UNIVERSITY INSTITUTE OF LEGAL STUDIES

UNIVERSITY INSTITUTE OF LEGAL STUDIES

Zahira Habibulla H. Sheikh v/s State of Gujarat2006 SCDate of judgment: 08/03/2006Bench: Arijit Pasayat & H.K. Sema

Acknowledgment

I would like to express my special thanks of gratitude to my teacher Prof Amrit Kaur who gave me the golden opportunity to do this wonderful project on the topic Zahira Sheikhs Case, which also helped me in doing a lot of Research and I came to know about so many new things. I am really thankful to her. I would also like to thank my parents and friends who helped me a lot in finishing this project within the limited time.

I am making this project not only for marks but to also increase my knowledge.THANKS AGAIN TO ALL WHO HELPED ME.

Contents

1. List of Abbreviations----------------------------------------------- 4 2. Table of Cases-------------------------------------------------------- 53. Introduction---------------------------------------------------------- 64. Contempt of Court------------------------------------------------- 7 -9 5. Judgment-------------------------------------------------------------10-116. Supreme Court Remarks-----------------------------------------12-137. Purpose------------------------------------------------------------------148. Webliography ------------------------------------------------------- 15

List of Abbreviations

AIRAll India Reporter Honble Honorable etcet cetera i.e.id est (that means) r/w read with S. Section LJ Law JournalRe. Reference US United StatesNo. NumberOrs. OthersCri. Criminalp.Pagew.e.f with effect fromPC Privy CouncilFC Federal CourtSCSupreme CourtSCCSupreme Court Casesv. VersusVol. VolumePat. Patna & and

Table Of Cases

1. Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 4062. Re Arundhati Roy, AIR 2002 SC 1375.3. P.N. Duda v. P. Shiv Shankar, AIR 1988 SC 1208.4. Supreme Court Bar Association case (1998) 4 SCC 4095. Zahira Habibullah Sheikh v. State of Gujarat AIR 2006 SC 13676. Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court AIR 1954 SC 186

Introduction

Zahiras case is the landmark judgment of the Honble Supreme Court of India on law relating to the Contempt of Court. The case is commonly referred as the Best Bakery Case. The incident involved the burning down of the Best Bakery,a smalloutlet in the Hanuman Tekri area of Vadodara as a part of communal riotson March 1, 2002. Twelve Muslims and two others were burnt alive in the premises of the bakery, "allegedly by a Hindu mob".

Zahira H. Sheikh, a 19-year-old during the incident, was a key and notable witness. She stated that she saw her family members burn to death.On March 23, however, 37 of the 73 witnesses, including Sheikh, turned hostile, saying they had seen nothing on the night of the attack. Hence, all accused were acquitted for the lack of evidence. On July 11, 2003,Zahira testified before the National Human Rights Commissionthat she was forced to change her statement. On August 1 the same year, the NHRC filed a petition in the Supreme Court asking for a retrial in a Court outside Gujarat. The Supreme Court directed a re-trial in Maharashtra. Again statements were changed by Zahira. She stated that the judgment passed by the Gujarat Court was correct. The prosecution declared Zahira Sheikh to be ahostile witness. Also a tape byTehelka was released whichclaimed that Zahira had been bribed by anMLA.

Masjlis-e-Shura, an apex decision-making body of Muslims, consequently declared Sheikh a 'dissembler', effectively ousting her from the Muslim community. The organization gave as its reason that Zaheera was "tarnishing (the community's) image by making false statements." The Supreme Court held her guilty of perjury and was punished with both fine and imprisonment. The case has been regarded as countrys one of the most controversial and high profile trials.[footnoteRef:1] [1: http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=15201/5 contempt of court]

Contempt of Court

In a democracy people should have right to criticize judges. The purpose of should not be to upheld the majesty and dignity of the court but only to enable it to function.This project is about contempt of court. It concerns the constitutional provisions empowering the Supreme Court (Art. 129) and the High Courts (Art. 215) to punish for contempt of themselves (and declaring them to be courts of record). The relation of these provisions (primarily Article 129) with the Contempt of Courts Act, 1971 has been discussed. This legislation was enacted by virtue of the power vested in the Parliament under entry 77 of list I.The Supreme Court has held that the power to punish for contempt is an inherent power of the court of record. This power cannot be curtailed by any law made by the Parliament. It cannot be taken away or conferred afresh by virtue of entry 77, list I.[footnoteRef:2] [2: Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 406]

In this light, the relationship between the Contempt of Courts Act and the contempt powers contained in the constitution assumes significance. The bearings of this relationship on separation of powers and judicial independence are pivotal to the existence of a healthy democracy and shall be discussing this as well as the conflict between the fundamental right of speech and expression and the courts power of punishing for criminal contempt.

