Indira Jaising seeks expungement of SC remarks on criminal contempt in Judge Loya judgment

Senior Advocate Indira Jaising has moved the Supreme Court seeking expungement of remarks made by the apex Court, holding her prima facie guilty of criminal contempt for her submissions and conduct in the Judge Loya case..Senior Counsel Jaising had appeared for Admiral Laxminarayan Ramdas, a former Chief in the Indian Navy in the matter. She represented one among several petitioners seeking an independent probe into the death of trial judge BH Loya during the pendency of the Sohrabbudin fake encounter case..While dismissing this plea, the Supreme Court Bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud had remarked that the petitioners and their counsel had scandalised the Court by their conduct and are therefore guilty of criminal contempt of Court..Inter alia, the Court had observed,.“The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt…The conduct of the petitioners and the intervenors is, as we have indicated, lacking bona fides and reveals a misuse of judicial process.”.Jaising has now challenged these (and other similar remarks) as being erroneous findings and therefore liable to be expunged from the record. In her application filed through advocate Sunil Fernandes, she argues,.“A bare perusal of the Intervention Application and the Written Submissions of the Applicant will reveal that there is not a single allegation or averment that can be considered as constituting prima facie contempt or lacking in bona fides.”.Notably, Jaising has emphasised that she was well within her rights to point out the contempt of court committed by the Administrative Committee of the Bombay High Court in the conduct of the Sohrabuddin case, which Judge Loya was tasked with hearing shortly before his death..It has been pointed out that the Supreme Court itself had directed the Committee to ensure that the Sohrabbuddin case should be tried from beginning to end by the same judge..Despite this order, the Administrative Committee had proceeded to transfer Special CBI judge JT Utpat, who had originally been assigned the case. This was done in the middle of trial and without the permission of the apex Court. On this aspect, Jaising has now submitted,.“In the circumstances there is a clear prima facie case of disobedience of the order of this Hon’ble Court. No explanation was forthcoming from any one on the merits of the statement of facts as mentioned herein above.”.Jaising argues that she has a right to bring such wilful disobedience of Court orders to the notice of the Supreme Court. Exercising this right would not amount to criminal contempt..On the other hand, to hold the counsel prima facie guilty of contempt for the same, “would have, and does have, a chilling effect on the ability of counsel to present the case without fear or favour which they are professionally bound to do.”.She has also pointed out that Court’s adverse remarks with reference to the bona fides and the locus of the petitioner were made, despite its initial declaration that it would not go into the petitioners’ locus or the merits of the case..“This Hon’ble Court during the course of hearing had clearly indicated that the question of the locus of the Writ Petitioners and the interveners shall not be gone into and the parties are to argue on the merits of the matter. However in the said judgment this Hon’ble Court has extensively adverted to the bona fides of the Petitioners/Interveners herein, without giving an opportunity to argue on the bona fide and locus of the intervener or of counsel….… The mere raising of a contention of prima facie contempt by the Administrative Committee cannot in law be said to be on the part of the counsel, that too when no finding is rendered on the merits of the contention.”.Relying on AM Mathur v Pramod Kumar Gupta & Ors., it is contended that such adverse comments against a party or counsel without providing an opportunity to be heard is unwarranted, unjustified and deserves to be expunged..Moreover, Jaising has also objected to the sweeping generalised observations made by the Court about all the counsel, rather than discussing whether the submissions of each counsel tantamount to prima facie contempt..In addition to seeking the expungement of such unfounded and unilateral findings, Jaising has also prayed that a clarification be issued that she has not committed contempt of court in the case..Further, with regard to the conduct of the Bombay High Court’s Administrative Committee, she has prayed that Supreme Court call for appropriate records to ascertain the reasons for the transfer of Judge JT Utpat..Read copy of Application below: