The following is a summary of the class presentations, discussions and opinions by the students who led the Forum meeting on the R.K.Anand case:
1. On the Issue of Contempt of Court
a) The Standard of Proof in Contempt of Court Proceedings:- One of the striking issues in the recent judgment by the Supreme Court in R.K. Anand v.Registrar, Delhi High Court[1] is the manner in which the Court decided whether the charge of criminal contempt had been established or not. The standard applied was not different from the precedent case law. The approach of the Court was in consonance with the law laid down in a range of cases from In Re Vinay Mishra[2] to Daroga Singh and Ors. v. B.K. Pandey[3]. The Court spelt it out clearly that there is a difference between the manner of proof in a contempt proceeding and that in a criminal trial. While the standard of proof in both was said to be the same, namely, that of proving a fact “beyond reasonable doubt”, the manner of proof in both was contended to be different. The settled position of law was noted to be that proceeding of contempt of court was sui generis. The provisions of the Criminal Procedure Code and the Indian Evidence Act were not applicable in such a proceeding. Instead, the principles of natural justice was said to apply. Now, the established position of law is that the standards that need to be met in a contempt of court proceeding are those of fairness and objectivity, absence of prejudice to the person facing the charge of contempt and provision of the opportunity to the person to defend herself.
Adherence to the abovementioned standard raises a number of issues, especially with particular reference to the RK Anand judgment. The absence of a fixed procedure to be followed in these type of trials has led to the following shortcomings in the manner in which the contempt of court proceedings are conducted. In this regard, the lacunae which can be identified from a reading of the Supreme Court judgment are:
Firstly, the opportunity to cross-examine the witnesses is very rarely given to the person charged with criminal contempt. In the case of Daroga Singh and Ors., it was noted that one of the reasons for denying the opportunity to cross-examine is the need to decide the case expeditiously. R.K. Anand’s request to cross-examine Poonam Agarwal was turned down by the High Court. But the point to be noted is to what extent should interests of expediency be given priority to interests of fairness and uncovering the truth. Further, the reasoning behind denial of the opportunity to cross examine was that what had transpired between the parties were already there on the micro-chips and the CDs. It was stated that no statement by Poonam Agarwal would change this state of affairs. But the point to be noted is that it was the reliability of these CDs that was being questioned by RK Anand in the first place.
Secondly, IU Khan was let off the hook on the ground that the tape, containing his recording, submitted to the Court was incomplete and hence its veracity was not adequately established. However, it doesn’t seem that the veracity of RK Anand’s sting tape was proved either. Attempts to do so were struck down by the Court. For instance, the request by RK Anand to send the CDs to the Central Forensic Science Laboratory to determine whether it had been tampered was turned down. So it seems that different standards were applied to judge IU Khan and RK Anand.
Thirdly, the judgment states that RK Anand did not deny the recording, which was broadcasted by the news channel, in the first instance. This fact seems to have weighed against him, especially since, as is mentioned in the judgment, that IU Khan had, right at the beginning, claimed that the recording had been doctored. However, the fact of the matter is that the judges should not have referred to statements made by the persons, in interviews to television channels, in the first place. Such observations do not have any place in the judgment.
These faux pas which have been pointed out would not have taken place at all if the Criminal Procedure Code and the Indian Evidence Act procedural standards had been followed. There is no overarching reason as to why a contempt of court charge should be made subject to a different manner of proof as opposed to a criminal trial. This is especially since it is in the same genre as a criminal proceeding. The defence that, nevertheless, a “beyond reasonable” standard is being applied doesn’t hold good either. The problem is that by adopting a different manner of proving contempt of court charges, the courts seem to be ready to come to a conclusion that the “beyond reasonable doubt” standard has been satisfied more readily than in the case of criminal trials. Then the standard of proof in criminal contempt of court charges doesn’t continue to be the rigorous “beyond reasonable doubt” standard as the courts are claiming it to be. Thus, the judiciary is effectively bringing in a new manner of proving contempt of court charges according to what it thinks fit.
The lowering of standards for the prosecution to fulfil before a contempt charge is established is of great concern, especially in the light of a perception among some that the judicial institution is becoming heavily insulated from the public. Making it easier to charge a person for contempt would amount to giving a free rein to the judiciary to reprimand anyone who criticises it. This power is greater in light of the wide scope of the definition of “criminal contempt” in the Contempt of Courts Act, 1971. The justification of giving a sui generis label to contempt proceedings needs to questioned here. If it had been on par with a criminal trial, then the same manner of proving the charge would have had to be followed. Such an approach will only retrench the principles of natural justice standard which is being followed by the courts. Another option that seems viable, which surfaced during the course of the discussions, was to do away with the Contempt of Courts Act itself. Instead, provisions of Chapter X of the Indian Penal Code relating to the contempt of lawful authority of public servants may be used to charge a person for criminal contempt of court. This will ensure that the standard of “beyond reasonable doubt” is adhered to in substance since the manner of proof applicable will be that of criminal trials.
Another issue of concern, if the judges are not made to adhere to strict standards while charging a person for criminal contempt, is the fact that he will be a “judge in his own cause”. The Daroga Singh case offers a counter argument by stating that the prosecution of the person is not to protect the judges personally but to protect the administration of judges. However, in the light of instances like that of Arundhati Roy being charged of criminal contempt, the validity of such an argument needs to be questioned.
The notions that are a spill over from the colonial times linger on to portray the judges as high and mighty. The fact that truth was added as a defence to a contempt of court charge (accompanied with public interest) only recently shows how long these notions have been allowed to stay behind. There is no need to grant this protective shield to the judiciary. On the contrary, steps need to be taken to make its functioning more accountable and transparent. This is the need of the hour and not giving it blanket powers to convict any passer-by for criminal contempt. This is why there is a need to do away with the difference between standards of proof and manner of proof. High standards need to be applied for both and this can be done by laying down that the procedure for charging someone with criminal contempt should be the same as that of a criminal trial.
2. Why did the SC acquit IU Khan of criminal contempt of court while the HC had convicted him on the same evidence?
At the HC level, IU Khan was held in criminal contempt of court and was stripped of his designation as Senior Advocate. The court was convinced, “beyond a shadow of doubt”, that there was complicity between IU Khan, R.K.Anand and Kulkarni.
