TIMES NOW’S PARALLEL TRIAL IN TARUN TEJPAL CASE : A CLEAR CASE OF INTERFERENCE IN ADMINISTRATION OF JUSTICE.

Media should perform the acts of journalism and not as a special agency for the Court – Supreme Court of India, in Sidharth Vasisht v. NCT of Delhi (2010) 6 SCC 1, while chastising media for biased reporting of pending trial.

The quality of newsroom discussions hit a new low when Times Now held a horrendous debate on the CCTV footage in the rape case involving Tarun Tejpal, by brazenly defying court order and statutory provisions. The debate aired on May 28, was preceded by dramatic build-up in social media, with the hashtag “ #TejpalTapes”.

Tarun Tejpal, journalist and chief editor of Tehelka,  is accused of committing rape on his junior colleague inside an elevator in a hotel in Goa during November 2013. The “never seen before video tapes” shown by Times Now depicted two persons ( who the channel claims to be Tejpal & the complainant) entering and exiting an elevator in a hotel lobby. 

The debate carried out in two sessions, one anchored by Editor-in-Chief Rahul Shivshankar and another by Managing Editor Navika Kumar, was attended by several panellists, including lawyers. The CCTV footages were repeatedly shown, and the anchors baited the panellists with their own subjective interpretations based on the body language of the persons shown in the footage. The panellists took their turn in either attacking Tejpal, or discrediting the complainant-woman, based on their surmises from the footages having a duration of few seconds. The discussion was shrill, lacking in nuance, and without any regard for the rights of the accused and the privacy of the complainant. When the debate inched towards victim-shaming, it was clear with whom the channel’s sympathy was. Anyhow, the attempt of this column is not to analyse the journalistic merits of the channel show, but to point out the glaring legal violations in it.

Court order violated by airing video tapes.

The trial court in Goa which is seized of the matter has passed an order in June 2017 restraining the publication of court proceedings. The Court held that the proceedings will be held “in-camera”, meaning that the proceedings will not be open for general public to watch. The order was passed by the Court to preserve the dignity, respect and privacy of both prosecutrix and the accused. The video footage is an evidence in the case, upon which reliance is placed by both the prosecution and defence to support their respective versions. Regarding the violation committed by channel, Supreme Court criminal lawyer Rebecca Mammen John has commented as follows :-

Section 327 (2) and (3) of The Code of Criminal Procedure makes it clear that Rape trials shall be conducted in camera . It further states that “ it shall not be lawful for any person to print or publish any matter in relation to such proceedings , except with the previous permission of the court .” The footage that was aired yesterday is an exhibited document in the trial .
In an ongoing trial you cannot play any footage on your night show without the permission of the court . The court had not granted any such permission . On the contrary it has prohibited public viewing of the footage . Dear anchors : Got that ?

(insert FB post of Rebecca)

The video footage could not have been accessed by Times Now through means known to law. When the footage is part of court evidence, accessing it through other surreptitious means is blatantly illegal and improper.

Interference with criminal trial

The video footage lasting for a few seconds is only one of the several pieces of evidence in the trial. The video footage does not pertain to the alleged happenings inside the elevator. Therefore, to draw inferences of guilt or innocence based on the body language of the persons shown in the footage is too much of a guesswork, having no standing on its own independent of other evidence on record.  To hold a highly judgemental debate on the basis of this singular piece of evidence without reference to other evidences is grossly improper.

Discrediting of a witness is done on the basis of evidence and statements tendered in court, after putting the witness through cross-examination.  As per information gathered, the cross-examination of the victim is yet to take place.  Before that stage, it is not incumbent upon a channel to present views discrediting the victim, especially so when the entire set of evidence is not available in public domain.

