THE ZAHIRA CONTEMPT CASE

TOWARDS A LEGAL CRITIQUE

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
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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."
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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!
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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.
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