The court took into account various factors while convicting IU Khan. The court felt it was wrong on part of Khan to be so familiar with the star witness i.e. Kulkarni. When Kulkarni brought up the fact that he had not taken the summons, Khan instead of asking him to receive summons, asked Kulakrni to come to his house, even inducing him with whisky. The court found this behaviour of the Public Prosecutor to be completely inappropriate and unethical.
Another factor the mention of “Bade Sahab” by Kulkarni while talking to Khan. The HC was convinced that this was Anand, though there was no direct reference to him throughout the conversation. The Court did not accept Khan’s submission that the reference was to the Police Commissioner.
The Court felt that Khan also deliberately omitted to bring all these facts to the prosecution’s notice and thus, seriously impacted the BMW trial. Therefore, they held him in criminal contempt of court.
The SC on a careful consideration of evidence came to the conclusion that the HC had erred in its final decision though it concurred on the point that Khan’s conduct was inappropriate for a lawyer in general and a prosecutor in particular. But it said that there was a wide gap between professional misconduct and criminal contempt of court. The SC felt that Khan’s behaviour only amounted to criminal contempt of court. A major factor that influenced the court was that the transcript of the conversation between Khan and Kulkarni was incomplete and it was difficult to ascertain with certainty that “Bade Sahab” was a reference to Anand. The Court stated that what needs to be given weightage was what IU Khan understood by the reference and not what Kulkarni meant by it. Since it was difficult to determine this, SC acquitted Khan but gave the final discretion to The Full Court of the Delhi High Court on the question of whether or not to continue the honour of Senior Advocate conferred on him in light of the findings recorded in the SC judgment.
3. Professional misconduct vis-à-vis Criminal Contempt of Court
Khan’s behaviour was held to be professional misconduct whereas Anand was charged with criminal contempt of court. While Anand was given a period of eight weeks from the date of service of notice for filing his show-cause as to why punishment awarded to him should not be enhanced, Khan’s case was directed back to the Delhi High Court for consideration and he had no prior notice as to the action of the SC.
In the case In re Vinay Mishra, the SC held that under Article 142 of the Constitution the jurisdiction and powers of the Supreme Court which are supplementary in nature and are provided to do complete justice in any manner, are independent of the jurisdiction and powers of the Supreme Court under Article 129 which cannot be trammelled in any manner by any statutory provision including any provisions of the Advocates Act, 1961 or the Contempt of Courts Act, 1971. The implication of this case was that the SC was vesting in itself the power to try cases of professional misconduct by advocates which was actually vested in the Bar Council as per s.35 of the Advocates Act, 1961. Fortunately, this decision was overruled in Supreme Court Bar Association v. Union of India where it was held that the SC must not exceed its jurisdiction and it must act with restraint while exercising its powers under A.142. Thus, it was unacceptable for the Court to "take over" the role of the statutory bodies or other organs of the State and "perform" their functions.
While the Bar Council is considering cases relating to professional misconduct, it follows a fixed procedure where a Disciplinary Committee is set up, the advocate is allowed to defend himself and most importantly an appeal to the decision of the Committee lies with the SC. This procedure as contrasted with the contempt proceedings seems much fairer as the advocate is allowed one appeal. It is surprising that Criminal Contempt of Court which is a graver offence does not have either a fixed procedure or a process of appeal. With reference to the case, if IU Khan is dissatisfied with the decision of the Del HC, then it is highly unlikely that his appeal will be successful since the Supreme Court has already pre-judged the matter. Wouldn’t this amount to unfairness?
Another question that arises from this case is whether the court expects a higher standard of behaviour from the Public Prosecutors as opposed to other lawyers? If yes, is the court correct in its approach?
An interesting thing to note is that it seemed to have influenced the Court that in the interview immediately after the sting operation was aired, Khan said that the footage had been doctored while Anand had not questioned the credibility of the footage itself and gone on to defend himself. This brings in the issue of trial by media and how judges may be affected by it.
4. Role of the Media
Several issues emerge from the RK Anand which need to be scrutinized. It is important to conduct such scrutiny in light of recent incidents and practical considerations.
The question posed by Singhvi J. to the lawyers concerned was whether it was appropriate for the media to air the tapes during court proceedings of the BMW case? Does it adversely affect or prejudice the parties involved? At a broader level does this vitiate fair trial?
The present judgment explains that trial by media takes place where the impact of television or newspaper coverage on a person’s reputation creates a widespread perception of guilt regardless of any verdict in a court of law. In such cases the media has tried and found the person guilty and thus adjudicated upon the very issue pending before the court and this makes a fair trial virtually impossible regardless of the its result.
In this case, an important issue which came up before the Court was whether NDTV was guilty of criminal contempt under the Contempt of Courts Act? The Court held that this case fell squarely under the defence under the new S. 13(b) of the Act which provides that justification by truth and public interest put together form a defence. The Court also accepted Shri Salve’s compelling argument that NDTV was in fact trying to prevent the advocates’ an attempt to interfere in the course of justice. It exposed erring lawyers. Further, the stings had nothing to do with the accused, Sanjeev Nanda. It did not conjecture about the culpability of the accused which is what the Court thought the standard is. However, it is interesting to note at this point that there were television interventions even in December 2007 when the Anand contempt case was before the Delhi High Court.
Keeping in mind the possible repercussions of sting operations and the consequence of their being aired sub judice, Singhvi J. had raised the question on the implications of trial by media. In this context, counsel for Mr. I. U. Khan, Mr. P.P. Rao had raised this argument before the High Court by submitting that NDTV should have carried out the sting only after obtaining permission from the trial court or the Chief Justice of the Delhi High Court. In the alternative, he contended that they should have submitted the incriminating material to the court before its telecast. This argument was immediately rejected by Alam J. who noted that “it would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court.” His reasoning was that seeking prior permission would amount to pre censorship, which is a clear infraction of the right to freedom of speech and expression of the media.
However, in the very next paragraph, Alam J. seems to restrict this right by warning the media that it was not free to publish any report concerning a sub judice matter and a sting operation being more incisive and risky, would necessitate greater procedure being followed. He stated that “the legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences.” However, considering the potential implications the question of trial by media raised in this case, it is surprising that he did not explain what these ‘well defined’ parameters were; nor did he elucidate on the consequences of non compliance.
