Objection, counsellor

On 30th May 2007, the news channel NDTV telecast a report about a “sting” operation on the role of the defence lawyer and the special public prosecutor in the ongoing sessions trial. On May 31, 2007 a division bench of the Delhi High Court, given the serious issues concerning criminal justice administration raised by the telecast, registered a contempt petition suo motu.

The court, after viewing the original video recordings and after giving all concerned parties a full hearing — as also the amicus curiae, Arvind Nigam — concluded that Khan and Anand were guilty of criminal contempt. Section 2(c) of the Contempt of Courts Act 1971 defines criminal contempt as any act which “interferes with or obstructs the administration of justice or has the tendency to do so”. The rationale of contempt power is that unobstructed administration of justice is essential to maintain public confidence in the courts.

The high court after detailed consideration found that Khan and Anand were in league in their efforts to suborn the key witness Kulkarni and thereby secure Nanda’s acquittal. The court wondered why a defence lawyer should discuss money with Kulkarni and why there should be discussion about the strategy regarding the conduct of the prosecution case with the public prosecutor, Khan. The tragedy lies as the high court points out, “in the willingness of Anand and Khan to meet and converse with Kulkarni, when they, as seasoned lawyers, ought to have known better”. Furthermore, Anand himself and through his emissary was seen negotiating the quantum of payment to Kulkarni obviously to secure acquittal for his client by influencing Kulkarni and thereby interfering with the judicial process. In the words of the high court, “the entire material leaves a bitter taste in the mouth about the goings-on in the BMW case and there is no manner of doubt whatsoever that there was complicity between Mr Khan and Mr Anand” and that Khan and Anand had interfered or obstructed or at least tended to interfere and obstruct the administration of justice; and consequently both of them were guilty of criminal contempt.

In imposing punishment on Khan and Anand the court pointed out that they were senior advocates, and had not tendered apologies at any stage nor expressed any repentance for their conduct. In these circumstances the punishment imposed was to prohibit them “from appearing in this Court or the Courts subordinate to it for a period of four months”. The court further imposed a fine of two thousand rupees each on Anand and Khan. The division bench also recommended that the full court strip them of their designation as senior advocates as they had forfeited the right to the honour.

The punishments imposed have generated heated controversy. It is argued on the basis of the Supreme Court’s judgment in V.C. Misra’s case that punishment in the form of suspension from practice is not permissible in contempt jurisdiction as, under the Advocates Act, that form of punishment is solely within the purview of the Bar Councils when dealing with professional misconduct. In V.C. Misra’s case the court originally suspended Misra from practising in any court in India; that part was subsequently overturned by the Supreme Court. In the present case the high court has done no such thing. Besides, Section 34(1) of the Advocates Act enables a high court to frame rules laying down the conditions subject to which an advocate shall be permitted to practise in it and its own subordinate courts. The absence of rules does not debar the high court from prohibiting an advocate in a fit case from appearing before it or in the courts subordinate to it. The fine might be considered a pittance but that is the maximum provided by the Contempt of Courts Act and the court cannot disregard the statutory restriction.

Suborning a witness is the worst form of interference in administration of justice. It would fall within the category of that course of conduct which, in the felicitous language of Justice Chinnappa Reddy, “extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an interest, an abiding and a real interest, and a vital stake in the effective and orderly administration of justice, because, unless justice is so administered, there is the peril of all rights and liberties perishing”. In view of the gravity of the offence the contemners should have been punished with simple imprisonment for some term. The high court has erred on the side of leniency. The punishment imposed by it will not pinch the contemners at all.

Be that as it may, debate on the form and quantum of sentence must not deflect us from the unmistakable message of the high court that it will not tolerate sharp practices which interfere with the administration of justice, however highly placed the contemners may be. In awarding punishment for criminal contempt the court is not actuated by vengeful motives nor is it concerned with protecting the dignity of the court against insult or injury. Its real concern is to protect and to vindicate the right and confidence of the public that the administration of justice shall not be obstructed or interfered with.

This is a shameful blot on the legal profession, truly a wake-up call for all members of the legal fraternity, and particularly the Bar Councils and other disciplinary bodies who are entrusted with maintenance of high professional and ethical standards amongst members of the ‘noble’ profession of law.

The author is a former attorney-general of India

express@expressindia.com