239681658-zahira-habibullah-sheikh-anr-vs-state-of-gujarat-ors.pdf

DP - RIGHTS

October - 06

RB20

THE LAWYERS COLLECTIVE, 01 OCT 2006

THE ZAHIRA CONTEMPT CASE TOWARDS A LEGAL CRITIQUE The eminent jurist, Professor Upendra Baxi, subjects the Supreme Court judgment in the Zahira Sheikh contempt case to examination by his Constitutionally well-honed legal eye and finds it wanting in many respects. This eloquent essay is a must read for lawyers and laymen alike. he only thing that is clear about the decision in Zahira Habibullah Sheikh and Another v. State of Gujarat and Others' is that the Supreme Court of India finds Zahira guilty of such contumacious conduct as to order a year's imprisonment with a fine of Rupees 50,000 and further a default sentence. Her assets including bank deposits stand attached for three months and the relevant income tax office is asked to 'take a decision' whether the attachment may continue 'in accordance with the law.'

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The decision raises three pertinent issues: Did Zahira commit a contempt of court? Where does one precisely locate the power in the Supreme Court to punish her thus for the contempt? Was the sentence awarded just and proper in the circumstances of the case? With great respect to the Honourable Court, it has to be said that the judgement does not proceed to give clear answers to any of these questions.

II Did Zahira commit contempt of court? On the first question, the Court refers to a contempt petition alleging that Zahira's press statement (or statement reported in the press) amounted to contempt of court. Apparently, the gravamen here is that she gave different versions concerning the statements she made before the trial court in Gujarat, and subsequently 'disowned' the statement made in this Court and before bodies like the National Human Rights Commission. People who do not have access to judicial documentation (called the 'paperbook') do not know the nature of the contempt petition - that is, the relevant provisions of

the Contempt of Courts Act justifying the petition, the specific grounds, and prior judicial precedents invoked etc. Ordinarily, the Supreme Court in most cases cites the facts and allegations and their rebuttal in detail before proceeding to the judgement. This is unfortunately not the case here and we have no access to facts and the grounds of the contempt proceedings. In order to determine whether the 'press statement' constituted contumacious conduct, the learned Court follows an unusual procedure, indeed for the first time in contempt jurisdiction. It directs its Registrar General to report to it which of Zahira's statements may after all be 'a truthful version.' The issue thus broadens from a specific alleged contumacious statement to an entire alleged history of contumacious conduct. The enquiry itself was also unusual because the Court declined to prescribe even 'broad guidelines as modalities which the Registrar General will adopt' in collecting evidence, summoning witnesses, and in seeking cooperation by the investigating authority.2 The background assumption was of course that such an enquiry conducted under the auspices of the Supreme Court of India and by one of its key officials was unlikely to fail standards of fairness. However, the conduct of the enquiry was contested by Zahira's counsel on the grounds of its manifest unfairness. Two main flaws were urged before the Court: first, the scope for 'crossexamination' was not given and second the request to call the Chairperson of National Human Rights Commission as a witness 'was turned down without [giving] reasons.' Both these pleas were rather summarily dismissed. The flaw concerning cross-examination was found 'really of no consequence,' because "What questions

Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors. MANU/SC/1344/2006; 2006(3)SCALE104, (2006)3SCC374. For the present purposes, by way of juridical history, a reference to an earlier decision, Zahira Habibullah Sheikh and Anr. v. State of Gujarat and Ors. MANU/SC/ 0322/2004 , should suffice.