This issue thus assumes importance in light of the live telecast of the sting operation by NDTV. On 30th May, when the trial was in proceeding, NDTV had set up mobile units at R.K. Anand’s and I.U. Khan’s house, wherein they proceeded to show them the footage and ask them their opinions about the same. Simultaneously, they had a panel of eminent lawyers who were also being asked about their first opinion regarding the footage. R.K. Anand had twice refused to give his comments along with Sanjeev Nanda, although later he relented. However, this could also be done under the fear of unwavering media scrutiny, since his denial to give an interview could subsequently, easily be highlighted to impute guilt and fear. Furthermore, taking prima facie reactions from fellow colleagues raises questions about the impact on judicial proceedings, since they would comment based on the assumption that the sting operation was genuine. The potential consequences of such actions can only be ascertained if one juxtaposes the idea of a two hour long telecast (and the two day long viewing of the unedited version in the Supreme Court) with the eight minute clip presented by the defense to point out the inconsistencies in NDTV’s footage.
The second major question which needs to be considered is whether such publication on Television influence the judges who are hearing the same case? Is this evident in this judgment given Alam J.’s comments in parantheses splintered throughout the judgement? [Eg: Paragraphs 24 and 78, 125].
When a matter is sub-judice it is rather obvious that judges would naturally be influenced by what they read in the newspapers, watch on television and hear people talking about all around them. Further, there is some level of pressure on judges to give a particular verdict regardless of whether the application of legal reasoning results in the same conclusion.
Such pressure and influence is what is commonly referred to as “trial by media”. While it may bear positive fruits in some case, excessive action of this kind might cause, in some way or the other, censorship of judges in high profile cases. For instance, in the Jessica Lal case, there was tremendous pressure on the judiciary to reopen the matter and consider it again. To that extent, perhaps trial by media is not necessarily undesirable. However, if the media starts examining evidence, making confidential information such as the results of a narco-analysis case public and then announcing verdicts or pre-judgments on its own accord, then it should be strongly castigated. There are sound legal bases for why certain kinds of evidence are not even admissible in a court of law. Regardless of the normative question of whether such evidence should or should not affect the reasoning of a judge, it positively does affect.
One of the issues raised in the court was the role of lawyers. Alam J., bemoaned the erosion of professional values amongst lawyers which resulted in the erstwhile noble profession turning into a trading business. This decline in standards is especially marked in cases of professional ethics which has seen senior advocates taking part in TV debates and interviews discussing cases pending before the court. This might seem contradictory in respect of Alam J.’s earlier stance wherein he saw no fault in R.K. Anand being made to answer questions in a live telecast through out the world. Another interesting point brought out by the judges was the role played by the various State and National Bar Councils who provided unstinted support to any cause brought up by the lawyers. However, it had been lax in maintaining professional standards and ensuring statutory compliance. One of the reasons for this castigation could be the surrounding circumstances in which the case was being heard. It was the time when news was rife about protests by lawyers about the recent amendment in the CrPC relating to bail and about the strikes and clashes by the Madras lawyers. It is possible that these facts played in the minds of the judges when they were deciding the case.
The next issue which needs to be studied is the constitutional foundation of sting operations and whether they are justified keeping in mind the recent faux pas in the Uma Khurana case. The right to freedom of press has its roots in the right to freedom of speech and expression enshrined in Art. 19(1)(a) of the constitution. In Romesh Thapar v. State of Madras, the Court said that “The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. ….In some the fundamental principle involved here is the peoples’ right to know.” Again, in Bennett Coleman and Co. v. Union of India, it was held that the concept of peoples’ right to know is located in Art. 19(1)(a). However, several contentious questions emerge from this background. First, what is the purpose of the media? Whether the media should have the discretion to decide what it airs? Who decides what “public interest” is? Further, over what information does the public have a “right to know”? In most of these cases, the Court talks about Government accountability and about the freedom of press regarding matters therein. What about private persons committing crimes and the presumption of innocence until proven guilty? These are some of the themes which need to be looked into.
This leads us to the critical question of ‘to what extent can the media go and to what extent should a person be informed?’ This issue is relevant in light of the cheap publicity sought by many media channels by engaging in sting operations. Women like Uma Khurana become victims of publicity stunts and entrapment cases (which are strictly prohibited in the United States for their inducement to commit wrongs) and this can be evidenced by the fact that there is a proliferation of video graphic stings as opposed to audio/print sting operations. Playing on public interest and viewership in a framework bereft of uniform standards is dangerous and even Alam J. seems to recognize this when he comments on the possibility of media houses editing footage to give it a certain prejudicial slant. This was evident in this case, when although I.U. Khan was interviewed properly, the full telecast was shown only once and later the anchors were picking out and repeating certain statements made by him. The burden during sting operations has to be much higher since one has to show both genuiness and bona fide.
The next question is the pertinent issue of whether India needs laws on ting operation keeping in mind the above issues. The Uma Khurana case occurred while the media was vehemently opposing the Broadcasting Bill. Several editorials were written in defence of the media, arguing that this was a one off case of irresponsibility on part of Live India and that the entire media should not be put to disrepute because of it. However, it is interesting to note that there are no laws or regulations or even judgments which lay down guidelines for sting operations. It is ironical that while India has stringent laws on wiretapping under the Telegraph Act, 1885, there is nothing to regulate videographing of a person using deceptive means.
In the United Kingdom, the British Press drafted a Code of Conduct to be enforced by the Press Complaints Commission set up by the Press itself. One of its provisions clearly provides that subterfuge can be justified only in the public interest and only when material cannot be obtained by other means. The second test of inaccessibility to material except by deceptive means is an important test which we should consider. Further, the Code of Conduct has clearly enumerated guidelines as regards what constitutes “public interest” which leaves nothing to ones imagination. Further, the Code requires that the editor must present a full explanation to the Commission demonstrating how the public interest was served. This is an additional check on the unbridled powers of the media and also keeps its freedom in tact.
Similar to the provisions in United Kingdom, CNN in the US too has strict policy guidelines limiting the usage of hidden cameras. They have come out with a four point program which includes:
Firstly, the information or evidence to be gathered by a hidden camera should significantly contribute to a story that is of substantial value to society or of vital public interest.
Fishing expeditions are not permissible insofar as there should be some expectation of illegal behaviour or wrongdoing.
Before using a hidden camera a journalist must first try and exhaust alternatives for obtaining the interview or information and thus he should resort to them only in cases of last resort.
