Petitioner had prayed for making provision for creating Intra Court Appeal against the order of Supreme Court before larger benches or creating Constitutional Courts when conviction is by the Supreme Court itself.
Hearing on 17th April had set one more record of appearance of highest advocates.
Around 158 Advocates marked their appearance on behalf of petitioner Adv. Nilesh Ojha, Adv. Vijay Kurle & Shri. Rashid Khan Pathan. It is highest number of Advocates in Supreme Court history which have appeared in contempt case for alleged contemnors.
Case had also set a record of first case in Supreme Court history where sentence by the Supreme Court is stayed on the ground of non-availability of the appellate forum against Supreme Court.
Sr. Counsel Shri. Rajeev Dhavan alongwith 9 advocates marked their appearance for Adv. Prashant Bhushan
In two Writ Petitions Supreme Court is made party respondent alongwith Law Ministry. ASG Vikramjeet Banerjee & 3 other advocates appeared on behalf of Supreme Court.
Attorney General R. Venkatraman, Solicitor General Tushar Mehta with 15 advocates marked their presence for Law Ministry (Union of India).
The case of Adv. Nilesh Ojha, Adv. Vijay Kurle &Shri Rashid Khan Pathan, is the first case in the Supreme Court history where the sentence by Supreme Court in contempt case is stayed by the Supreme Court itself.
New Delhi:- The importance of this historic case is that, earlier many high positioned Judges, Minister, IPS Officers, Activist, CBI Directors etc., were punished by the Supreme Court but their sentence was not stayed.
High Court Judge C.S. Karnan, Maharashtra’s Cabinet Minister Swaroop Singh Naik, State Chief Secretary Ashok Khot, Corporate Businessman Subrato Roy Sahara, IPS & Police officers M.S Ahlawat, witness Zahira Shaikh, etc., were amongst those who were sentenced and sent to jail but their sentence was not stayed.
Even Supreme Court Judges Markanday Katju, Congress President Rahul Gandhi were tendered apology but such point of one appeal was never raised and the action was not stayed.
Till now there was no provision for challenging convictions passed by the Supreme Court nor this issue was raised and considered by the Supreme Court.
However, for the first time this issue was raised in two Writ Petitions (Crl.) No. 243 & 244 of 2020. Said petitions were filed in Supreme Court on 20.07.2020 & 22.07.2020 by Adv Vijay Kurle & Adv. Nilesh Ojha respectively, pointing out the serious flaw in the law that the provision of one appeal is not provided against the order of the Supreme Court and it is a gross violation of citizens fundamental rights guaranteed under Article 21 of the Constitution and Article 14 (5) of the International Covenant on Civil and Political Rights (ICCPR)
That as per Article 14 (5) of International Covenant on Civil and Political Rights (ICCPR) the State is bound to provide one appeal against the conviction and sentence by the Supreme Court. In similar cases the United Nations Human Rights.
That, the ratio laid down in a recent judgment of Five – Judge Bench of UK Supreme Court in the case of Her Majesty’s Attorney General Vs. Crossland [2021] USKC 58, support the prayers of the petitioners. There it is held that the person convicted by the Supreme Court under contempt in its original jurisdiction had a right of one appeal before larger benches.
That a 17-Judge Bench of United Nations Human Rights Committee Comprising Justice P.N. Bhagwati in the case of Anthony Michael Emmanuel Fernando v. Sri Lanka, 2005 SCC OnLine HRC 22 had strongly condemned the conviction of imprisonment in contempt by the Chief justice of the Supreme Court of Srilanka and declared it to be arbitrary, draconian and inappropriate and violative of Art. 9 of ICCPR. The committee in many such cases had directed the State authority to pay compensation to the citizen and provide them an appellate jurisdiction against the conviction by the Supreme Court in its original jurisdiction.
The other landmark judgments are;
(i) Luis Hens Serena v. Spain, 2008 SCC OnLine HRC 20, (ii) Chota Ratiani Vs. Georgia 2005 SCC OnLine HRC 25 (Para 11.3 & 12), (iii) Luis Olivero Capellades Vs. Spain 2006 SCC OnLine HRC 42 (Para 7 & 8).
That earlier on at least two occasion the unlawful conviction under Contempt jurisdiction by this Hon’ble Court are quashed and set aside by larger Benches in Writ Petition. [ M. S. Ahlawat Vs. State of Haryana (2000) 1 SCC 278, Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409]
That as per settled law the State authority is guilty of not providing one Appeal and thereby violating rights of the petitioner under Article 14(5) of the International Covenant on Civil and Political Rights (ICCPR).
Therefore, State is bound to pay compensation to the petitioner.
Download copy of order here.