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in 'cross-examination' by the learned counsel could have of the process of enquiry but of its legality and been put, were asked by the Inquiry Officer, whenever constitutionality. Transparency, while constituting a any suggestion was made in this regard. If a party did necessary condition, provides no sufficient condition of "suggest any question to the Inquiry Officer, it is not open legality and constitutionality of the findings of the to him or her to say that opportunity for 'cross- enquiry. Put another way, what is at issue is not the examination' was not given." good faith or conscientiousness of the Registrar-General Concerning the second plea, all we receive in the Court's or the clarity of his report but the issue whether any response is the argument of authority. The Court rejects basic due process rights at stake were indeed bypassed it summarily by saying that summoning the Chairperson or violated. of National Human Rights Commission would reflect All this acquires an edge of poignancy because Zahira's on 'the credibility' of its 'functionaries,' among them a lawyers resting their case insisted that that the report retired Chief Justice of India and a retired Justice of be 'not accepted' because of the flaws and that accordingly the Supreme Court. The raising of the issue concerning they had nothing to say concerning any 'consequential the accuracy of recording Zahira's statement by the orders' imposing any order of punishment. In a sense, Commission thus stands foreclosed. The alternative of this constituted the best exemplarity of constitutional leading evidence in commission was not at all considered, lawyering, one which contested the due process vice of the entire enquiry. At the same time, this strategic even in a situation where act of lawyering ruefully the discovery of truth of exposed Zahira to the final her averments remained a fateful result. In the final cardinal issue. result, pegging all their The stance concerning hopes on the Court, itself 'cross-examination' following its past and proud remains, to say the least, jurisprudence concerning curious coming from the minimal due process and highest court in the land. fairness, failed to obtain 'Cross-examination' is a any just outcome for term of art, not by any Zahira. means a lay expression. The principle underlying it is that truth is best elicited III by its unhindered practice "the only direction the Honourable Court has to The small fry get of interrogation, though issue concerning Madhu Srivastava (in white in caught, the big • held of course within the above photo) and Bhutto Srivastava, alleged to have discipline of the Indian fish get away intimidated/ 'corrupted' Zahira testimony is that the Evidence Act. Indirect As an Enquiry Officer, the Income Tax department may proceed against them cross-examination via Registrar General does find in their discretion on one or two counts." making 'suggestions' to the that 'Zahira had changed enquiring authority, which retains the discretion to her stand at different stages and has departed from the frame the question as it likes, is not a method or concept statements made before this Court.' The Court also thus far known to Indian law, especially when in the endorses the finding that 'money has changed hands' and end result serious criminal conviction and punishment that was the 'main inducement responsible which made result. Ms. Zahira to change her statements although the element of threat could not be ruled out.' Overall, The Supreme Court's insistence that the enquiry bereft comparing blandishments with threats, it proceeds to of an opportunity for cross-examination and nonhold that 'money played a vital role.' There the story, summoning of relevant witnesses was transparent and more or less, ends because the learned Justices issue fair raises questions concerning whether the Court itself remained here entirely mindful of its own constitutional no directives for criminal investigation cornering the solicitude for the normative standards specifying varieties of impermissible and unconstitutional force component rights of life and liberty under Article 21 and fraud perpetrated by some important regional of the Indian Constitution. The Supreme Court of India, coercive political actors. with and since the Maneka Gandhi Case, has insisted To be fair, their Lordships fully recognize that 'fair trial' on the full observance of the 'due process of law.' The crucibles may be fully vitiated and betrayed if 'the Court's holding that 'the procedure adopted was quite witnesses get threatened or are forced to give false transparent' does not meet at the threshold the strict evidence...' Their Lordships even quote Jonathan Swift constitutional scrutiny necessitated by its own finely- with a telling effect: 'Laws are like cobwebs, which may honed jurisprudence of Article 21. catch small flies but let wasps and hornets break* The issue surely is not the consideration of transparency through.' I hope that a statement which avers that this

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is what precisely happens here will not evoke the Court's newly instituted contempt jurisprudence! I say this because the Court almost takes judicial notice of the fact that 'the reluctance shown by witnesses to depose against people with muscle power, money power or political power...has become the order of the day.' Yet the only direction the Honourable Court has to issue concerning Madhu Srivastava and Bhatto Srivastava, alleged to have intimidated/ 'corrupted' Zahira's testimony is that the Income Tax Department may proceed against them in their discretion on one or two counts. A nonJudge citizen lacks the means and the power to comment any further and remains also exposed to various proceedings even by such a mention; hence, I must make it fully clear that my reference to these personages does not attribute to them any liability, the entire point here being that the Court may have opted for a more effective pursuit of the due process imbued ordering of investigation of truth or otherwise of these allegations, given its own remarks concerning 'muscle,' 'money,' and 'political' power.