The high-voltage debate accompanied by its mass propaganda through social media has the potential to sway the minds of unsuspecting viewers, who may not be well versed with court procedures. Justice Cardozo, one of the great Judges of American Supreme Court in his "Nature of the Judicial Process" observed that the judges are subconsciously influenced by several forces.  The parallel trial held by the channel on the basis of piecemeal evidence has skewed public perception of the case, and this could act as an unwarranted external pressure to the judicial process. Thus, this is a clear case of prejudicing judicial process and interfering with the administration of justice, which are grounds for initiating criminal contempt action under the Contempt of Courts Act 1971.

Need to draw lines.

“The newly recognized fundamental right to privacy, which takes within its fold the right to protect ones reputation as well, would merit classification as a fundamental right that protects an individual, not against the arbitrary State action, but also from the actions of other private citizens, such as the press or media”, observed the Kerala High Court in the solar scam case against former Kerala CM Oommen Chandy, where the Court had initially gagged the media from publishing contents of the Solar Commission Report. The observations were based on the Supreme Court decision in Justice Puttuswamy v. Union of India, which declared right to privacy a fundamental right.

The parallel trial by channel carried out without regard to fairness, and without opportunity to the affected persons, has infringed the right to privacy of both the accused and the victim.  The panelists were speaking without any authority to represent the affected persons, and they have inflicted irreversible damage with their unabashed mudslinging. On this, Advocate Rebecca Mamen John commented in Facebook as :-

Not a single lawyer who appeared on the Times Now channel last night discussing the merits of a footage from an ongoing rape trial , spoke out against the gross illegality of playing and replaying it . There is a court order prohibiting viewing of the footage . Many of the participants discredited the victim and made outrageous claims . Shame on all of you .

This also provides occasion for the media to introspect about the boundaries to be maintained while discussing pending criminal trials.  Media intervention in cases like Jessica Lall case, BMW hit and run case etc are often projected to support “media trial”. But those cases had some glaring instances of investigative lapses and attempts to subvert trial, which would not have got corrected but for media activism. But here in “Tejpal Tapes”, there was no such redeeming element of overriding public interest.  Apart from that, there was no journalistic relevance too, as there was no occasion for making such an untimely debate at this juncture on an ongoing trial.  From the timing of the debate, one cannot help wondering whether it was a ploy to deflect attention from the questions raised on the credibility of the channel in view of the Cobrapost expose.

(The online video links of the debate has been since taken down from the official website of Times Now and its YouTube channel, presumably due to fear of legal sanctions)

Published in Live Law and The Wire on 31.05.2018

JUSTICE CHELAMESWAR : THE LEGACY OF A CONTRARIAN IN THE COURT

Reminiscing Justice Jasti Chelameswar on his retirement.

“I am something of a contrarian, I suppose. I feel less comfortable when everybody agrees with me. I say, 'I better re-examine my position!' I probably believe that the worst opinions in my court have been unanimous. Because there's nobody on the other side pointing out all the flaws”- so said the maverick judge of US Supreme Court Justice Anton Scalia. In the Indian context, this description might best suit Justice Jasti Chelameswar, who had his last working day as a Supreme Court Judge on May 18       ( though his official date of retirement is June 22, it falls in between the Court’s summer recess).

In the mainstream media narrative, he is the “dissenting voice of Supreme Court”, “the rebel judge”, “chief dissenting justice”, “whistleblower” etc. This popular image is possibly formed by his famous but lone dissent in the historic NJAC judgment, his open criticism of the manner of the functioning of the collegium system and most importantly his radical act of leading the judges’ press conference on January 12 regarding the issues in the administration of Supreme Court.  This could have been the reason why Advocate Shanti Bhushan likened him to Justice H. R Khanna in a heartfelt farewell speech on his last working day.

NJAC Dissent

The most notable verdict of Justice Chelameswar is his lone dissent in the NJAC judgement. While the other four judges in the Constitution Bench invalidated the Constitutional Amendment brought to replace the collegium with the National Judicial Appointments Commission, Justice Chelameswar struck a dissenting note to uphold it. He dissented from the conventional wisdom that any sort of executive role in judicial appointment will compromise judicial independence. He held that primacy of the judiciary over executive in the matter of appointments is not a part of basic feature of the Constitution. It was also held that to diminish the role of the executive in judicial selection was not suited for a democratic society. Striking a discordant note with the widely spun narrative of judiciary being the sole protector of civil liberties, he observed : To assume or assert that judiciary alone is concerned with the preservation of liberties and does that job well, is an assumption that is dogmatic, bereft of evidentiary basis and historically disproved. The point sought to be highlighted was that judiciary is not the only constitutional organ which protects liberties of the people, and the demonization of the executive in the popular imagination was without basis.