The prior approval of the senior editors and management is a perquisite and sometimes the permission of the federal agencies is also required.
Thus, the message sent out there is loud and clear: good television is not enough reason to use a hidden camera. However, in India we have no law governing sting operations, no uniform internal regulation, no broadcasting code of conduct and an ambivalent law on privacy. At the same time, India has traditionally been an opaque society with a prevalence of corruption. Thus, a prohibition of sting operations is not the solution.
This gives rise to the question of who decides what is ‘public interest’: it is the government (who would do so by attempting to pass the draconian Broadcasting Bill, 2006); the viewers, the courts (as the custodians of morality) or the management in the media companies (whose sole consideration would be the rise in TRP’s)? This question posed a challenge to the court, since Sunil Kulkarni, the man behind the sting operation, wanted to delay the publication of the sting by three weeks because he feared for his safety. Does the witness’s safety constitute public interest?
The problem with self regulation is that it is only part of the answer. After the Uma Khurana case, Barkha Datt and other media doyens vociferously argued for a self regulatory code which would govern their operations. However, public memory being short, this was soon forgotten. This issue came up again during the present case, within similar arguments being voiced. Nevertheless, this issue will again die down and resurface only in time for the next controversy. This raises the all important question of what, if any, should be the role of the government in regulating this highly competitive, TRP driven media industry?
5. On the Issue of Recusal
One of the issues the RK Anand judgment discusses is of a disturbing new trend in the judiciary. This issue comes up because of RK Anand’s application asking J. Sarin to recuse himself on a number of frivolous grounds. Recently Ram Jethmalani got J. BN Agarwal to recuse himself from the Uphaar tragedy case wherein the Ansal brothers sought bail. The reason for recusal was that Ram Jethmalani had previously criticized J. Agarwal and was therefore embarrassed to present arguments before him. Of course, J. Sinha who was next on the roster granted bail promptly. Another recent instance is of J. Pasayat who recused himself from the Nandi Corridor case on mere oral submission of the alleged apprehension of bias and without dealing with the recusal application when Shanti bhushan alleged that Since HD Gowda had been rapped by Judge Pasayat during an earlier hearing Gowda had "reasonable apprehension regarding likelihood of bias and want of impartiality on the basis of relevant material in his possession and having regard to the antecedent events". All these have been cited often as instances of “bench fixing” which has been seen as the new method of a litigant choosing his/her bench.
Clearly in this case, J. Aftab Alam takes a stand on this matter of Bench fixing. He follows up on Mr. Salve’s argument that the allegations made by RK Anand, though not entertained by the Bench, did in fact have an impact on his sentence. Mr. Salve contention was that RK Anand’s petition is a brazen attempt to browbeat the High Court and that the recusal petition is the reason why he was given only a token punishment. The Supreme Court agrees with this stand and while condemning the action deeply, it asks RK Anand to show-cause why his punishment must not be increased. The Supreme Court emphasizes that RK Anand has not shown any regret for his gross misdemeanor and the petition is an indication of him defying the High court’s authority. One can connect this stand of the Supreme Court with their statements earlier as to how a motivated application for recusal is bound to cause “hurt” to the judges. Agreed that such senior members of the judiciary must be shown respect, but does this attitude show us that these judges, who have been placed on such a high pedestal, can never be accused of bias? Both J. Sarin’s response to the application as well as J. Alam’s comments on the recusal petition are an indication of how aghast they are by this allegation. And while RK Anand’s attempt at Bench fixing must be condemned, an allegation of bias is taken to be akin to doubting the integrity of the judges and questioning the neutrality and freedom of the judiciary.
In the State of West Bengal & Ors. v. Shivananda Pathak & Ors((1998) 5 SCC 513), the Supreme court notes that “Much harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.” This statement is quoted by J. Sarin in his lengthy response to the recusal application. In this context it is interesting to note both J. Alam’s as well as J. Sarin’s shock and outrage at an allegation of bias.
So what should the standard be for allegation of bias? When do we see it as a genuine concern and when is it an attempt at thwarting the court? I’d like to agree with the principles laid down in Ranjit Thakur v. Union of India (AIR1987 SC 2386), particularly the following statement. “As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, “Am I biased”; but to look at the mind of the party before him.”
The Supreme Court criticizes the time and effort taken by J. Sarin to respond to the allegations. It is felt that the grounds on which recusal was asked for should have been rejected at a glance. Do judges have to spend their time in refuting the allegations and defending themselves? J. Sarin’s response to the petition can be said to be caustic and on the defensive. He repeatedly makes reference to the statement of RK Anand “It seems stars of both do not match” and derides the same. Do such sort of allegations lead to bad blood between the advocates and the judges. It must be mentioned that the lawyers know that most judges, hurt by the allegations will recuse themselves as seen in the case of both J. Pasayat and J. Agarwal. So it is an easy way out for the lawyer to get a favourable bench.
Soli Sorabjee believes that in a case of conflict of interest is the proper course is for the lawyer to recuse himself. Should this be the norm? In any case, in a case of clear “bench fixing” hopefully the bar will take a firm approach and judges will refute the allegation rather than recuse themselves.
-Aathira Menon
Megha Kaladharan
Reeba Muthalaly
Sneha Mohanty
Vrinda Bhandari
[1] Criminal Appeal No. 1393 of 2008.
[2] AIR 1995 SC 2348.
[3] (2004) 5 SCC 26.
1. On the Issue of Contempt of Court
a) The Standard of Proof in Contempt of Court Proceedings:- One of the striking issues in the recent judgment by the Supreme Court in R.K. Anand v.Registrar, Delhi High Court[1] is the manner in which the Court decided whether the charge of criminal contempt had been established or not. The standard applied was not different from the precedent case law. The approach of the Court was in consonance with the law laid down in a range of cases from In Re Vinay Mishra[2] to Daroga Singh and Ors. v. B.K. Pandey[3]. The Court spelt it out clearly that there is a difference between the manner of proof in a contempt proceeding and that in a criminal trial. While the standard of proof in both was said to be the same, namely, that of proving a fact “beyond reasonable doubt”, the manner of proof in both was contended to be different. The settled position of law was noted to be that proceeding of contempt of court was sui generis. The provisions of the Criminal Procedure Code and the Indian Evidence Act were not applicable in such a proceeding. Instead, the principles of natural justice was said to apply. Now, the established position of law is that the standards that need to be met in a contempt of court proceeding are those of fairness and objectivity, absence of prejudice to the person facing the charge of contempt and provision of the opportunity to the person to defend herself.