IV Combating perjury via contempt The mood in which these serious findings are to be received is fully indicated by the perambulatory judicial invocation of the sacred Manu Samhita languages concerning the role of 'witnesses.' Verse (stanza) 14 speaks about the process of destruction of the judiciary 'by sin' when 'truth' is 'overcome' by 'unfounded falsehood' and Verse 18 speaks of the 'adharma following from 'wrong' judicial decision, the responsibility for which has to be divided equally among the perpetrator of adharma, 'witness, the judges, and the ruler.' Leaving aside any exegetical issues,3 the constitutional propriety of this invocation remains open to question in the background of communal massacre within which the Zahira Case reaches the apex Court. The elaborate judicial discourse seems to rest on a surer foundation when it moves to the secular rhetoric of

administration of criminal justice. In an elegant statement, the Court reminds us that "...the role played by Courts, witnesses, investigating officers, public prosecutors has to be focussed, more particularly when eyebrows are raised about their roles." The Court suggests that 'eyebrows' may thus be raised if the 'object underlying' Section 311 of the Criminal Procedure Code is judicially read as being 'limited only for the benefit of the accused.' The object of the section stands further construed in terms of bringing 'on record evidence not only from the point of the view of the accused but also from the point of view of the orderly society.' This further means that that 'the discovery, vindication, and establishment of truth are the main purposes underlying the existence of the Courts of justice,' thus further entailing a 'familiar triangulation of interests of the accused, the victim and society 'in which the interests of society are not be treated completely with disdain and as persona non grata.' All this stands further followed by a long and interesting disquisition concerning the notion of fair trial and need for witness protection programs by way of serious law reform. These vast prefatory justifications constitute finally the 'aforesaid background' which serves to sustain the operative order of sentence for Zahira. The issue of contempt gets uneasily transported into the protean languages of the integrity of constitutional criminal justice administration. Prescinding this, some technical issues remain intransigent. First, may the Apex Court at all proceed to reinforce the law against perjury via the contempt law? It remains an open question whether the most efficient course for combating perjury is best provided via contempt proceedings. Second, in this context, it remains worthwhile to note that the perjury proceedings in the trial court result only in three months punishment for Zahira (as far as I can now ascertain) as against a year long prison sentence for contempt. Third, one may respectfully ask: what grounds for punishment for contumacious conduct stand here invoked? A pregnant observation suggests a redefinition of the extant contempt jurisprudence when the Court

3 There arise many issues here. First, the verses put together do not merely address the role of witnesses in the administration of justice. Second, the expression 'unfounded falsehood' in Verse 14 makes allowance for differentiation between deliberate falsehood as opposed to that 'founded' by circumstance of coercion. Third, whereas Verse 14 speaks of destruction of judges by 'sin' of falsehood, the consequences of a 'wrong decision in a Court of law' stand articulated less severely by Verse 18. Moral or spiritual responsibility for a wrong decision is to be attributed to all in equal proportion, and not entirely on an erring or sinful (adharmic) witness. Fourth, the issue of punishment for adharmic and even sinful falsehoods is not at all addressed by the Verse here cited. But the implication of Verse 14 seems clear enough. What destroys the place/seat of justice is adharmic sin committed in the presence of Judges whereas the consequences of adharma flowing from a 'wrong' judicial decision remain described in far less apocalyptic terms. Manu- Samhita carefully grades the order of adharmic sins and calibrates various cosmic (life-cycle) punishments. Clearly, even as embellishments setting the tone and tenor for the Zahira decision, this invocation perplexes. The Justices obviously need some detailed research assistance from Pundits on this score. Alas! Such dedication of state revenues remain unavailable as infringing standards and ideals of constitutional secularism pronounced by the authoritative decisions of the Supreme Court of India itself!

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fully equates 'contempt' with the 'deflection' of the 'course of justice by unacceptable methods,' as if there may be said to exist any 'acceptable methods!'

