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SCOI Analysis: How did advocate Rajiv Yadav, shouting slogans in SC yesterday, get away pre-contempt with mere apology?

Just before noon on 17 February, when the bench comprising justices J Chelameswar and AM Sapre was hearing ND Jayaprakash’s petition against the Ministry of Home Affairs and Delhi Police, seeking protection to the accused, his counsel and journalists in the Jawaharlal Nehru University (JNU) sedition case at the Metropolitan court, advocate Rajiv Yadav shouted the beginning of the “national song” vande mataram (I praise thee, mother), disturbing the court proceedings.

Although the bench took serious note of this, and summoned Yadav, it accepted his unconditional apology and closed the matter, by merely mentioning his name in the order. Earlier, advocates Rajeev Dhavan and Prashant Bhushan had persuaded the bench to mention his name in the order, while the bench seemed reluctant to do so.

The incident left many in the court to wonder whether the bench could have done more, by sending Yadav to jail at least for a brief period, as he did not later seem to have any regrets for his action outside of court when speaking to journalists later.

Ironically, around 20 years ago, the petitioner Jayaprakash himself had been detained during another court proceeding in the Supreme Court when the then chief justice of India, AM Ahmadi was hearing a case relating to the Bhopal gas disaster.

Jayaprakash, a prominent social activist and an alumnus of JNU, is also a well-known champion of the rights of victims and survivors of the Bhopal gas disaster. He recalled that Justice Ahmadi had disapproved of his oral submissions in the matter, when he rose to argue, when his advocate was not being allowed to make submissions.

“I did not shout slogans like Yadav, but I only tried to make oral submissions, when my advocate was being denied the opportunity to do the same. But Justice Ahmadi had then directed my detention till the conclusion of the proceedings for committing contempt of court,” Jayaprakash said.

Curiously, in its order issued yesterday, on 17 February, the bench was silent on whether Yadav had committed contempt of court.

Ït only said that there was a certain “commotion” as one of the members present shouted slogans at a pitch which is not normally permitted in court. It added that the person named Rajiv Yadav (advocate) who created the commotion, tendered an unconditional apology, and that the bench accepted it and closed the matter.

The bench’s silence on whether Yadav had committed contempt of court is interesting because Prashant Bhushan contended that it was contempt in the face of the court.

The contempt of court procedure is applicable where it is alleged, or appears to the court on its own view, that a person has been guilty of contempt committed in its presence or hearing [Section 14(1) of the Contempt of Courts Act]. This is also referred to as contempt in facie curiae.

The proceedings in contempt in the face of the court are generally initiated by the court and not by a third party, except in cases where the contumacious conduct went somehow unnoticed by the court, where a third party may bring the facts to the court’s attention.

Section 14(1) of the Act contemplates that this entire proceeding may be completed on the same day on which the incident occurred, or as early as possible thereafter. The Supreme Court has emphasised that “the time factor is crucial”, since the main case cannot be effectively heard till the contempt proceedings are concluded.

More significant, Section 14(1) uses the word “shall”, which indicates that the court is bound to follow the procedure prescribed in clauses (a) to (d) of that sub-section.

The facts of 17 February incident in court No.5 suggest that the ingredients of Section 14(1) were attracted, when the court found Yadav guilty of contempt committed in its presence or hearing, upon its own view, although it did not mention this in its order.

The same provision, however, adds that the court may cause such person to be detained in custody, and, at any time before the rising of the court, on the same day, or as early as possible thereafter, shall -

(a) cause him to be informed in writing of the contempt with which he is charged;

(b) afford him an opportunity to make his defence to the charge;

(c) after taking such evidence as may be necessary or as may be offered by such person and after hearing him, proceed, either forthwith or after adjournment, to determine the matter of the charge; and

(d) make such order for the punishment or discharge of such person as may be just.

Therefore, the procedure adopted by the bench on 17 February raises the question, whether it is consistent with the Contempt of Courts Act, 1971.

The Act is silent on whether the court can accept an unconditional apology offered by the accused and close the matter, without mentioning even the finding of guilt against the accused.

The inconsistency of the procedure adopted by the bench with the Act arises because the accused appears to have offered the unconditional apology to the bench only to evade the rigour of the law, as outside the court, he reportedly said he had no regrets for what he did inside the court.

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