Adherence to the abovementioned standard raises a number of issues, especially with particular reference to the RK Anand judgment. The absence of a fixed procedure to be followed in these type of trials has led to the following shortcomings in the manner in which the contempt of court proceedings are conducted. In this regard, the lacunae which can be identified from a reading of the Supreme Court judgment are:
Firstly, the opportunity to cross-examine the witnesses is very rarely given to the person charged with criminal contempt. In the case of Daroga Singh and Ors., it was noted that one of the reasons for denying the opportunity to cross-examine is the need to decide the case expeditiously. R.K. Anand’s request to cross-examine Poonam Agarwal was turned down by the High Court. But the point to be noted is to what extent should interests of expediency be given priority to interests of fairness and uncovering the truth. Further, the reasoning behind denial of the opportunity to cross examine was that what had transpired between the parties were already there on the micro-chips and the CDs. It was stated that no statement by Poonam Agarwal would change this state of affairs. But the point to be noted is that it was the reliability of these CDs that was being questioned by RK Anand in the first place.
Secondly, IU Khan was let off the hook on the ground that the tape, containing his recording, submitted to the Court was incomplete and hence its veracity was not adequately established. However, it doesn’t seem that the veracity of RK Anand’s sting tape was proved either. Attempts to do so were struck down by the Court. For instance, the request by RK Anand to send the CDs to the Central Forensic Science Laboratory to determine whether it had been tampered was turned down. So it seems that different standards were applied to judge IU Khan and RK Anand.
Thirdly, the judgment states that RK Anand did not deny the recording, which was broadcasted by the news channel, in the first instance. This fact seems to have weighed against him, especially since, as is mentioned in the judgment, that IU Khan had, right at the beginning, claimed that the recording had been doctored. However, the fact of the matter is that the judges should not have referred to statements made by the persons, in interviews to television channels, in the first place. Such observations do not have any place in the judgment.
These faux pas which have been pointed out would not have taken place at all if the Criminal Procedure Code and the Indian Evidence Act procedural standards had been followed. There is no overarching reason as to why a contempt of court charge should be made subject to a different manner of proof as opposed to a criminal trial. This is especially since it is in the same genre as a criminal proceeding. The defence that, nevertheless, a “beyond reasonable” standard is being applied doesn’t hold good either. The problem is that by adopting a different manner of proving contempt of court charges, the courts seem to be ready to come to a conclusion that the “beyond reasonable doubt” standard has been satisfied more readily than in the case of criminal trials. Then the standard of proof in criminal contempt of court charges doesn’t continue to be the rigorous “beyond reasonable doubt” standard as the courts are claiming it to be. Thus, the judiciary is effectively bringing in a new manner of proving contempt of court charges according to what it thinks fit.
The lowering of standards for the prosecution to fulfil before a contempt charge is established is of great concern, especially in the light of a perception among some that the judicial institution is becoming heavily insulated from the public. Making it easier to charge a person for contempt would amount to giving a free rein to the judiciary to reprimand anyone who criticises it. This power is greater in light of the wide scope of the definition of “criminal contempt” in the Contempt of Courts Act, 1971. The justification of giving a sui generis label to contempt proceedings needs to questioned here. If it had been on par with a criminal trial, then the same manner of proving the charge would have had to be followed. Such an approach will only retrench the principles of natural justice standard which is being followed by the courts. Another option that seems viable, which surfaced during the course of the discussions, was to do away with the Contempt of Courts Act itself. Instead, provisions of Chapter X of the Indian Penal Code relating to the contempt of lawful authority of public servants may be used to charge a person for criminal contempt of court. This will ensure that the standard of “beyond reasonable doubt” is adhered to in substance since the manner of proof applicable will be that of criminal trials.
Another issue of concern, if the judges are not made to adhere to strict standards while charging a person for criminal contempt, is the fact that he will be a “judge in his own cause”. The Daroga Singh case offers a counter argument by stating that the prosecution of the person is not to protect the judges personally but to protect the administration of judges. However, in the light of instances like that of Arundhati Roy being charged of criminal contempt, the validity of such an argument needs to be questioned.
The notions that are a spill over from the colonial times linger on to portray the judges as high and mighty. The fact that truth was added as a defence to a contempt of court charge (accompanied with public interest) only recently shows how long these notions have been allowed to stay behind. There is no need to grant this protective shield to the judiciary. On the contrary, steps need to be taken to make its functioning more accountable and transparent. This is the need of the hour and not giving it blanket powers to convict any passer-by for criminal contempt. This is why there is a need to do away with the difference between standards of proof and manner of proof. High standards need to be applied for both and this can be done by laying down that the procedure for charging someone with criminal contempt should be the same as that of a criminal trial.
2. Why did the SC acquit IU Khan of criminal contempt of court while the HC had convicted him on the same evidence?
At the HC level, IU Khan was held in criminal contempt of court and was stripped of his designation as Senior Advocate. The court was convinced, “beyond a shadow of doubt”, that there was complicity between IU Khan, R.K.Anand and Kulkarni.
The court took into account various factors while convicting IU Khan. The court felt it was wrong on part of Khan to be so familiar with the star witness i.e. Kulkarni. When Kulkarni brought up the fact that he had not taken the summons, Khan instead of asking him to receive summons, asked Kulakrni to come to his house, even inducing him with whisky. The court found this behaviour of the Public Prosecutor to be completely inappropriate and unethical.
Another factor the mention of “Bade Sahab” by Kulkarni while talking to Khan. The HC was convinced that this was Anand, though there was no direct reference to him throughout the conversation. The Court did not accept Khan’s submission that the reference was to the Police Commissioner.
The Court felt that Khan also deliberately omitted to bring all these facts to the prosecution’s notice and thus, seriously impacted the BMW trial. Therefore, they held him in criminal contempt of court.