Contempt may be civil or criminal contempt.[Section 2(a) of Contempt of Court Act,1971]Civil contempt as defined in the Section 2(b) of the Act means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court. Thus it is essential that civil contempt of a court may be punishable in order that the judiciary is able to perform its functions in a democratic state. The power of civil contempt is the only weapon in the courts hand to enforce its writ. Art. 141 lays down that law declared by Supreme Court shall be binding on all courts and hence will be the law of the land.It is easy to see then that the power to punish for civil contempt is of great essence towards the maintenance of judicial independence.Criminal contempt is defined in the Section 2(c) of the Act as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which(i) Scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any court;(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner; DECISION IN ARUDHATI ROY AND P.N.DUDA In the case of In Re Arundhati Roy[footnoteRef:3] the court discussed the question of fundamental rights vis--vis criminal contempt of the Court and said that reasonable restrictions could be imposed in view of Article 19(2). It observed that since Arundhati Roy was connected with the Narmada Bachao Andolan, she was an interested party and hence her actions could not be accepted as having been undertaken for a public cause. Though she was punished for using contumacious language in her show cause reply, yet her action of protesting against the Supreme Court verdict in the Narmada case was also seen as contumacious-which the court magnanimously chose to let go unpunished. The court also seemed to suggest that fair criticism could flow only from a person qualified to make that criticism and hence Arundhati Roy, who had no training or research in law, could not make a fair criticism. [3: AIR 2002 SC 1375.]

This is how the court distinguished the situation from the case of P.N. Duda v. P. Shiv Shankar[footnoteRef:4]. Here the alleged contemnor was minister for law and a former Chief Justice of a High Court so his words were held not amounting to contempt though he had suggested a class bias in the Supreme Courts decisions. The striking contrast between these two cases poses a looming question. If an uneducated poor citizen (say for example a tribal affected by the Sardar Sarovar dam) wants to protest against the Supreme Court, how, if at all, can he do it? A dharna outside the Supreme Court will most definitely be regarded as contempt, it seems. This attitude is against the fundamental right of speech and expression. [4: AIR 1988 SC 1208.]

Judgment in Zahira Habibullah Sheikhs Case

Coming to the relationship between the inherent powers of a court of record and the Contempt of Courts Act, as mentioned above Parliament cannot take away this inherent power or confer it afresh by legislation. However, the procedure for a contempt of court proceeding and the extent of punishment can be prescribed by Parliament under Article 142(2). This was observed in the Supreme Court Bar Association case[footnoteRef:5]. Section 12(1) of the Contempt of Courts Act prescribes the maximum punishment for contempt of court which is a fine of two thousand rupees or simple imprisonment of six months or both. The catch is that the Supreme Court has interpreted the Act as being applicable to High Courts but not to the Supreme Court. This was reiterated and clearly down in the case of Zahira Habibullah Sheikh v. State of Gujarat[footnoteRef:6]. [5: (1998) 4 SCC 409] [6: AIR 2006 SC 1367]

The judgment of Justice Arijit Pasayat, in paragraph 19 contains the following lines:Since, no such law has been enacted by Parliament, the nature of punishment prescribed under the Contempt of Courts Act, 1971 may act as a guide for the Supreme Court but the extent of punishment as prescribed under that Act can apply only to the High Courts, because the 1971 Act ipso facto does not deal with the contempt jurisdiction of the Supreme CourtThe judgment also states that the case of Sukhdev Singh Sodhi v. Chief Justice and Judges of the PEPSU High Court[footnoteRef:7] concerning the maximum punishment which a contemnor may get deals with the High Courts and not the Supreme Court. [7: AIR 1954 SC 186]

