Because the collegium is supreme

BY A correspondent| IN Law and Policy | 03/04/2010
In one more contempt case, a high court chief justice grills a newspaper for exposing a judge’s background.
By a correspondent

Published in Sep 22  2003     Can truth be a defence in matters of contempt of court? There is a longstanding demand of legal luminaries that truth be considered a defence, in fact a bill to this effect is awaiting clearance in Parliament. How helpless `truth` can become can be illustrated from this case where a reporter of The Times of India wrote a news article, based on government documents, on the appointment of a judge to Punjab and Haryana High Court.

The report was unprecedented in the sense that it was not based on hearsay but crucial government documents related to the said judge`s appointment. It was clear from the documents that despite the then President KR Narayanan returning the appointment file of that judge to the law ministry because Intelligence Bureau had found that the judge was `corrupt` and associated with a political outfit, the law minister had  sent the file back to the President argued at length that the candidate is best suited for judgeship. The minister even doubted the IB report. Left with no choice, President gave his ascent the second time but made his displeasure very clear. The report came out on May 8, and minister`s rejoinder was published in full the next day i.e May 9.

Silence followed for two months. Then  in July the Punjab and Haryana High Court issued notice to the TOI`s reporter and printer and publisher. The hearing was posted on August 25 but since the notice came only on August 23,  adjournment was sought and the matter came up on August 29 before a division bench headed by the chief justice BK Roy. The court had also asked the justice department to send in a sealed cover documents related to the appointment of the said judge to the court.

After reading affidavits of TOI reporter and printer & publisher, the chief justice asked, ``So the apology is not from the bottom of the heart.`` TOI lawyer Manmonhan Sarin submitted he would like to argue about it. ``There is a criminal contempt in this case,``Chief Justice retorted, asking Suryakant Sharma, advocate-general Haryana government, and amicus curiae in this case to begin his arguments. Sharma argued that there is little doubt that a criminal contempt has been committed and the reporter be punished

Citing contempt cases, Sharma argued, for more than an hour, that the TOI report was not `news` but `view`. How? According to him, use of the word `key` in the news report to describe the main reason which clinched judgeship for the candidate smacked of view and definitely not news. Chief Justice asked him to clarify whether the reporter be jailed for six months, one month, one day or be asked to stand till the rising of the court. ``As a symbolic act, the reporter be jailed for a day,`` Sharma replied.

TOI`s counsel Sarin argued at length that the report was balanced and there was no intention to scandalise the collegium of the P&H High Court and the Supreme Court. When asked by Chief Justice Roy why the news report has come two years after the said judge`s appointment, Sarin explained that news of Delhi High Court`s Justice Shameet Mukherjee`s alleged involvement in DDA scam and later arrest was in the public domain and there was outcry about the manner in which judges are being appointed, so the TOI reporter did the story on the basis of original documents. ``There was no intention to scandalise the administration of justice,`` Sarin argued.

At this stage Sarin requested the court to allow him to place documents, on the basis of which story was done, for record. Justice Roy while orally rejecting Sarin`s demand said, ``I don`t know what you are going to show.`` Sarin persisted and finally documents were given to Justice Roy and Justice Sud. Sarin resumed his arguments saying that TOI reporter was genuinely interested in public debate on the issue and had no motive behind doing the news report. He even gave instance of how Jaitley`s rejoinder was published in full by the newspaper the next day. CJ Roy observed as to how come a newspaper like the TOI which he had been reading since the age of nine can do such a news report attacking judiciary. Later, he praised the reporter for having dug out secret documents. But he had his doubts about credibility of the IB report. He also cited an instance of how the intelligence report had been found completely false. 

``Collegium is supreme,`` he said adding that in this case the High court collegium was expanded to take view of other judges about the candidate. Even the Supreme Court collegium had not raised any objection. Sarin argued that what could have been done was suggested by the then President Narayanan who had said in his final note that IB should have been asked to verify candidate`s antecedents once again. Another of Sarin`s argument, the best in fact, was that in case there was contempt why did not the Supreme Court or the P&H High Court issue suo-motu contempt notice in May itself. ``Do you know that SC was closed for vacations,`` Justice Roy replied. But what about the P&H High Court, Sarin asked.

The court asked the  counsel of other contemnors -- Ajay Bansal on whose complaint to remove the said judge a contempt notice was issued and `Haribhoomi`, a Hindi newspaper which had copied TOI`s report verbatiam.

