The document summarizes and critiques the Supreme Court of India's judgment in the Zahira Sheikh contempt case. It raises questions about whether Zahira truly committed contempt and whether the process followed to determine this was fair and complied with principles of natural justice. Specifically, it argues the inquiry conducted lacked cross-examination of witnesses and fairness. It also questions why the court did not investigate threats and inducements faced by Zahira from political actors, even though these were found to have influenced her statements. Overall, the document critiques whether the court's judgment and process was in line with its own standards of protecting due process rights under the Indian constitution.
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Zahira Habibullah Sheikh & Anr vs State Of Gujarat & Ors
The document summarizes and critiques the Supreme Court of India's judgment in the Zahira Sheikh contempt case. It raises questions about whether Zahira truly committed contempt and whether the process followed to determine this was fair and complied with principles of natural justice. Specifically, it argues the inquiry conducted lacked cross-examination of witnesses and fairness. It also questions why the court did not investigate threats and inducements faced by Zahira from political actors, even though these were found to have influenced her statements. Overall, the document critiques whether the court's judgment and process was in line with its own standards of protecting due process rights under the Indian constitution.
The document summarizes and critiques the Supreme Court of India's judgment in the Zahira Sheikh contempt case. It raises questions about whether Zahira truly committed contempt and whether the process followed to determine this was fair and complied with principles of natural justice. Specifically, it argues the inquiry conducted lacked cross-examination of witnesses and fairness. It also questions why the court did not investigate threats and inducements faced by Zahira from political actors, even though these were found to have influenced her statements. Overall, the document critiques whether the court's judgment and process was in line with its own standards of protecting due process rights under the Indian constitution.
THE LAWYERS COLLECTIVE, 01 OCT 2006 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. T 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.' 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 'cross- examination' 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. DP - RIGHTS October - 06 RB20 1/4 Judicial System in 'cross-examination' by the learned counsel could have been put, were asked by the Inquiry Officer, whenever any suggestion was made in this regard. If a party did "suggest any question to the Inquiry Officer, it is not open to him or her to say that opportunity for 'cross- examination' was not given." Concerning the second plea, all we receive in the Court's response is the argument of authority. The Court rejects it summarily by saying that summoning the Chairperson of National Human Rights Commission would reflect on 'the credibility' of its 'functionaries,' among them a retired Chief Justice of India and a retired Justice of the Supreme Court. The raising of the issue concerning the accuracy of recording Zahira's statement by the Commission thus stands foreclosed. The alternative of leading evidence in commission was not at all considered, even in a situation where the discovery of truth of her averments remained a cardinal issue. The stance concerning ' c r o s s - e x a mi n a t i o n ' remains, to say the least, curious coming from the highest court in the land. 'Cross-examination' is a term of art, not by any means a lay expression. The principle underlying it is that truth is best elicited by its unhindered practice of interrogation, though held of course within the discipline of the Indian Evidence Act. Indirect cross-examination via making 'suggestions' to the enquiring authority, which retains the discretion to frame the question as it likes, is not a method or concept thus far known to Indian law, especially when in the end result serious criminal conviction and punishment result. The Supreme Court's insistence that the enquiry bereft of an opportunity for cross-examination and non- summoning of relevant witnesses was transparent and fair raises questions concerning whether the Court itself remained here entirely mindful of its own constitutional solicitude for the normative standards specifying component rights of life and liberty under Article 21 of the Indian Constitution. The Supreme Court of India, with and since the Maneka Gandhi Case, has insisted on the full observance of the 'due process of law.' The Court's holding that 'the procedure adopted was quite transparent' does not meet at the threshold the strict constitutional scrutiny necessitated by its own finely- honed jurisprudence of Article 21. The issue surely is not the consideration of transparency of the process of enquiry but of its legality and constitutionality. Transparency, while constituting a necessary condition, provides no sufficient condition of legality and constitutionality of the findings of the enquiry. Put another way, what is at issue is not the good faith or conscientiousness of the Registrar-General or the clarity of his report but the issue whether any basic due process rights at stake were indeed bypassed or violated. All this acquires an edge of poignancy because Zahira's lawyers resting their case insisted that that the report be 'not accepted' because of the flaws and that accordingly they had nothing to say concerning any 'consequential orders' imposing any order of punishment. In a sense, this constituted the best exemplarity of constitutional lawyering, one which contested the due process vice of the entire enquiry. At the same time, this strategic act of lawyering ruefully exposed Zahira to the final fateful result. In the final result, pegging all their hopes on the Court, itself following its past and proud jurisprudence concerning minimal due process and fairness, failed to obtain any just outcome for Zahira. III The small fry get caught, the big fish get away As an Enquiry Officer, the Registrar General does find that 'Zahira had changed her stand at different stages and has departed from the statements made before this Court.' The Court also endorses the finding that 'money has changed hands' and that was the 'main inducement responsible which made Ms. Zahira to change her statements although the element of threat could not be ruled out.' Overall, comparing blandishments with threats, it proceeds to hold that 'money played a vital role.' There the story, more or less, ends because the learned Justices issue no directives for criminal investigation cornering the varieties of impermissible and unconstitutional force and fraud perpetrated by some important regional coercive political actors. To be fair, their Lordships fully recognize that 'fair trial' crucibles may be fully vitiated and betrayed if 'the witnesses get threatened or are forced to give false evidence...' Their Lordships even quote Jonathan Swift with a telling effect: 'Laws are like cobwebs, which may catch small flies but let wasps and hornets break* through.' I hope that a statement which avers that this "the only direction the Honourable Court has to issue concerning Madhu Srivastava (in white in above photo) and Bhutto Srivastava, alleged to have intimidated/ 'corrupted' Zahira testimony is that the Income Tax department may proceed against them in their discretion on one or two counts." 2/4 Judicial System 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 non- Judge 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! 3/4 Judicial System 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 decision- making 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. <title>THE ZAHIRA CONTEMPT CASE</title> <author>Upendra Baxi</author> <keywords>LR1</keywords> <publication>The Lawyers Collective</publication> <pubDate>01/10/2006</pubDate> <classif>L53a</classif> <entrydt>09/11/2006</entrydt> <sd>VD</sd> 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 (1982- 1985); 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. 4/4 Judicial System