The emphasis of Chelameswar was more on creating a transparent and fair system, rather than keeping out the executive from the selection process. He termed the collegium as “euphemism for nepotism”.  “We the members of the judiciary exult and frolic in our emancipation from the other two organs of the State. But have we developed an alternate constitutional morality to emancipate us from the theory of checks and balances, robust enough to keep us in control from abusing such independence?”- he remarked. He also wanted more participation of the members of the civil society in the selection process. According to him, the fiascos of collegium appointments would justify the participation of the members of the civil society in the process to eliminate from the selection process the maladies involved in the process. This was in contrast to the majority opinion, mainly expressed through Justice Khehar, which infantilized the civil society as immature.   

Chelameswar’s demand for transparency in the process found resonance in his action after he became a member of SC collegium.  He refused to attend the collegium’s meetings, as long as its deliberations were kept under wraps. In a letter to then CJI he wrote : “It is the law of this land that no meeting can be convened without a proper notice and an agenda, be it a meeting of a panchayat board or a cooperative society or a company or other bodies, statutory or constitutional. If you (Justice Khehar) believed these collegium meetings are beyond all principles of law propounded by their court, God save the Country. If these discussions across the coffee table are to be treated by you as meetings of collegium where important decisions in discharge of the obligations arising from the Constitution are to be taken, I feel sad for this country. But I am of the hat such a procedure falls short of the legal requirements of a meeting. I believe collegium meetings are too solemn events to be conducted so casually.”.

The decision of subsequent CJI Dipak Misra to publicise the minutes of collegium meeting could be a result of the relentless protestations of Chelameswar.

Civil Liberties.

Justice Chelameswar was part of the bench which struck down Section 66A of the IT Act in the historic Shreya Singhal case.  The judgment authored by his brother judge Justice R.F Nariman termed the provision as creating a chilling effect on the freedom of speech and expression.  One of the first orders in the Aadhaar case holding that concessions & benefits cannot be denied for not having aadhaar card was pronounced by a three member bench presided over by Chelameswar.( Justice K.S Puttuswamy (Retd) v. Union of India (2015) 8 SCC 735).  In the privacy case, he observed :- what you eat or wear is nobody ‘s business and amounts to intrusion into your privacy rights”. He discussed the privacy of ‘repose, sanctuary, and intimate decision’.

One area which was close to the heart of Justice Chelameswar was disability rights. While being a judge of the High Court of Andhra Pradesh, and later the Chief Justice of Gauhati High Court and Kerala High Court, he has authored several judgements advancing the causes of persons with disabilities. In Rajeev Kumar Gupta v. Union of India (2016) 13 SCC 153, the judgment authored by him expanded the scope of disability rights by holding that persons with disabilities were entitled to reservation even in posts where recruitment is through promotion.

Prasad Education case and subsequent drama

November 10 will be an unforgettable day in the Indian judicial history, where an unprecedented controversy erupted in the Court. On the previous day, a petition seeking Court monitored investigation into the bribery allegations pertaining to Prasad Education Trust case was mentioned before the bench headed by him. Since the bribery allegations were with regard to a case disposed of a bench led by the CJI, the mentioning was made before the bench headed by Justice Chelameswar, the second senior judge. Terming the allegations as “grave and serious”, the matter was referred to be decided by a bench constituted by five senior most judges excluding the CJI. On November 10, the very next day, this order passed by the two member bench headed by Justice Chelameswar was annulled by a hurriedly constituted constitution bench led by CJI, in a raucous hearing session marred by unprecedented drama.

