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Opinion – Contempt of Court: A Stark Contrast Between Prashant Bhushan and Justice CS Karnan

This article looks at two cases of Contempt of Court, adjudicated by the Supreme Court of India. The stark difference between the two cases, with no plausible explanation, is quite telling about the power dynamics of the country. 

By: Arnav Sharma, 2nd year, B.B.A. LL.B, Jindal Global Law School.

India loves the Contempt of Courts Act, archaic legislation first enacted in 1926 by the colonial rulers, the British. Having its origins in British law, it was amended in 1971 and has been like that ever since. Contempt of Court is the offence of being disobedient or disrespectful towards a court of law, in the form of behaviour that defies the authority, justice and dignity of the court. The UK did away with the Contempt of Court long ago. But in India, it seems like it is here to stay. 

The Supreme Court’s contempt of court ruling against Prashant Bhushan stirred India’s soul. Liberal anger poured, with several judges even openly speaking in his support. But not too long ago, many of them watched in silence when Justice CS Karnan was sent to jail for 6 months for calling out corrupt judges. That the outrage is selective is so obvious. Saying that this is because of the difference of caste would do it injustice; Prashant Bhushan is a Brahmin, the highest caste, while Justice Karnan is a Dalit, the lowest.

But, Prashant Bhushan is a product of Delhi’s power elite, he is ‘one of them’ only. Justice Karnan is an outsider to this cosy circle. 

But contempt notices or proceedings won’t make Bhushan lose sleep; he has faced similar charges in 2001 and 2009. Every single time, his main argument has been Freedom of Speech. The gutsy and veteran advocate has never missed an opportunity to hammer the judges on corruption. He has rarely put forth any evidence in the public domain but still made huge allegations. He was fined Rs.1. 

On the other hand is Justice Karnan. As long as he shot off letters to Chief Justices of High Courts, to the CJI and occasionally to the Prime Minister, and his unpleasant accusations and theatrics as a self-proclaimed crusader were confined to the High Courts, the Supreme Court was hardly perturbed. But when Karnan defied the Supreme Court, the SC set up a seven-judge bench led by the CJI, and unanimously sentenced a sitting HC judge to prison, without even initiating the proceedings for his impeachment. 

On the bench were Justice Jasti Chelameswaram and Madan B Lokur, both of whom have now endorsed the resolution expressing solidarity with Bhushan and condemning the SC verdict holding him in contempt.

They termed his criticism of judges and the SC as the right to free speech and demanded the withdrawal of contempt proceedings. 

This raises the question: Why didn’t both these judges adopt the same evaluation process while deciding the case against Karnan? Why didn’t they dissent with the majority and gave Karnan a clean chit for exercising freedom of speech alleging corruption amongst judges? If Bhushan is exercising his ‘freedom’ while alleging that judges of the Supreme Court are corrupt, biased, and tilted towards a political party, or ideology, why is it that the same ‘freedom’ is not afforded to Justice Karnan, who was also alleged corruption in the judiciary. If they are right on Bhushan, then they are wrong on Karnan. 

The silence on the Karnan case is shocking. Justice Karnan did not make any public allegations against any judge. He had sent his complaint to the Prime Minister’s Office in a sealed envelope. He had asked for independent investigations into the claims made by him and offered to provide evidence backing his claims. Contrast this to Bhushan, who loud-mouthed on social media, singling out specific and selective judges and thus, in the public domain. 

So how does one understand the absolute silence in the Karnan case, but widespread outrage and support in Bhushan’s case? The simplest way to look at this is as I mentioned above; Justice Karnan is a Dalit outsider, not a part of the system, the media acted with bias and failed to present his case in totality.

The SC itself wished the same, that nobody ever really knows Justice Karnan’s side of the story, by explicitly stating in the Karnan judgement that ‘the media cannot publish or broadcast any statements made by Justice Karnan’, an unbelievable act by the Constitutional Court of a free, democratic republic.

On the other hand is Prashant Bhushan who belongs to the Upper Caste and the ruling elite. His father was Shanti Bhushan, the Law Minister in the Moraji Desai Cabinet, and the father-son duo was the 75th Most Powerful Indians, according to The Indian Express in 2009. 