The SC on a careful consideration of evidence came to the conclusion that the HC had erred in its final decision though it concurred on the point that Khan’s conduct was inappropriate for a lawyer in general and a prosecutor in particular. But it said that there was a wide gap between professional misconduct and criminal contempt of court. The SC felt that Khan’s behaviour only amounted to criminal contempt of court. A major factor that influenced the court was that the transcript of the conversation between Khan and Kulkarni was incomplete and it was difficult to ascertain with certainty that “Bade Sahab” was a reference to Anand. The Court stated that what needs to be given weightage was what IU Khan understood by the reference and not what Kulkarni meant by it. Since it was difficult to determine this, SC acquitted Khan but gave the final discretion to The Full Court of the Delhi High Court on the question of whether or not to continue the honour of Senior Advocate conferred on him in light of the findings recorded in the SC judgment.
3. Professional misconduct vis-à-vis Criminal Contempt of Court
Khan’s behaviour was held to be professional misconduct whereas Anand was charged with criminal contempt of court. While Anand was given a period of eight weeks from the date of service of notice for filing his show-cause as to why punishment awarded to him should not be enhanced, Khan’s case was directed back to the Delhi High Court for consideration and he had no prior notice as to the action of the SC.
In the case In re Vinay Mishra, the SC held that under Article 142 of the Constitution the jurisdiction and powers of the Supreme Court which are supplementary in nature and are provided to do complete justice in any manner, are independent of the jurisdiction and powers of the Supreme Court under Article 129 which cannot be trammelled in any manner by any statutory provision including any provisions of the Advocates Act, 1961 or the Contempt of Courts Act, 1971. The implication of this case was that the SC was vesting in itself the power to try cases of professional misconduct by advocates which was actually vested in the Bar Council as per s.35 of the Advocates Act, 1961. Fortunately, this decision was overruled in Supreme Court Bar Association v. Union of India where it was held that the SC must not exceed its jurisdiction and it must act with restraint while exercising its powers under A.142. Thus, it was unacceptable for the Court to "take over" the role of the statutory bodies or other organs of the State and "perform" their functions.
While the Bar Council is considering cases relating to professional misconduct, it follows a fixed procedure where a Disciplinary Committee is set up, the advocate is allowed to defend himself and most importantly an appeal to the decision of the Committee lies with the SC. This procedure as contrasted with the contempt proceedings seems much fairer as the advocate is allowed one appeal. It is surprising that Criminal Contempt of Court which is a graver offence does not have either a fixed procedure or a process of appeal. With reference to the case, if IU Khan is dissatisfied with the decision of the Del HC, then it is highly unlikely that his appeal will be successful since the Supreme Court has already pre-judged the matter. Wouldn’t this amount to unfairness?
Another question that arises from this case is whether the court expects a higher standard of behaviour from the Public Prosecutors as opposed to other lawyers? If yes, is the court correct in its approach?
An interesting thing to note is that it seemed to have influenced the Court that in the interview immediately after the sting operation was aired, Khan said that the footage had been doctored while Anand had not questioned the credibility of the footage itself and gone on to defend himself. This brings in the issue of trial by media and how judges may be affected by it.
4. Role of the Media
Several issues emerge from the RK Anand which need to be scrutinized. It is important to conduct such scrutiny in light of recent incidents and practical considerations.
The question posed by Singhvi J. to the lawyers concerned was whether it was appropriate for the media to air the tapes during court proceedings of the BMW case? Does it adversely affect or prejudice the parties involved? At a broader level does this vitiate fair trial?
The present judgment explains that trial by media takes place where the impact of television or newspaper coverage on a person’s reputation creates a widespread perception of guilt regardless of any verdict in a court of law. In such cases the media has tried and found the person guilty and thus adjudicated upon the very issue pending before the court and this makes a fair trial virtually impossible regardless of the its result.
In this case, an important issue which came up before the Court was whether NDTV was guilty of criminal contempt under the Contempt of Courts Act? The Court held that this case fell squarely under the defence under the new S. 13(b) of the Act which provides that justification by truth and public interest put together form a defence. The Court also accepted Shri Salve’s compelling argument that NDTV was in fact trying to prevent the advocates’ an attempt to interfere in the course of justice. It exposed erring lawyers. Further, the stings had nothing to do with the accused, Sanjeev Nanda. It did not conjecture about the culpability of the accused which is what the Court thought the standard is. However, it is interesting to note at this point that there were television interventions even in December 2007 when the Anand contempt case was before the Delhi High Court.
Keeping in mind the possible repercussions of sting operations and the consequence of their being aired sub judice, Singhvi J. had raised the question on the implications of trial by media. In this context, counsel for Mr. I. U. Khan, Mr. P.P. Rao had raised this argument before the High Court by submitting that NDTV should have carried out the sting only after obtaining permission from the trial court or the Chief Justice of the Delhi High Court. In the alternative, he contended that they should have submitted the incriminating material to the court before its telecast. This argument was immediately rejected by Alam J. who noted that “it would be a sad day for the court to employ the media for setting its own house in order; and media too would certainly not relish the role of being the snoopers for the court.” His reasoning was that seeking prior permission would amount to pre censorship, which is a clear infraction of the right to freedom of speech and expression of the media.
However, in the very next paragraph, Alam J. seems to restrict this right by warning the media that it was not free to publish any report concerning a sub judice matter and a sting operation being more incisive and risky, would necessitate greater procedure being followed. He stated that “the legal parameter within which a report or comment on a sub-judice matter can be made is well defined and any action in breach of the legal bounds would invite consequences.” However, considering the potential implications the question of trial by media raised in this case, it is surprising that he did not explain what these ‘well defined’ parameters were; nor did he elucidate on the consequences of non compliance.
This issue thus assumes importance in light of the live telecast of the sting operation by NDTV. On 30th May, when the trial was in proceeding, NDTV had set up mobile units at R.K. Anand’s and I.U. Khan’s house, wherein they proceeded to show them the footage and ask them their opinions about the same. Simultaneously, they had a panel of eminent lawyers who were also being asked about their first opinion regarding the footage. R.K. Anand had twice refused to give his comments along with Sanjeev Nanda, although later he relented. However, this could also be done under the fear of unwavering media scrutiny, since his denial to give an interview could subsequently, easily be highlighted to impute guilt and fear. Furthermore, taking prima facie reactions from fellow colleagues raises questions about the impact on judicial proceedings, since they would comment based on the assumption that the sting operation was genuine. The potential consequences of such actions can only be ascertained if one juxtaposes the idea of a two hour long telecast (and the two day long viewing of the unedited version in the Supreme Court) with the eight minute clip presented by the defense to point out the inconsistencies in NDTV’s footage.