Many in the legal field feel that these events acted as a catalyst for the press conference of Justices Chelameswar, Gogoi, Lokur and Kurian Joseph on January 12. Justice Chelameswar himself described it as an "extraordinary event". During the news conference he said "sometimes administration of the Supreme Court is not in order and many things which are less than desirable have happened in the last few months." Justice Chelameswar said "we owe a responsibility to the institution and the nation. Our efforts have failed in convincing CJI to take steps to protect the institution." “Wise men should not say in future that we sold our souls." He remarked during the press meet.

The press conference highlighted before the general public for the first time the issues regarding allocation of cases. In the letter by four judges, it was stated as follows:

There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.

Later in March 2018, he issued a letter to the CJI, protesting the manner in which the Central Government was making interference with the appointment of a judge to Karnataka High Court.  He took strong objection to the manner in which the Central Government issued recommendations to the Karnataka HC, bypassing SC Collegium. Condemning such practice of the Centre directly communicating with the High Courts, he asserted that “bonhomie” between the Judiciary and the Government “sounds the death knell to Democracy”

Equally noteworthy is his interview given to Karan Thappar during April 2018. Very circumspect so as not to breach limits of propriety, he opened his mind in the interview regarding the pressing issues faced by judiciary. The public conversation between him and Thappar an articulate journalist, well-known for his incisive questions, was highly engaging and delightful.

He held the firm belief that judges should have strength of character above all other qualities like learning in law, incisive and alert mind to quickly grasp the controversy, energy and commitment to resolve the problem etc.  His following observations in the NJAC case are quite relevant :

There are various factors which make a Judge pliable. Some of the factors are - individual ambition, loyalty - based on political, religious or sectarian considerations, incompetence and lack of integrity. Any one of the abovementioned factors is sufficient to make a Judge pliable. A combination of more than one of them makes a Judge more vulnerable. Combination of incompetence and ambition is the worst. The only way an ambitious incompetent person can ascend a high public office is by cringing before men in power. It is said that men in power promote the least of mankind with a fond hope that those who lack any accomplishment would be grateful to their benefactor. History is replete with examples - though proof of the expected loyalty is very scarce. Usually such men are only loyal to power but not to the benefactor.

 These words underline his positive self-image and sense of self-worth, and also his utter disdain for those who bow before power for crumbs of benefits.

One thing can be said about him for certain- that he is not a stickler of the status-quo, and that he will not shy away from doing the right thing according to him, regardless of the constraints of convention and judgment of public opinion. His unconventional methods have earned him bouquets and brickbats, and he seems to be unmoved by both. Perhaps, he might have imbibed the sense of indifference and equilibrium advocated by Bhagagavad Gita. This could be the reason why the former CJI Ventkatachaliah described him as the sanyasi in the Court. A sanyasi is one who works for the sublimation of soul detached from worldly rewards.  Perhaps, the ex-CJI intended that Chelameswar was endeavouring for the betterment of justice delivery system, without any desire for benefits to himself.  The legend of Prometheus, the Greek mythological character who invited the wrath of gods for giving the fire of enlightenment to humans emerge as a striking parallel to the course of journey of Justice Jasti Chelameswar.

Published in Live Law on 18.05.18

PUTTING THE CART BEFORE THE HORSE : WHEN RS CHAIRMAN REJECTED IMPEACHMENT MOTION AGAINST CJI FOR NOT PROVING ALLEGATIONS.

“Inquiry : A formal investigation into facts.

Investigation :  Systematic collection of evidence to discover and examine facts to establish truth.

(Webster’s dictionary)”

 We know that we are living in post-truth world when prayers for investigation or inquiry are thrown out summarily at the threshold by constitutional functionaries stating that the allegations are not proved, conveniently ignoring that inquiry/investigation is sought to apply the specialized tools and agencies at the disposal of State to discover facts to justify or falsify the allegations.   Such instances force one to redefine ‘inquiry’ and ‘investigation’, deviating from its commonly understood meanings.