Another reason for the same is that Justice Karnan was not just challenging the HC and SC, but he had put the whole power structure under scrutiny. The ‘Dalit gaze’ on the upper caste dominated judiciary, was unnerving for the Lutyens’s elite. Justice Karnan put into spotlight the caste domination, hegemonic structure and the opaque and non-transparent/ non-accountable judiciary of India. This is almost blasphemy for the Lutyens’s elite. The same was held by the Kariya Munda Committee of the Indian Parliament (2000-2001), which had found that despite there being suitable, eligible and well qualified SC/ST candidates (judges in District and High Courts), none of them were in the judgeship of the Supreme Court. 

Bhushan finds many new friends among the elites after the Supreme Court verdict. Not only because he is one of them, but because he is a man of the system. Justice Karnan is an outsider and, naturally, he found no friends among the elites and opinion-makers.

In my opinion, the Supreme Court’s judgement on Justice CS Karnan is another ADM Jabalpur; a blunder for which the court, and those who stayed silent on it; Justice Karnan’s pleas of mercy, pardon and review were ignored by the Parliament, the Supreme Court and by the President of India, will repent; it is a blunder of such high order, that it will come to haunt the court in the future, and they’ll have to apologize, just as Justice P.N. Bhagvati had to in 2011, 40 years after his troubled judgement in the ADM Jabalpur case.

How To?

How to Draft a Settlement Agreement

This article shows how a legally valid Settlement Agreement can be drafted by laymen. Settlement Agreements are a good way of resolving disputes as it avoids lengthy and expensive litigations. This article discusses the steps to take to make a foolproof Settlement Agreement. 

By: Arnav Sharma, 2nd Year, B.B.A. LL. B (Hons.), Jindal Global Law School.

Introduction

In today’s world, a lot of issues, be it personal, societal, professional or commercial, prop up before courts, and drain both the judicial services as well as individuals and groups. At times, even after years and fortunes are spent on litigations, either the dispute continues to drag on, or the outcome is not as expected by one or both the parties, and what they gain from such victory is reduced sizably on the account of time and money they had invested to sludge through the courts. This has made Arbitration, Mediation and Settlement an enticing option for parties seeking to iron out any issues or disputes. The most important aspect of this is the Settlement Agreements. 

What is a Settlement agreement?

Settlement Agreements are legally binding contracts that are intended to resolve a dispute between two parties such that both the parties do not have to go through the extremely costly and time-consuming judicial process or extend the process if the parties are already fighting in the court. 

Why Settlement Agreements?

When parties to a dispute reach a mutually agreeable compromise, it becomes prudent that the terms and conditions of the agreements are recorded in writing to obtain certainty, clarity and finality.

It also provides for future arbitrations, and since it is a legally enforceable contract, any parties that act in contravention to the settlement agreement can be rightfully dragged to the courts and made to pay penalties for their transgressions. 

Steps to draft a Settlement Agreement

  • Agreement on the nature of the dispute: Parties tend to have different views of the dispute, who and what caused it etc. Before moving further, the parties must agree on the factual terms of the dispute. 
  • Settlement Sum: Usually, one of the parties which have given up possible legal remedies demands a settlement sum instead of it. The amount, mode of payment, date and time of the payment and other such logistics are hammered out beforehand. 

Negotiation Stage: This is the first and one of the most important stages when drafting a settlement agreement. The parties who are entering the agreement discuss all aspects such as the scope of the agreement, duration, mode of payment etc. 

  • Writing the agreement: This is the stage at which the agreement is typed out, with the following mentioned in great detail – 
  • The Title of the Agreement. 
  • The name of the parties. 
  • A detailed description of the issue/ dispute, where, how, when it happened etc. 
  • The Settlement Costs. These are different from Settlement Sum; the former are the payments that arise because of the dispute, while the latter is just a sum that one party must pay to the other if it has begun exploring possible legal options i.e., a sum to dissuade the party from going to the courts. This should include the amount, mode, date, time and what happens on non-payment amongst other logistics in great detail. 

A clause of Non-Confidentiality. Most of the times, parties add a clause non-confidentially to prevent both the parties from disclosing the nature or details of the settlement. This should also include the penalty a party will have to face if they disclose any such confidential information. 

  • Dispute Resolution: Disputes or disagreements over the settlement agreement would likely arise in the future. Therefore, a settlement agreement must include clauses that bind the parties to behave in a particular manner or to contest the agreement in a specific jurisdiction, if any issues arise in the future. 
  • The duration of the agreement should also be mentioned. 

Terms of Termination. A settlement agreement must lay out how the agreement can be terminated by any of the parties. Also, what damages a party who wishes to terminate the agreement must pay should be mentioned. 

  • Signature of both the parties. The signatures and name of both the agreeing parties should be at the end of the document. 