The second major question which needs to be considered is whether such publication on Television influence the judges who are hearing the same case? Is this evident in this judgment given Alam J.’s comments in parantheses splintered throughout the judgement? [Eg: Paragraphs 24 and 78, 125].
When a matter is sub-judice it is rather obvious that judges would naturally be influenced by what they read in the newspapers, watch on television and hear people talking about all around them. Further, there is some level of pressure on judges to give a particular verdict regardless of whether the application of legal reasoning results in the same conclusion.
Such pressure and influence is what is commonly referred to as “trial by media”. While it may bear positive fruits in some case, excessive action of this kind might cause, in some way or the other, censorship of judges in high profile cases. For instance, in the Jessica Lal case, there was tremendous pressure on the judiciary to reopen the matter and consider it again. To that extent, perhaps trial by media is not necessarily undesirable. However, if the media starts examining evidence, making confidential information such as the results of a narco-analysis case public and then announcing verdicts or pre-judgments on its own accord, then it should be strongly castigated. There are sound legal bases for why certain kinds of evidence are not even admissible in a court of law. Regardless of the normative question of whether such evidence should or should not affect the reasoning of a judge, it positively does affect.
One of the issues raised in the court was the role of lawyers. Alam J., bemoaned the erosion of professional values amongst lawyers which resulted in the erstwhile noble profession turning into a trading business. This decline in standards is especially marked in cases of professional ethics which has seen senior advocates taking part in TV debates and interviews discussing cases pending before the court. This might seem contradictory in respect of Alam J.’s earlier stance wherein he saw no fault in R.K. Anand being made to answer questions in a live telecast through out the world. Another interesting point brought out by the judges was the role played by the various State and National Bar Councils who provided unstinted support to any cause brought up by the lawyers. However, it had been lax in maintaining professional standards and ensuring statutory compliance. One of the reasons for this castigation could be the surrounding circumstances in which the case was being heard. It was the time when news was rife about protests by lawyers about the recent amendment in the CrPC relating to bail and about the strikes and clashes by the Madras lawyers. It is possible that these facts played in the minds of the judges when they were deciding the case.
The next issue which needs to be studied is the constitutional foundation of sting operations and whether they are justified keeping in mind the recent faux pas in the Uma Khurana case. The right to freedom of press has its roots in the right to freedom of speech and expression enshrined in Art. 19(1)(a) of the constitution. In Romesh Thapar v. State of Madras, the Court said that “The public interest of freedom of discussion (of which the freedom of press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed so that they may influence intelligently the decisions which may affect themselves. ….In some the fundamental principle involved here is the peoples’ right to know.” Again, in Bennett Coleman and Co. v. Union of India, it was held that the concept of peoples’ right to know is located in Art. 19(1)(a). However, several contentious questions emerge from this background. First, what is the purpose of the media? Whether the media should have the discretion to decide what it airs? Who decides what “public interest” is? Further, over what information does the public have a “right to know”? In most of these cases, the Court talks about Government accountability and about the freedom of press regarding matters therein. What about private persons committing crimes and the presumption of innocence until proven guilty? These are some of the themes which need to be looked into.
This leads us to the critical question of ‘to what extent can the media go and to what extent should a person be informed?’ This issue is relevant in light of the cheap publicity sought by many media channels by engaging in sting operations. Women like Uma Khurana become victims of publicity stunts and entrapment cases (which are strictly prohibited in the United States for their inducement to commit wrongs) and this can be evidenced by the fact that there is a proliferation of video graphic stings as opposed to audio/print sting operations. Playing on public interest and viewership in a framework bereft of uniform standards is dangerous and even Alam J. seems to recognize this when he comments on the possibility of media houses editing footage to give it a certain prejudicial slant. This was evident in this case, when although I.U. Khan was interviewed properly, the full telecast was shown only once and later the anchors were picking out and repeating certain statements made by him. The burden during sting operations has to be much higher since one has to show both genuiness and bona fide.
The next question is the pertinent issue of whether India needs laws on ting operation keeping in mind the above issues. The Uma Khurana case occurred while the media was vehemently opposing the Broadcasting Bill. Several editorials were written in defence of the media, arguing that this was a one off case of irresponsibility on part of Live India and that the entire media should not be put to disrepute because of it. However, it is interesting to note that there are no laws or regulations or even judgments which lay down guidelines for sting operations. It is ironical that while India has stringent laws on wiretapping under the Telegraph Act, 1885, there is nothing to regulate videographing of a person using deceptive means.
In the United Kingdom, the British Press drafted a Code of Conduct to be enforced by the Press Complaints Commission set up by the Press itself. One of its provisions clearly provides that subterfuge can be justified only in the public interest and only when material cannot be obtained by other means. The second test of inaccessibility to material except by deceptive means is an important test which we should consider. Further, the Code of Conduct has clearly enumerated guidelines as regards what constitutes “public interest” which leaves nothing to ones imagination. Further, the Code requires that the editor must present a full explanation to the Commission demonstrating how the public interest was served. This is an additional check on the unbridled powers of the media and also keeps its freedom in tact.
Similar to the provisions in United Kingdom, CNN in the US too has strict policy guidelines limiting the usage of hidden cameras. They have come out with a four point program which includes:
Firstly, the information or evidence to be gathered by a hidden camera should significantly contribute to a story that is of substantial value to society or of vital public interest.
Fishing expeditions are not permissible insofar as there should be some expectation of illegal behaviour or wrongdoing.
Before using a hidden camera a journalist must first try and exhaust alternatives for obtaining the interview or information and thus he should resort to them only in cases of last resort.
The prior approval of the senior editors and management is a perquisite and sometimes the permission of the federal agencies is also required.
Thus, the message sent out there is loud and clear: good television is not enough reason to use a hidden camera. However, in India we have no law governing sting operations, no uniform internal regulation, no broadcasting code of conduct and an ambivalent law on privacy. At the same time, India has traditionally been an opaque society with a prevalence of corruption. Thus, a prohibition of sting operations is not the solution.
This gives rise to the question of who decides what is ‘public interest’: it is the government (who would do so by attempting to pass the draconian Broadcasting Bill, 2006); the viewers, the courts (as the custodians of morality) or the management in the media companies (whose sole consideration would be the rise in TRP’s)? This question posed a challenge to the court, since Sunil Kulkarni, the man behind the sting operation, wanted to delay the publication of the sting by three weeks because he feared for his safety. Does the witness’s safety constitute public interest?