The order passed by the Chairman of Rajya Sabha Venkaiah Naidu rejecting the impeachment motion moved against Chief Justice of India, though not surprising, is confounding because of its asymmetrical reasons. Asymmetrical - because the reasons are either upside-down (allegations are not proved, so no inquiry), or circular (like placing reference on a judgment passed by CJI-led bench in a case, which was alleged to have been improperly dealt with by the CJI, so as to justify CJI)

Flawed test of “proved misbehaviour”.

The premise of the rejection order is that the draft motion failed to establish “proved misbehaviour” on the part of CJI.  The ‘test’ applied by the RS Chairman, as clear from paragraph 5 of the Order is as follows :-

“At the stage of admission I have to apply a test that if every statement stated in the petition is believed to be true, would it still amount to a case of “proved misbehaviour” within the scope of Article 124(4) of the Constitution of India.”

Further, in paragraph 10, it is stated as follows:

“Proved misbehaviour” is an expression clearly distinguishable from ‘misconduct’ as is apparent from the language of Article 124(4). The intent, gravity and onus are of a much higher degree. The prefix ‘proved’ places an obligation of actually proving the misbehaviour before the parliamentary procedure can come into play. (in Re:Meher Singh Saini (2010) 13 SCC 586) (emphasis supplied)

The motion was rejected because of its failure to meet the ‘test’ employed by the Chairman of bringing out “proved misbehaviour”.

This ‘test’ employed by the Chairman is fundamentally flawed. ‘Proved misbehaviour’ is a term in Article 124(4) of the Constitution of India, which states that a Judge of the Supreme Court can be removed from office only by an order of the President on ground of ‘proved misbehaviour’ or ‘incapacity’. For the President to order removal, the impeachment motion should be supported by two-third majority of both the houses of Parliament present and voting. The stage for such proceedings had not reached in the instant case. The RS Chairman committed a grave error by leapfrogging to Article 124(4), oblivious of his role and mandate.

As per Article 124(5), Parliament can enact law to regulate the procedure for “investigation and proof of misbehaviour or incapacity of a Judge”.  Judges (Inquiry) Act, 1968 is the law enacted as per Article 124(5).  The RS Chairman is merely a statutory authority under Judges (Inquiry) Act. As per Section 3, if a motion for impeachment is endorsed by at least 50 members of the Rajya Sabha, then the role of Chairman begins, and he has to decide whether to admit the motion or reject it. The Judges (Inquiry) Act does not have any test of “proved misbehaviour”. The Act is intended only to regulate the procedure for investigation and proof of misbehaviour or incapacity of a Judge, going by its preamble. The Judges(Inquiry) Act is therefore largely ‘procedural’ and the RS Chairman is only a statutory authority who has to act within the contours of the procedural legislation. Hence, the role of RS Chairman is very limited, and he cannot sit in judgment over the merits of the allegations.    

 The Chairman’s role is limited to making a preliminary scrutiny of the complaint to see if there is a prima facie case to refer it to the Committee for investigation. The actual ‘investigation’ is to be carried out by the Committee constituted under the Act, and the actual decision regarding impeachment has to be taken by the Parliament based on the findings returned by the Committee. That being the scheme of Article 124(4) of the Constitution of India and the Act enacted as per 124(5), the Chairman, acting as a delegate under the Act, cannot import the test of “proved misbehaviour” while deciding whether to admit the motion.  The test of “proved misbehaviour” is reserved for use of the President at the stage of proceedings under Article 124(4) for deciding whether to remove the Judge from office.  It is not for the Chairman to apply this test while acting under the Judges (Inquiry) Act.

Hence, the Chairman misdirected himself by employing a ‘test’ which is totally alien to the proceedings under the Judges (Inquiry) Act.  The reference made to the decision in Re: Meher Singh Saini (2010) 13 SCC 586 is out of context. That was a decision regarding removal of members from the State Public Service Commission, and the passing remarks made there have no relevance here. The Chairman put the cart before the horse by burdening the Members with “actually proving the misbehaviour” for admission of motion.