That is how a legally enforceable Settlement Agreement can be drafted. While it is becoming increasingly common that individuals themselves draft and sign settlement agreements, in big, complex and or commercial disputes, a mediator or a lawyer can play an important role.

News, Top Stories

‘Considering Age Factor Will Give Adverse Result’: Kerala HC declines Pre-Arrest to 18-Year-Old Accused of Transmitting Morphed Content Online [READ ORDER]

“These kinds of offenses are fast increasing in our society. So, to curb such kinds of offenses, granting of pre-arrest considering the age factor of the petitioner will give only an adverse result. Hence, I am not inclined to grant pre-arrest bail to this petitioner though he is a college student aged only 18 years”, the Judge noted in her Order.

By: Shannia Yesenia, LLB, Prima University.

The petitioner was a neighbor of the complaint and thus, he and the complainant’s family are close acquaintances who regularly visit each other’s home to play with their children. The applicant was alleged to have taken photographs of the wife in his phone, morphed it, and uploaded it on social media using a false account under her name. Learned counsel has stated that the petitioner is a college student currently pursuing his studies. 

“He is totally innocent of the allegations levelled against him. With the very same allegations the defacto complainant has submitted a complaint before the police and Crime No.1450/2020 was registered and when he moved bail application, the investigating agency reported that the offence alleged was only bailable offence. The same was recorded and bail application was closed. Thereafter he has been implicated in non bailable offences under the influence of the defacto complainant who is in inimical terms with the parents of petitioner. In fact, his mobile phone was seized by the investigating agency and major portion of the investigation is over is the submission of the learned counsel,” submitted the learned counsel. 

The learned Public Prosecutor vehemently opposed the application and submitted that the offenses alleged against this petitioner are grave and serious in nature and the investigation is only in progress.

Noting that there was prima facie material demonstrating that the photographs of the wife of the complainant have been morphed and transmitted, in this respect, the court repeated that the ITA was a complete code to deal with the publication or transmission of obscene materials in electronic form.

Moreover, the prosecution has also an allegation that by circulating the morphed sexually explicit photographs and pictures, the petitioner had collected money by using google pay. So definitely, time is required for the investigating agency. The seizure of the mobile phone of the petitioner alone is not sufficient to proceed with the investigation. It was submitted that “The offences alleged against this petitioner is an affront to a decent society. Granting of bail that too pre-arrest bail to such a person would only convey a wrong message to the wrongdoers. These kinds of offences are fast increasing in our society. So, to crub such kind of offences, granting of pre-arrest considering the age factor of the petitioner will give only an adverse result. Hence, I am not inclined to grant pre-arrest bail to this petitioner though he is a college student aged only 18 years.”

News, Top Stories

Family Court Does Not Have Plenary Powers to Do Away with Mandatory Procedural Requirements: Supreme Court

The Supreme Court ruled that a family court does not have plenary powers to do away with the mandatory procedural requirements which guarantee fairness and transparency for adjudication of claims (Aman Lohia vs Kiran Lohia).

By: Shailvi Gupta, Banasthali university, Jaipur.

A family court is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statute, the Court held.

“Family Court is expected to follow procedure known to law, which means insist for a formal pleading to be filed by both sides, then frame issues for determination, record evidence of the parties to prove the facts asserted by the concerned party and only thereafter, to enter upon determination and render decision thereon by recording reasons for such decision,” the judgment said.

The judgment was delivered by a three-judge Bench of Justices AM KhanwilkarBR Gavai and Krishna Murari in an appeal by a father (appellant) challenging a September 2019 order of a family court granting custody of the child to his wife after concluding that the father had “abandoned the petition”.

A guardianship petition was filed by the father under Section 7 of the Guardians and Wards Act, 18905 read with Section 7(g) of the Family Courts Act, 1984 on the assertion that the minor child was in his custody at the relevant time. The appellant sought himself to be declared guardian of the child.

The respondent wife also filed an application under Section 151 of the CPC for declaring her to be the sole and absolute guardian of the minor child.

This application was filed on September 13, 2019 and notice was issued to the appellant that day and the matter was posted for hearing on September 16, 2019 at 2 pm. Since the appellant did not enter appearance that day, the matter was posted for September 19, 2019.

In the meantime, the respondent filed another application under Order I Rule 10 and Order XXIII Rule 1A read with Section 151 of the CPC to transpose her as the petitioner in the guardianship petition.

