Petition to Indian Parliament and to Tamil Nadu Assembly by Dravida Peravai
Fri, 2007-10-05 02:41
Chennai, 05 October, (Asiantribune.com): 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
N.Nandhivarman
General Secretary Dravida Peravai
Courtesy :- Asian Tribune.com -
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