The problem with self regulation is that it is only part of the answer. After the Uma Khurana case, Barkha Datt and other media doyens vociferously argued for a self regulatory code which would govern their operations. However, public memory being short, this was soon forgotten. This issue came up again during the present case, within similar arguments being voiced. Nevertheless, this issue will again die down and resurface only in time for the next controversy. This raises the all important question of what, if any, should be the role of the government in regulating this highly competitive, TRP driven media industry?
5. On the Issue of Recusal
One of the issues the RK Anand judgment discusses is of a disturbing new trend in the judiciary. This issue comes up because of RK Anand’s application asking J. Sarin to recuse himself on a number of frivolous grounds. Recently Ram Jethmalani got J. BN Agarwal to recuse himself from the Uphaar tragedy case wherein the Ansal brothers sought bail. The reason for recusal was that Ram Jethmalani had previously criticized J. Agarwal and was therefore embarrassed to present arguments before him. Of course, J. Sinha who was next on the roster granted bail promptly. Another recent instance is of J. Pasayat who recused himself from the Nandi Corridor case on mere oral submission of the alleged apprehension of bias and without dealing with the recusal application when Shanti bhushan alleged that Since HD Gowda had been rapped by Judge Pasayat during an earlier hearing Gowda had "reasonable apprehension regarding likelihood of bias and want of impartiality on the basis of relevant material in his possession and having regard to the antecedent events". All these have been cited often as instances of “bench fixing” which has been seen as the new method of a litigant choosing his/her bench.
Clearly in this case, J. Aftab Alam takes a stand on this matter of Bench fixing. He follows up on Mr. Salve’s argument that the allegations made by RK Anand, though not entertained by the Bench, did in fact have an impact on his sentence. Mr. Salve contention was that RK Anand’s petition is a brazen attempt to browbeat the High Court and that the recusal petition is the reason why he was given only a token punishment. The Supreme Court agrees with this stand and while condemning the action deeply, it asks RK Anand to show-cause why his punishment must not be increased. The Supreme Court emphasizes that RK Anand has not shown any regret for his gross misdemeanor and the petition is an indication of him defying the High court’s authority. One can connect this stand of the Supreme Court with their statements earlier as to how a motivated application for recusal is bound to cause “hurt” to the judges. Agreed that such senior members of the judiciary must be shown respect, but does this attitude show us that these judges, who have been placed on such a high pedestal, can never be accused of bias? Both J. Sarin’s response to the application as well as J. Alam’s comments on the recusal petition are an indication of how aghast they are by this allegation. And while RK Anand’s attempt at Bench fixing must be condemned, an allegation of bias is taken to be akin to doubting the integrity of the judges and questioning the neutrality and freedom of the judiciary.
In the State of West Bengal & Ors. v. Shivananda Pathak & Ors((1998) 5 SCC 513), the Supreme court notes that “Much harm is done by the myth that, merely by taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.” This statement is quoted by J. Sarin in his lengthy response to the recusal application. In this context it is interesting to note both J. Alam’s as well as J. Sarin’s shock and outrage at an allegation of bias.
So what should the standard be for allegation of bias? When do we see it as a genuine concern and when is it an attempt at thwarting the court? I’d like to agree with the principles laid down in Ranjit Thakur v. Union of India (AIR1987 SC 2386), particularly the following statement. “As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the judge is not to look at his own mind and ask himself, however, honestly, “Am I biased”; but to look at the mind of the party before him.”
The Supreme Court criticizes the time and effort taken by J. Sarin to respond to the allegations. It is felt that the grounds on which recusal was asked for should have been rejected at a glance. Do judges have to spend their time in refuting the allegations and defending themselves? J. Sarin’s response to the petition can be said to be caustic and on the defensive. He repeatedly makes reference to the statement of RK Anand “It seems stars of both do not match” and derides the same. Do such sort of allegations lead to bad blood between the advocates and the judges. It must be mentioned that the lawyers know that most judges, hurt by the allegations will recuse themselves as seen in the case of both J. Pasayat and J. Agarwal. So it is an easy way out for the lawyer to get a favourable bench.
Soli Sorabjee believes that in a case of conflict of interest is the proper course is for the lawyer to recuse himself. Should this be the norm? In any case, in a case of clear “bench fixing” hopefully the bar will take a firm approach and judges will refute the allegation rather than recuse themselves.
-Aathira Menon
Megha Kaladharan
Reeba Muthalaly
Sneha Mohanty
Vrinda Bhandari
[1] Criminal Appeal No. 1393 of 2008.
[2] AIR 1995 SC 2348.
[3] (2004) 5 SCC 26.
On the issue of "bench-fixing" that Justice Alam was rightly incensed about, it is interesting to consider why and how lawyers have an incentive to fix these benches. Why would a lawyer want a matter shifted to a different bench? Mostly because she knows she is not going to win before the current bench, or is more likely to get a favourable order before another bench. How does she know that? Leaving aside corruption issues, it is because lawyers who practice regularly in a Court, know how individual judges tend to decide matters. That is why judges are given epithets like "hanging" judges v. "life" judges; "pro-landlord" judges v. pro-tenant judges, etc. This raises questions regarding the approach of judges to their function. Their personal predilictions obviously play the pre-dominant role in determining cases. It appears that legal rules and principles are not only indeterminate, they are besides the point all together. Judges appear to be making up their mind, and then picking out the principles that support their conclusion. The end result is that law is used as a justification for legalizing the personal morality of judges, and not as a tool for reasoning about the case. How, otherwise, can there be so much predictability about the outcome of a case before a particular judge that lawyers will go out of the way to fix benches? Of course, if the other explanation-that of judicial corruption- is the key here, that raises its own whole set of issues.
ReplyDeleteThis negative predictability of outcome has other consequences also. Those who cannot bully their way into getting their matter shifted to another bench, generally try to delay the case till the roster changes. This multiplies the ills of an already backlogged system. Therefore, while bench-fixing needs to be roundly condemned, there is need for judicial introspection on why it happens in the first place.
R K Anand has been found guilty in Sunil Nanda's case.You have nicely briefed the whole scenario.
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