Opinion:BJP Lawyer's Politics on Jagan's letter 'with Contempt'

Andhra Pradesh: Chief Minister Jagan Mohan Reddy created a sensation by publicising allegations against Supreme Court Judge and tried to check High Court's fury of hostile order. Its not his allegations but their publicity caused all the disturbance. Then what Ashwin Kumar Upadhyay is doing? Same strategy, same policy and similar politics.

The Attorney General declined again to consent to prosecute AP CM Jagan Mohan Reddy. On 6 th October alleging nexus and lack of objectivity in AP judiciary, and undue influence from sitting judge of Supreme Court N V Ramana, the AP Chief Minister Jagan Mohan Reddy had requested the CJI to look into the matter and consider initiating steps "as may be considered fit and proper to ensure that the state judiciary's neutrality is maintained". The chief minister had alleged that the senior apex court judge had proximity to TDP chief Chandrababu Naidu and that a "former judge of the Supreme Court placed this fact on record". Later the letter and the attached documents were released to the media on 10th October.

Ashwini Kumar Upadhyay, a BJP party member and Supreme Court advocate wrote on 25 th October 2020 to Attorney General of India seeking consent to prosecute AP CM for contempt of court. On Nov 2, describing the time chosen to publicise the complaint with objectionable points as 'suspect', the AG did not agree to initiate contempt proceedings. The AG Mr KK Venugopal left the field open to the CJI before whom the impugned controversial complaint is placed.

At the same time, he did not endorse the letter of Chief Minister and publicity given to it. Mr Venugopal found the statements in letter objectionable, its timing is suspect and prima facie, the conduct of CM and Principal Advisor to CM was contumacious. However, he felt it appropriate not to interfere as the CJI was seized of the matter. Entire basis of petition of Upadhyay is the 'complaint' of the Chief Minister, which is already placed before the CJI, hence the AGI thought not proper for him to initiate another proceeding.

The AG has reiterated that the CJI is seized of the matter and it would not be appropriate for him to grant consent and preclude the determination of the CJI on the matter. He said, "As you are no doubt aware, contempt is a matter between court and contemnora, and no person as of right can insist upon the initiation ofcontempt proceedings. For these reasons, I cannot accede to your request for reconsideration."

The application for consent to initiate criminal contempt filed by BJP leader and lawyer Ashwini Upadhyay was declined by the AG on Monday. The AG had opined that the conduct of the Andhra CM and his advisor was "prima facie contumacious" but as the Chief Justice of India is "seized of the matter" it would not be appropriate for him to deal with the same.

Subsequently, Upadhyay had sought reconsideration of his decision, stating that the CJI is seized of a complaint BY Sh. Jagan Mohan Reddy against the judiciary, NOT a complaint of contempt AGAINST him and his advisor. Responding to this, the AG has said, the very crux of the alleged contempt lies in the contents of the letter written by Y.S. Jaganmohan Reddy to the Chief Justice of India, and thus it is open to the Supreme Court to take up the matter of contempt suo motu as provided by the Contempt of Courts Act, and the rules made the re-under."

Private communication

Upadhyay had also claimed that the letter sent to the Chief Justice was a "private missive" and it was left to the CJI alone to determine whether it constituted contempt. However, once the Principal Advisor to the Andhra CM called a press conference, read out a separate statement and released the letter to the media and public, it ceased to be a private matter.

He further claimed that there was an additional actor and an additional statement made during the press conference and now the public have been given the impression that Judges of the Supreme Court and High Courts are involved in influencing cases. These subsequent facts are not a part of the complaint pending with the Chief Justice.

To this the AG said, "the allegedly contumacious statements were contained in a letter written directly to the Chief Justice of India. It is no doubt true that the said letter was released subsequently to the press, as I myself had pointed out in my letter to you. I have myself watched the video of the press conference and I find that nothing extra was said other than what was already there in the letter which was addressed to the Chief Justice. The letter released to the press and enclosed in your original request for consent was therefore the subject matter of the contempt. Nowhere, is the letter, copy of which has been enclosed by you, marked confidential. In other words, the letter cannot be described as a private missive. It was widely being reported by the press. Hence there is no reason for me to change my mind."

The AG further clarified that his refusal to give consent for initiation of contempt does not preclude Upadhyay from bringing these facts to the notice of the Judges of the Supreme Court with a prayer for initiation of suo motu action.