Further, on the basis of use of tentative phrases in the draft motion like “CJI may have been involved in conspiracy of paying illegal gratification”, the Chairman held that the members who signed the motion were “unsure of their own case”.  This sort of picking holes from the tone of language used in the motion is too frivolous a rebuttal, least expected from Chairman RS who is holding a high constitutional post.  The Members can only bring out the cloud of suspicious circumstances enveloping the office of CJI, which warrant inquiry. They cannot state with certitude that CJI is guilty of misbehaviour. That is for the Committee under the Judges (Inquiry) Act to investigate.  

Whether internal matters of Court beyond the scope of inquiry.

The Chairman summarily shot down other allegations against CJI - regarding arbitrary use of power as the ‘Master of the Roster’ to assign cases to benches, and also regarding alleged forgery done by ante-dating an administrative order -  by stating that those were “internal matters to be resolved by the Court”. To buttress the rejection order, reference was made to the decision of CJI-led bench in Kamini Jaiswal v. Union of India  which stated that CJI is the ‘master of the roster’. Curiously, the manner in which CJI dealt with Kamini Jaiswal case, which had sought for independent investigation into the allegations of Prasad Education Trust bribery case, was the subject-matter of second allegation in the draft motion. The rejection order does not specifically address these allegations, except by foreclosing them by stating they were internal matters of court.

The Act does not bar inquiry into “internal matters” of Court. When judicial conduct is subjected to inquiry, it will necessarily take in “internal matters of Court” under its sweep. The rejection order sets a bad precedent, because any suspicious judicial conduct could be shielded on this ground. Further, the grievances regarding arbitrary allotment of cases had emerged from within the judiciary itself, as clear from the letter written by four senior judges of SC collegium, which was made public when they held the press conference on January 12.  In the letter by four judges, it was stated as follows:

There have been instances where case having far-reaching consequences for the Nation and the institution had been assigned by the Chief Justice of this Court selectively to the benches “of their preference” without any rationale basis for such assignment. This must be guarded against at all costs.

Contrary to past precedents.

The reasoning of rejection order is not in accordance with the settled precedents of previous RS Chairpersons admitting impeachment motions without sitting on judgment on the merits of allegations. The recent examples are the impeachment motions which were moved against P.D Dinakaran, ex-judge of High Court of Karnataka  and Soumitra Sen, ex-judge of Calcutta High Court. The impeachment motion against P.D Dinakaran was spearheaded by Arun Jaitley, the present Union Finance Minister. In both instances, Hamid Ansari, who was the then Rajya Sabha Chairman, admitted the motion without going beyond preliminary examination.

Although the Chairman cannot act like a ‘post-office’ mechanically forwarding any motion for impeachment to the Committee, the role cannot be stretched too wide to sit in judgment over the merits of the motion.  What the Chairman should ideally do is to act as a filter to examine if the motion has any prima-facie material, and whether it is motivated by mala fide intentions. It is pertinent to note that the Chairman has no case that the impeachment motion is actuated by any ‘mala fides’.   Here the Chairman exceeded his role, and usurped the function of Committee, and invoked the test of “proved misbehaviour” contained in Article 124(4), even before the motion had reached that stage. By setting the bench-mark too high for the motion with the artificial test of “proved misbehaviour”, the Chairman did not let the motion see the light of the day, forestalling a parliamentary process.

Anyhow, more unprecedented events will unfold if the rejection gets challenged in Court. The decision of Chairman cannot be regarded as part of a parliamentary procedure, as it was made in the capacity of a statutory authority under the Judges (Inquiry) Act. Therefore, the decision is certainly justiciable. Anyhow, by aborting the impeachment motion, a permanent cloud has been created over the office of CJI.  The well-wishers of Indian judiciary would have wished to see the office of CJI emerging unscathed in the agni pareeksha of inquiry proceedings. That would have enhanced the prestige of institution manifold.

Published in Live Law on 30.04.2017