Later, CJ Roy gave Sarin the reason why contempt notice was not issued in May. ``I was investigating if the story is correct or not,`` he said. It is another matter that notice to the justice department was issued along with contemnor only in July.

Sarin cited the Arundhati Roy`s case. The noted author in the Narmada Bachao Andolan case had attacked the Supreme Court but the Apex court had forgiven her on the ground that its shoulders are broad enough to take criticism. ``But finally she was convicted for a  day later in the same case,`` CJ Roy countered Sarin.

CJ Roy told Sarin that the Bench needs to be convinced that contempt has not been committed. At one stage, Justice Roy also said the newsreport puts judiciary in a poor light. He recalled that when the news report came he started thinking whether he should allocate work to the said judge or not. Sarin, on his part, cited a contempt case in which a judge of Supreme Court was named as one of the beneficiary of Petrol Pump allotments in a news report. The apex court first asked the government to verify the facts and only when the news report was found false did contempt proceedings begin. But SC accepted the  apology of the editor and reporter. ``But in this case my client has written on the basis of documents. If need be court should ask the government to verify the documents,`` Sarin said.

Later, Sarin cited more cases in the TOI`s defence. On apology, Sarin contended that the idea was not to scandalise judiciary and administration of justice of the said judge who had been carrying out his functions for more than two years. If the court is hurt, apology be accepted from the bottom of the heart, Sarin said.

``Not from the centre of the heart,`` CJ Roy asked. ``From all corners of heart, me Lord,`` Sarin replied .

Haribhoomi`s counsel RS Cheema, at the outset, admitted that his client had committed a mistake of translating a news report from TOI without having the documents. But he said, it was in public interest.

Moreover, Cheema argued, the collegium is not a judicial entity since it was carrying out administrative functions while dealing with appointments and public has the right to know about it.

Cheema cited the case of Hindustan Times during the World War. In  this case, HT had reported that the Chief Justice of Allahabad High Court had written to other judges to collect money for war efforts. Government found that the news report was patently false but the Privy Council accepted the apology.

The judgement in the TOI case is awaited. 

The original report

Govt ignored IB report on HC judge


NEW DELHI: The arrest of former Delhi high court judge Shameet Mukherjee for his alleged involvement in the DDA scam has led law   minister Arun Jaitley to speed up legislation to ensure transparency in appointments and check cases of improper behaviour by judges. 
However, documents available with The Times of India on the appointment of high court judges in 2001 suggest that the Union law ministry has itself been willing to overlook questions raised by the Intelligence Bureau about the integrity of candidates. 

The case in point was the May 2001 appointment of Punjab and Haryana High Court judge Adarsh Kumar Goel. High court judges are appointed in the following way: The state government sends a   

list of names through the governor to the chief justices of the Supreme Court and the concerned high court. This list is then sent to the law ministry, which obtains an IB report on the nominees. Thereafter, it prepares a matrix with three criteria — professional competence, integrity and political links. 
 In the case of Goel, the law ministry matrix contains no entry under the `Professional Competence` column, while the `Reputation/Integrity` column bluntly says: "Corrupt person". The key to his subsequent appointment appears to be the listing in the political affiliation column, which notes that Goel was general secretary of the All-India Adhiwakta Parishad, the lawyers` wing of the RSS. 

Curiously, among the five short-listed advocates whose integrity the IB had questioned, he was the only one cleared by the ministry. But before his appointment, there was a big hurdle: Goel`s name, along with four others, went for the approval of K R Narayanan, who was President at the time. While Narayanan approved the appointment of M K Mittal as additional judge of the Punjab and Haryana High Court, he made observations about three others, including Goel, and returned the file to the law ministry. 
 However, the minister, Arun Jaitley, defended the recommendation. In a confidential note dated May 19, 2001, Jaitley dismissed the IB finding on Goel`s integrity as a "slur". He said that the high court and the Supreme Court collegium had both reconsidered him. He quoted the chief justice and members of Punjab and Haryana High Court collegium as having reiterated that Goel has an "impeccable reputation of being an upright and honest advocate." 
 On May 21, 2001, Prime Minister Vajpayee put his signature and the file went again to Narayanan. Having sent back the file once, Narayanan had the constitutional obligation of approving the appointment but he made his unhappiness clear. The President noted: "Nonetheless, I feel that a more desirable course of action would have been to follow the same procedure as was done in a similarly placed case of the Calcutta High Court where the advice of the Chief Justice, which is integral to the selection process, was sought again and duly received...I would also appreciate if my instant observations are shared with the Chief Justice of India along with my earlier observation dated May 3, 2001 on this matter." 

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