Seeking the constitutional anchor for punishing Zahira The sentence finally awarded to Zahira needs to be resituated in the light of the foregoing considerations. It remains all through guided by the judicial assertion that there 'should not be any undue anxiety to only protect the interest of the accused.' The expression 'interest' remains rather anaemic when compared with constitutional languages of the basic human rights of the accused! These may not be wholly conflated, as the Court now says, with the coequal importance of the 'public interest in the administration of justice' as marshalling 'as much, if not more, importance' than the 'interest of the accused.'What may this judicial prose after all suggest? The Court's inimitable prose suggests that judicial decisionmaking must somehow 'balance' considerations regarding 'public interest in the proper administration of justice' over the constitutional rights of the accused. If so, one may well ask whether the languages of constitutional rights serve any or no 'public interest?' The learned Justices acknowledge that there exists no Parliamentary authority which prescribes the 'extent of authority' for awarding punishment for the contempt of the Supreme Court. At the same moment, their Lordship's observations suggest that Section 15 of the 1971 Contempt of Court Act prescribes a mandatory procedure for the Court. This then raises the issue whether this procedure was at all fully followed in this case. Ex facie, this does not at all seem to be the case, a consideration not irrelevant to the punishment finally awarded to Zahira. Where may one ask, then, does the Supreme Court of India find a constitutional anchor for the harsh punishment thus awarded to Zahira? An answer may lie in the doctrine of 'inherent powers' of the Court; it may further lie in the power to 'complete justice' under Article 142 of the Constitution. Both these represent rather awesomely complex jurisdictional territories of thought, which I may not here unravel. Yet, the issue raised under either head of power concerns the structured limits of this power. Does this so far extend to empower the Supreme Court of India to legislate the definitions of both crime and punishment under the jurisdiction of contempt power? In a democratic constitutionalism, definitions of crime and punishment belong to the legislative realm and any authoritative talk concerning the inherent powers of the Court ought to remain subject at the very least some due process constitutional discipline.

Outside, perhaps, contempt on the face of the Court, powers of punishment for contempt in any event ought to be legislatively defined. In the interim, democratic citizen-justices also ought to deploy the inherent powers and the power to complete justice with due constitutional care and circumspection, given their own insistence, as in this case, on the constitutional essentials of a fair trial. They ought to contemplate in full constitutional sobriety how the Zahira punishment may induce a chilling testimonial effect on surviving witnesses in meagre potential for redressing through the law and the constitution the traumatised Gujarat 2002 genocide citizens. Sending the survivor victims to India's colonial prison houses for 'contumacious' conduct may serve the ends of justice provided the sentence awarded is not disproportionate to the 'perfect crime' of power which is not accomplished by the 'killing of... witnesses' '...but rather in obtaining the silence of the witness, the deafness of the judges, and the inconsistency (insanity) of testimony. You neutralize the addresser, the addressee, and the sense of testimony' then everything is as is as if there was no referent (no damages.)' 4 In this way is added then '...to the privation of constituted by damage ...the impossibility of bringing to the knowledge of others, and in particular to the knowledge of the tribunal.'5 It is on this terrain that the truth produced by tribunary/ judicial 'reason' collides with the 'unreason' of social and human rights movements that protest the law and jurisprudence of the Zahira decision. As now happens, the best bet in the concrete circumstance remains constituted by the 'petitioner' forms of activist struggle. Some concerned citizens have already filed petitions with the President of India for clemency/ remission on behalf of Zahira. In the long haul, however, the democratic agendum must contest the reservoir of sovereign power of the Supreme Court to punish, at will and without adequate public reason, whomever it may, from time to time, so do with such fierce plenitude.

Professor Upendra Baxi, served as Professor of Law, University of Delhi (1973-1996) and as its Vice Chancellor (1990-1994.) He as also served as: Vice Chancellor, University of South Gujarat, Surat (19821985); Honorary Director (Research) The Indian Law Institute (1985-1988.) He was the President of the Indian Society of International Law (1992-1995.) He is currently (since 1996) Professor of Law in Development, University of Warwick, UK.

Upendra Baxi LR1 The Lawyers Collective 01/10/2006 L53a <entrydt>09/11/2006 <sd>VD

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