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Rafale row: Contempt plea against Rahul Gandhi seems more concerned about 'prejudice' caused to Modi

A sitting member of Parliament belonging to the Bharatiya Janta Party (BJP) has filed a criminal contempt petition against Rahul Gandhi for stating that the "Supreme Court in its order of 10 April, 2019 had held that chowkidar chor hai (The 'guard' is the thief')". The factually incorrect statement made in an election rally appears to have been made the subject matter of the contempt petition for eliciting some adverse response from the Supreme Court against the alleged contemnor, whose "chowkidar chor hai" jibe has been making headlines and gaining traction in election rallies, as well as on social media, much to the chagrin of BJP leaders. In fact, the BJP has also approached the Election Commission with a complaint against the "chowkidar chor hai" campaign of Congress party, and has even succeeded in getting a favourable order to ban it in Madhya Pradesh.

Sensing the BJP’s game plan in the Supreme Court, the Congress president expressed regret for the erroneous statement at the first available opportunity by filing an affidavit to that effect. By doing so, he has been able to avoid, at least for the time being, any scathing remarks from the Supreme Court, which would have been lapped up by his political opponents for electoral advantage. The regret expressed by Rahul in the affidavit was confined to him incorrectly attributing the words "chowkidar chor hai" to the Supreme Court. The said affidavit was the subject matter of considerable legal debate in the hearing held on 23 April.

The 10 April order had been passed in response to the review petition in the Rafale case, and was confined only to the rejection of the central government’s preliminary objection to admissibility of certain documents on the basis of which the review petition was filed. The erroneous imputation to the Supreme Court was not supported by the contents of the 10 April order, and the same was quite evidently made for electoral gains in a speech given by Rahul in his constituency.

 Rafale row: Contempt plea against Rahul Gandhi seems more concerned about prejudice caused to Modi

File image of Congress president Rahul Gandhi. Twitter/@INCIndia

From what is known in the public domain about the 23 April hearing, it appears that the petitioner in the contempt petition may be trying to get a blanket restraint order against Rahul, so that he cannot use the political slogan in his electoral speeches, statements to the media and tweets.

The petitioner’s pitch before the Supreme Court was to highlight the incessant usage of the slogan "chowkidar chor hai" by Rahul Gandhi. The petitioner’s counsel is stated to have submitted that “though Gandhi is not saying now that the Supreme Court had said that chowkidar chor hai, he is still continuing with the expression in his election campaign”. Such a submission reveals the more painful grievance of BJP, arising from the continued usage of the unpalatable slogan by an irrepressible political opponent, who is at his formidable best at a time when the BJP’s own supreme leader’s popularity is on the wane. Such an inference is further strengthened by the lack of any other submission advanced on behalf of the petitioner pertaining to the alleged contempt of court that was occasioned as a result of Rahul's statement.

Though Rahul, in his affidavit, has expressed regret for attributing the affirmation of his political slogan to the court’s order of 10 April, he has defended his right to use the slogan itself, stating that it is his belief that the Rafale deal is a “tainted transaction” manifesting “brazen abuse of executive power” by the central government, and the same must be investigated by a Joint Parliamentary Committee (JPC).

The Supreme Court must be wary of any attempt by the petitioner to seek a dilution/negation of a political leader’s right to electoral sloganeering. A general objection to a political slogan is quite clearly beyond the scope of the ongoing contempt proceedings and must not be entertained, particularly at a time when even a casual observation by the the highest court of the land is likely to become the subject of news headlines and have electoral ramifications.

The allegation against Rahul is that his statement that the "Supreme Court has held that chowkidar chor hai" amounts to criminal contempt of the Supreme Court because there was no such observation or finding in the 10 April order. Whether this allegation holds any water needs to be examined in the light of the definition of “criminal contempt” under Section 2(c) of the Contempt of Courts Act, 1971:

“criminal contempt” means 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) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(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;”

It is hard to point out how the Congress president's statement fits in any of the above requirements. Though the statement is factually inaccurate, it is inadequate to even prima facie satisfy the high threshold of the statutory definition of “criminal contempt”. The high statutory threshold is further underscored by Section 13(1) of the Contempt of Courts Act 1971, which confines the court’s power to punish for contempt by imposing a sentence to only such cases where the “contempt is of such a nature that it substantially interferes, or tends substantially to interfere with the due course of justice.” Consistent with the said statutory requirement, the Supreme Court has often emphasised that criminal contempt proceedings are essentially quasi-criminal in nature and the requirement of standard of proof is similar to that of any other criminal proceeding. In other words, the statutory ingredients of the offence of criminal contempt must be established beyond reasonable doubt.