Eventually, the matter was heard on September 21, 2019. No notice of the transposition application was ever served on the appellant nor was he given notice regarding hearing of the said application before the Court, despite the fact that his counsel had been discharged from the case and the appellant was not represented by any other counsel.

The family court ruled that the appellant had abandoned the petition and transposed the wife as the petitioner in the main guardianship petition.

The main guardianship petition was also decided the same day against the appellant by holding that giving guardianship of the minor child, who was only two and half years of age, to the appellant, was not advisable.

It ruled that the father had dis-entitled himself to be declared as guardian of the minor child and that in “paramount interest and welfare of the child, the respondent mother needs to be declared as the sole, exclusive and absolute guardian and custodian of the minor child.”

The Supreme Court took exception to the procedure adopted by the family court in deciding the transposition application and guardianship petition.

“The (family) court could not have entertained the transposition application filed by the respondent ex parte and that too without ensuring that it was duly served on the appellant consequent to notice issued thereon by the Court,” the Supreme Court said.

On the family court’s finding that the appellant had abandoned proceedings, the top court said that here can be no legal presumption about the factum of abandonment of proceedings.

“The abandonment has to be express or even if it is to be implied, the circumstances must be so strong and convincing that drawing such inference. Family court does not have plenary powers to do away with the mandatory procedural requirements in particular, which guarantee fairness and transparency in the process to be followed and for adjudication of claims of both sides,” the judgment said.

In the instant case, the Bench noted that the family court was “in a tearing hurry, may be because of the insistence of the respondent and her counsel to do so.”

“The nature of inquiry before the Family Court is, indeed, adjudicatory. It is obliged to resolve the rival claims of the parties and while doing so, it must adhere to the norms prescribed by the statue in that regard and also the foundational principle of fairness of procedure and natural justice,” ruled Supreme Court,” the Supreme Court further observed.

In the present case, there was substantial non-compliance with the prescribed mandatory procedure and infraction of principles of natural justice and it was not a technical irregularity to be overlooked, the apex court concluded.

The top court, therefore, set aside the family court order, ordered revival of the guardianship petition and remanded it back to the family court for fresh adjudication.

News, Top Stories

Delhi Court Awards Death Sentence to Convict Ariz Khan, Observes “Rarest of The Rare Case” [READ ORDER]

Additional Sessions Judge Sandeep Yadav pronounced the order on the sentencing of convict in Open Court.

By: Shannia Yesenia, LLB, Prima University.

Ariz Khan was sentenced to the death penalty by the Delhi Court regarding the Batla House encounter of 2008 where a police inspector and two other alleged terrorists were killed during the attack between the two parties. The court claims that it is a fit case falling in the “rarest of the rare” category deserving maximum sentence under the law.

“Convict on account of his despicable act has forfeited his right to live. After balancing mitigating circumstances against aggravating circumstances is concluded that it is the rarest of the rare case where convict deserves maximum sentence provided under the law. It is the level of magnitude, degree of brutality, attitude and mindset of wrongdoer behind the crime along with other factors which makes it a rarest of rare case. Protection of society and deterring criminal is an avowed object of law and this is required to be achieved by imprisonment appropriate sentence. The most appropriate sentence for convict like Ariz Khan will be death penalty. Interest of justice will be met if convict is awarded death penalty” held the court. 

Further, the court observed that several deadly weapons were retrieved from the flat where the incident had taken place.

It should not be forgotten that deadly weapons like AK-47 and two pistols were retrieved from the flat where the shootout took place. The defence has not able to clarify as to for which purpose these deadly weapons were kept by the convict and his accomplices in the flat. Considering the nature of devastation that these weapons can cause, it will be safe to conclude that these weapons were kept in the flat with a view to indulge terrorist and anti-social activities.”

The first question that has arisen before the court while deciding the quantum of sentence is as to whether there is any chance of reformation of convict. It has been proved on record that convict after the shootout managed to escape and run away from the spot. The convict eluded investigating agencies for almost ten years despite coercive process against him. Convict was declared proclaimed offender way back in the year 2009 and was arrested in 21018. There is no evidence on record that convict during investigation or trial showed any signs of reformation or repentance. Thus, the natural and inescapable conclusion is that there is no chance of reformation of convict.In addition to that, the court stated that the abhorrent and brutal act of convict in firing on police party without any provocation itself shows that convict is not only the threat to the society but is also an enemy of the state. Involvement of convict in various blast cases not only in Delhi but also in Jaipur. Ahmedabad and U.P. in which hundreds of innocent people were killed and injured further demonstrates that convict continues to be a threat to the society and the nation.

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