adverse comments against a party or counsel without providing an opportunity to be heard is unwarranted, unjustified and deserves to be expunged. This Hon ble Court,

23 23 while passing the above judgment reiterated the decision in State of M.P vs. Nandanlal Jaiswal [(1986) 4 SCC 566], where Bhagwati C.J. observed 43. We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties of their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do consider- able harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by B.M. Lal, J. were totally unjustified and unwarranted and they ought not to have been made This Hon ble Court further held in A.M Mathur supra as under: 13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process. 14. The Judges Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The Judges have the absolute and unchallenged control of the Court domain. But they cannot misuse their authority by intemperate comments,

24 24 undignified banter or scathing criticism of counsel, parties or witnesses Learned Judge having held that the High Court has no jurisdiction to entertain the review petition ought not to have commented on the professional conduct of the appellant and that too without an opportunity for him. We regret to note that the observations made and aspersions cast on the professional conduct of the appellant are not only without jurisdiction, but also they are wholly and utterly unjustified and unwarranted. 16. We therefore, allow the appeal and expunge all the remarks made by B.M. Lal, J. against the appellant in the impugned order This Hon ble Court in the present case in judgment dated has held the applicant guilty of prima facie criminal contempt, namely of scandalising the Court. That the Hon ble Court has not afforded the applicant an opportunity to defend herself against charges of criminal contempt by not issuing a written notice, informing what actions of the applicant amounts to criminal contempt prima facie or otherwise and neither was she given an opportunity to defend herself against the charge of criminal contempt as required under Section 14. In fact this Hon ble Court has held that petitioners and interveners which. would appear to include the applicant herein are prima face guilty of committing criminal contempt without issuing individual written notices to each of the alleged contemnors including the present applicant.

25 That by not affording an opportunity to the present applicant to defend herself against charges of contempt, the principles of natural justice have been violated; in as much as the applicant has been held to be a contemnor, without her defence being heard. The adverse observations/findings made by this Hon ble Court applicable to all counsels appearing for the petitioners and interveners has also resulted in the same observations being recorded against the applicant that too without any submissions being forwarded by the present applicant which would tend to scandalise or lower the majesty of this Hon ble Court. Effectively, this Hon ble Court has returned a finding of holding the Applicant prima facie guilty of contempt by not even giving an opportunity to the Applicant to defend herself in the manner prescribed by law The judgment of this Hon ble Court is a Law under Article 141 of the Constitution of India. Even otherwise, in the instant matter, this Hon ble Court was dealing with issues that had wide ranging constitutional ramifications. Such unfounded and unilateral findings/observations against the Applicant herein are gravely prejudicial and unfair and hence deserve to be expunged. 11 Thus in the afore-going circumstances, the Applicant herein is constrained to file the Application, which is filed bona fide and deserves to be allowed in the interest of justice.

26 26 12 That the Applicant has no alternative but to approach this Hon ble Court for the appropriate remedy. PRAYER 13 In light of the facts and circumstances mentioned hereinabove, it is most respectfully prayed that this Hon ble Court may graciously be pleased to: a) Issue appropriate order or direction expunging/deleting the remarks made against the counsel for present intervener/applicant herein that the conduct of the counsel/applicant herein amounted to contempt or prima facie contempt of court, namely the following: 74. The present case is indeed a case in point. Repeatedly, counsel for the petitioners and intervenors have attempted to inform the court that they have no personal agenda and that they have instituted these proceedings to protect judicial independence. An aura of good faith has been sought to be created by submitting that the true purpose of seeking an inquiry into the circumstances relating to the death of Judge Loya is to protect the district judiciary [ ] 75. [ ] Ms Jaising has joined the fray by requesting that this court to issue contempt notices to the Administrative Committee of the Bombay High Court 76. [ ] The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt 78. [ ] The conduct of the petitioners and the intervenors is, as we have indicated, lacking in bona fides and reveals a misuse of judicial process.

27 27 b) Issue appropriate order or direction issuing a clarification that the counsel for the present intervener/applicant herein has not furthered any submissions or engaged in conduct which may amount to contempt of Court if it so deems fit; c) Call for High Court of Bombay for the records of the meeting of administrative committee of the High Court dated to ascertain the reasons for transfer to Judge Utpat, and to ascertain whether the consent of this Hon ble Court was obtained or whether this Hon ble Court was kept informed that Judge Utpat was being transferred; d) Pass such other order(s) or directions(s) as this Hon ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice. AND FOR THIS ACT OF KINDNESS, THE APPLICANTS AS IN DUTY BOUND SHALL EVER PRAY. Drawn On: Filed on: New Delhi FILED BY: MR. SUNIL FERNANDES Advocate for the Applicant