It is hard to imagine that Rahul's statement caused or was intended to cause any interference with due course of justice. In fact, if the contents of the contempt petition, as mentioned on some websites, are to be believed, the petitioner has alleged that Rahul's statement was intended “to prejudice the public against Sh Narendra Modi”. Even if such prejudice against the prime minister is created in the minds of the people due to the statement, it is grossly inadequate to allege criminal contempt, as it neither "scandalises the authority of the court" nor "prejudices any judicial proceeding" nor "interferes/obstructs with administration of justice."

It appears that the contempt petitioner is more concerned about the prejudice the statement is likely to cause to Narendra Modi in the minds of the people, at a time when political parties are fighting a no-holds-barred battle for electoral gains.

An order in the form of a blanket ban on uttering the slogan "chowkidar chor hai" would certainly be an order with wide electoral ramifications. The contempt petitioner may well be aiming for such an order, as not only does her petition allude to the statement being aimed at prejudicing the public against the prime minister, she is also not satisfied with the admission of the mistake and expression of regret by Rahul Gandhi, which should have been sufficient in ordinary circumstances to bring the matter to a close.

Representational image. AP

Representational image. AP

The statement in question was, at the most, an instance of erroneous reporting of the Supreme Court’s order by Rahul to the electorate he was appealing to, and should have, therefore, resulted in the contempt proceedings being dropped once such misreporting was admitted on affidavit and regret expressed for the same.

In his affidavit before the court, the Congress president has, in fact, admitted that he had not read the order at the time of making the statement. But even assuming that he had read the order, and then made the statement, it should still only be a case of incorrect interpretation of the Supreme Court’s order.

Such misinterpretation would be at par with the oft-repeated assertion by BJP leaders that the Supreme Court’s order of 14 December, 2018, passed in the petitions seeking an independent probe into the Rafale deal, has given a “clean chit” to the Modi government. Such an interpretation is not supported by the wording of the order, in which the Supreme Court expressed its disinclination to order a probe in view of its limited jurisdiction under Article 32 of the Constitution of India.

Given the fact that the controversy pertained to a sensitive matter relating to the country’s defence, the scope of Article 32 was interpreted more restrictively than in ordinary circumstances. The Supreme Court, taking note of the fact that the writ petitions brought into question the procurement of fighter jets that were crucial to the nation’s sovereignty, observed that the challenge to the Rafale deal will have to be scrutinised “keeping in mind the confines of national security”, which admitted of a “somewhat constricted power of judicial review.” Accordingly, the Supreme Court held that it could not “sit as an appellate authority to scrutinise each aspect of the process of acquisition.”

On the issue of pricing of the Rafale jets, the court observed that “the government has not disclosed pricing details, other than the basic price of the aircraft, even to the Parliament, on the ground that sensitivity of pricing details could affect national security, apart from breaching the agreement between the two countries.” Such explanation given by the government for non-disclosure of pricing details was accepted by the court, presumably because it was under the impression that “the pricing details have, however, been shared with the Comptroller and Auditor General, and the report of CAG has been examined by the Public Accounts Committee”. Such an impression has now been revealed to be incorrect, as the government itself has approached the court with a clarification that neither had the pricing details been shared with the CAG, nor had the CAG report been approved by the Public Accounts Committee of Parliament.

The above aspects of the Supreme Court’s order of 14 December, 2018 can hardly be seen as a “clean chit” to the government, or its exoneration on merits, on the highly controversial Rafale deal. The Supreme Court evidently undertook a very limited scrutiny of the issues before it. All these issues are likely to be revisited by the Supreme Court in the review petitions that have been admitted against the order of 14 December, 2018, and may ultimately expose the brazenly misleading public narrative of “clean chit” conjured up by BJP leaders.

It is quite probable that if the standards of misrepresentation of the court order adopted in the contempt petition against Rahul Gandhi are applied to the declaration of a “clean chit” from the Supreme Court in the Rafale deal, there may well be a case of criminal contempt against several BJP leaders, including the prime minister himself.

The courts have always been loath to their misuse by litigants for oblique motives, and it is, therefore, imperative that the scope of the subject contempt proceedings is not allowed to be expanded for settling political scores. It is also important to note that contempt proceedings have always been regarded as an issue between the court and the alleged contemnor, with the petitioner’s role being limited to only bringing the facts constituting criminal contempt to the court’s notice.

The author is an advocate on record at the Supreme Court.

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Updated Date: Apr 28, 2019 17:27:11 IST