TEHSEEN POONAWALLA versus UNION OF INDIA & ANR. on 26 September 2018

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SUPREME COURT REPORTS [2018] 12 S.C.R. 204

[2018] 12 S.C.R.

TEHSEEN POONAWALLA

A

v.

UNION OF INDIA & ANR.

(MA No.1607 of 2018)

BIn

(IA Nos.14870-14871 of 2018)

In

(Writ Petition (C) No.19 of 2018)

CSEPTEMBER 26, 2018

AND IN THE MATTER OF :

ADMIRAL MR. LAXMINARAYAN RAMDAS (RETD.)

DAND IN THE MATTER OF :

MS. INDIRA JAISING

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[DIPAK MISRA, CJI, A. M. KHANWILKAR AND

DR. D.Y. CHANDRACHUD, JJ.]

Practice and Procedure – Judgment pronounced in TehseenPoonawalla versus Union of India and Anr. [W.P. (C) No. 19 of2018] on 19[th] April 2018 as reported in [2018] 9 SCR 1 – Remarkspurportedly made by Supreme Court that the conduct of the counselfor the petitioners and intervenors therein prima facie constitutedcontempt of court – Miscellaneous application filed for expunging/deleting the said remarks as against the present applicant/counsel,who appeared for one of the intervenor therein – Held: Paragraph75 of the judgment in Tehseen Poonawalla case records the submissionwhich was urged by the applicant namely, that contempt noticesshould be issued to the Administrative Committee of the High Court– The fact that such a submission was made is not in dispute – Infact, the said submission has also been repeated in the presentapplication, as originally filed – Further, present applicationproceeds on the basis that the observations which were made inregard to the conduct of the petitioners and intervenors attach to the applicant personally – If the applicant identifies with theintervenor, that is a matter of perception for applicant/counsel –Findings of Supreme Court were based on what was argued duringthe course of the hearing – Miscellaneous Application accordinglydisposed of.

CIVIL ORIGINAL JURISDICTION : M. A. No. 1607 of 2018in I.A. Nos. 14870-14871 of 2018 in Writ Petition (Civil) No.19 of 2018.

Under Article 32 of the Constitution of India.

Dr. Abhishek Manu Singhvi, Mukul Rohatgi, Sr. Advs., SunilFernandes, Ms. Astha Sharma, Amit Bhandari, Ms. Nupur Kumar,Ms. Anju Thomas, Ms. Priyansha Sharma, Paras Nath Singh, NishantR. Katneshwarkar, Advs. for the appearing parties.

The Order of the Court was passed by

DR. DHANANJAYA Y. CHANDRACHUD, J. 1. Ms IndiraJaising has moved a Miscellaneous Application seeking the followingreliefs :

“a) Issue appropriate order or direction expunging/deleting theremarks made against the counsel for present intervenor/applicantherein that the conduct of the counsel/applicant herein amountedto contempt or prima facie contempt of court, namely thefollowing :

“74. The present case is indeed a case in point. Repeatedly, counselfor the petitioners and intervenors have attempted to inform thecourt that they have no personal agenda and that they have institutedthese proceedings to protect judicial independence. An aura ofgood faith has been sought to be created by submitting that thetrue purpose of seeking an inquiry into the circumstances relatingto the death of Judge Loya is to protect the district judiciary(…)”

“75.[…] Ms Jaising has joined the fray by requesting that thiscourt to issue contempt notices to the Administrative Committeeof the Bombay High Court…”

“76. […] The conduct of the petitioners and the intervenorsscandalises the process of the court and prima facie constitutescriminal contempt…”

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“78. [...] The conduct of the petitioners and the intervenors is, aswe have indicated, lacking in bona fides and reveals a misuse ofjudicial process.”

A

b) Issue appropriate order or direction issuing a clarification thatthe counsel for the present intervener/applicant herein has notBfurthered any submissions or engaged in conduct which mayamount to contempt of Court if it so deems fit;

c) Call for High Court of Bombay for the records of the meetingof administrative committee of the High Court dated 25.06.2014to ascertain the reasons for transfer to Judge Utpat, and toascertain whether the consent of this Hon’ble Court was obtainedor whether this Hon’ble Court was kept informed that Judge Utpatwas being transferred;”

C

In the batch of cases which was adjudicated upon in the judgmentof this Court dated 19 April 2018 Ms Jaising represented an intervenorD(Admiral Ramdas).

2. Dr Abhishek Manu Singhvi appearing on behalf of the applicantsubmitted that whatever be the conduct of the other learned counselwho appeared on behalf of the petitioners and intervenors before thisCourt, Ms Jaising has had no intention to make any submission thatEwould denigrate or scandalise the judiciary. It was urged that in makingthe submission about the Administrative Committee of the Bombay HighCourt she has not scandalised the judiciary and that neither the writtensubmissions nor the oral submissions would amount to scandalising theprocess of the Court. Dr Singhvi urged that the observations containedin paragraphs 74, 75, 76 and 78 of the judgment (extracted in prayerFclause (a) above) would appear to give the impression that all counselbefore the Court had made the same submission, though each of thearguing counsel had urged distinct submissions. It has been submittedthat Ms Jaising has a standing of over five decades at the Bar and thather track record would indicate anything but a desire to denigrate theGjudiciary.

3. Mr Mukul Rohatgi, learned senior counsel appearing on behalfof the State of Maharashtra opposed the application. Learned counselsubmitted that each one of the submissions attributed to Ms Jaising wasin fact urged by her in the course of the proceedings. Mr Rohatgi drewthe attention of the Court to prayer clause (c) of the Miscellaneous H

Application by which the records of the meeting of the AdministrativeCommittee of the High Court dated 25 June 2014 are sought to besummoned to ascertain the reasons for the transfer of Judge Utpat, andto ascertain whether the consent of this Court was obtained (and whetherit was kept informed of his proposed transfer). Mr Rohatgi submittedthat prayer (c) is indicative of the fact that the Miscellaneous Applicationhas not been filed to pursue her own interest as counsel practicing beforethis Court but to revive the controversy which has been settled by thejudgment of this Court.

4. Faced with the objection raised by Mr Rohatgi in regard toprayer clause (c) of the application, Dr Singhvi submitted in the courseof his rejoinder that the prayer is being given up. It would be necessaryto record Mr Rohatgi’s submission that if, as submitted by Dr Singhvi,the inclusion of prayer clause (c) was inadvertent, the statement that theprayer is being given up ought to have been made before submissionscommenced, prior to an objection being raised on his behalf.

5. The first aspect of the matter which needs to be noted is thatparagraph 75 of the judgment records the submission which was urgedby the applicant namely, that contempt notices should be issued to theAdministrative Committee of the High Court. That such a submissionwas made is not in dispute. In fact in paragraph 9.3 of the MiscellaneousApplication, the applicant has repeated the submission, reiterating that itwas urged before this Court. Prayer clause (c) of the application as itwas originally filed was based on that submission.

6. The application proceeds on the basis that the observationswhich were made in regard to the conduct of the petitioners andintervenors attach to the applicant personally. In paragraphs 76 and78, this Court has adverted to “the conduct of the petitioners andthe intervenors” (emphasis supplied). If the applicant identifies withthe intervenor, that is a matter of perception for counsel. The observationsof the Court advert to the conduct of the petitioners and intervenors.The findings of this Court are based on what was argued during thecourse of the hearing.

7. The Miscellaneous Application is accordingly disposed of.

Divya Pandey

MA disposed of.

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