In my opinion, the Act is ambiguous about this aspect but still does not clearly afford such an interpretation. Nowhere is it mentioned in the Act that it is not applicable to the Supreme Court. This interpretation effectively means that the Supreme Court may award any punishment to a contemnor! This obviously could not have been the intention of Parliament when it enacted this legislation. The doctrine of separation of powers means (so far as the judiciary and the legislature are concerned) that the legislatures domain is to make laws while it is the job of the judiciary to interpret these laws and to administer justice in accordance with those laws. The interpretation that the Supreme Court has given to the Contempt of Courts Act upsets this principle because it means that there is no law in accordance with which the Supreme Court shall punish for contempt.In the aforesaid background, we direct as follows:(1) Zahira is sentenced to undergo simple imprisonment for one year and to pay cost of Rs.50,000/- and in case of default of payment within two months, she shall suffer further imprisonment of one year;(2) Her assets including bank deposits shall remain attached for a period of three months. The Income Tax Authorities are directed to initiate proceedings requiring her to explain the sources of acquisition of various assets and the expenses met by her during the period from 1.1.2002 till today. It is made clear that any observation made about her having not satisfactorily explained the aforesaid aspects would not be treated as conclusive. The proceedings shall be conducted in accordance with law. The Chief Commissioner, Vadodara is directed to take immediate steps for initiation of appropriate proceedings. It shall be open to Income tax authorities to direct continuance of the attachment in accordance with law. If so advised, the Income Tax Authorities shall also require Madhu Srivastava and Bhattoo Srivastava to explain as to why the claim as made in the VCD of paying money shall not be further enquired into and if any tangible material comes to surface, appropriate action under the Income Tax Law shall be taken notwithstanding the findings recorded by the Inquiry Officer that there is no acceptable material to show that they had paid money, as claimed, to Zahira. We make it clear that we are not directing initiation of proceedings as such, but leaving the matter to the Income Tax Authorities to take a decision. The Trial Court shall decide the matter before it without being influenced by any finding/observation made by the Inquiry Officer or by the fact that we have accepted the report and directed consequential action.Supreme Court Remarks

* The nature of relief sought and the reasons assigned are such that even under the pretext of filing a review such an exercise cannot be undertaken, virtually for re-hearing and alteration of the judgment because it is not to the liking of the party, when there is no apparent error on record whatsoever to call for even a review. The said move is clearly misconceived and nothing but sheer abuse of process, which of late is found to be on the increase, more for selfish reasons than to further or strengthen the cause of justice.*Wishful thinking virtually based on surmises too, at any rate is no justification to adopt such undesirable practices. If at all it should be for weighty and substantial reasons and not to exhibit the might or weight or even the affluence of the party concerned or those who represent such parties when they happen to be public authorities and institutions.*Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well.*The extent of falsehood to which the applicant-State has gone demonstrates the deterioration and falling standards in preparation and filing of papers in Court.The monstrosity of the manner in which the Courts below dealt with the matter, though called for stronger and severe handling, we desisted from doing so, keeping in view a fond hope that all those concerned would at least attempt to show better performance, greater circumspection and desired awareness and dispassion to do real, effective and substantial justice.*Another aspect, which throws considerable doubt about thebona fidesof the State government and its true colours, is the veiled threat of legal action for changed statements and credibility of Zahira as a witness. It sounds more like a stand of the defence and not that of the prosecutor. Reading of the statements in this regard gives an impression as if in the eyes of the state Zahira is the accused who should be in the dock and not the persons who are made accused in the case.* That the State government sympathizes more with the accused than the victims becomes crystal clear when one looks at the State's stand that the ramifications of the transfer are serious insofar as "the accused" are concerned.We express our strong displeasure to such exhibition of recklessness and lack of rectitude shown in filing the application with such false and make believe statements in abundance.At the least the aforesaid aspects lead to the inevitable conclusion that the application is thoroughly misconceived, a sheer abuse of process of law and deserves to be dismissed with exemplary costs. But we refrain from imposing any cost.

Purpose

The best shield and the amour of a judge in his reputation of integrity, impossibility, and learning. Any judge will hardly need to use the contempt power. I would like to say that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt of court not to vindicate and upheld by the majesty and dignity of the court. not threat of the using but only be used in a rare and exceptional situation where, without using it, it becomes extremely difficult for the court to function . In such situation, the contempt power must not be used if a mere threat to use it suffices.The Court must use the contempt power to preserve the respect and faith that it enjoys and not in a manner that derogates its status in the eyes of the people. Citizens must continue to respect the law and the weapon for defending this respect.

Webliography

1. http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=15201/52. ://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=1520 3/53. http://www.vakilno1.com/judgements/companiesact/1999-98compcas0695sc.html4. http://indiankanoon.org/doc/1067991/

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