The Attorney General said he was of the opinion that "the timing itself of the letter, as well as its being placed in the public domain through a press conference could certainly be said to be suspect, in the background of the order passed by Justice NV Ramana dated September 16, 2020 directing pending prosecution of elected representatives to be taken up and disposed of expeditiously". Mr Venugopal described conduct of Jagan Mohan Reddy' and his advisor as "prima facie contumacious". The word contumacious means stubbornly or wilfully disobedient to authority. Indeed, a very serious comment. He also found their act of placing the allegations against judiciary in public domain as objectionable. Finally, the Attorney General declined consent to initiate contempt proceedings against them saying CJI SA Bobde "seized of the matter". Nowhere the AG has said that these acts would amount to 'contempt of court', though he found them objectionable and disobedient to authority.

Another important point to be noted at this stage is that declining consent does not mean a clean certificate to Jagan Mohan Reddy or Ajay Kallam, and vice versa. The comment that timing of writing the complaint in the wake of the SC Bench's order for speedy trial of criminal cases where political leaders were charged, "In this background, prima-facie, the conduct of the said persons is contumacious. However, what has to be noted is that the entire case of contempt arises out of the letter dated 6.10.2020 written by the Chief Minister directly to the Chief Justice of India and the subsequent press conference held by Shri Kallam. The Chief Justice of India is, therefore, seized of the matter, Hence, it would not be appropriate for me to deal with the matter. For these reasons I decline consent to initiate proceedings for criminal contempt of Supreme Court of India", Venugopal said.

Despite all these significant factors behind the letter of Upadhyah, it was appropriate for the Attorney General not to give consent to contempt proceedings. It has several reasons. First, AP CM's letter is basically a representation and request. It may also be considered as a complaint because of serious allegations mentioned therein. The theme and scheme of our Constitutional system and the mechanism devised by Supreme Court has provided for examining or testing veracity of the allegations written in any complaint. At this stage there is no scope for believing the allegations made against the Hon'ble Judge of Supreme Court Justice N V Ramana, and it will in no way obstruct his elevation to Chief Justice of India position as per the seniority according to Constitution or Constitutional conventions. In fact, the people and the stake holders of judiciary should be interested in getting his name cleared out of these allegations and believe that these complaints cannot cause any harm to the credibility of Judiciary and enormous belief reposed by people in theinstitution of the Supreme Court.

It isbelieved that the Honourable Chief Justice of India, to whom AP Chief Minister made the mentioned complaint recently, will have a free hand and reasonable time to consider the same and act in his own discretion, as per the process adopted by the Supreme Court in 1999 and announced in 2015. At this point of time, any activity like initiating contempt proceedings against the AP CM and his advisor might cause obstruction in that process. Our Rule of Law based Constitution, and the mechanism of the Supreme Court envisages due consideration and after that, if needed, due hearing of Complaints. Such a process would help the Judge to come out of the allegations with due dignity.

Second, prosecuting or punishing a complainant for contempt of court, before verifying allegations made in the Complaint is not proper, not reasonable, and not justified.

Third, the law of Contempt of Court should only be used for effective implementation and compliance of the judgement of the Supreme Court and other courts and not for filing a complaint against a Judge. Instead of examining the complaint, if the complainant is prosecuted, it might send a wrong message across the nation that extra ordinary power of the Courts was used to suppress the complaints.

Fourth, the request for consent is filed by a respectful advocate of Supreme Court. But he is also a leader of the ruling political party. The complaint is filed by AP Chief Minister, who is president of a political party. The BJP is ruling at the Centre leading a coalition with more than absolute majority for a second term. The Telugu Desham Party which fought elections in 2014 as an ally of BJP and partner of NDA has come to power in AP in 2014 and for some years the TDP shared the power at the Centre with the BJP. Hence acting on the petition by a BJP leader will give political colour to this episode and accepting such request may not be viewed with required political neutrality and objectivity.

As the request has come from a BJP leader, either acceptance or rejection of such request might lead to several interpretations and speculations which could undermine the dignity of Judiciary. However, the petitioner has every right to file such a petition. But accepting such a request would be more harmful than the harm that might be caused by rejection. In these circumstances the Attorney General has reposed confidence in the discretionary powers of CJI and left it to him to decide on the letter which is placed before him.

Second Rejection

The nonagenarian Attorney General of India Mr KK Venugopal has rejected once again the repeated request of Ashwini Kumar Upadhyay for punishing AP CM for complaining. Venugopal stuck to his earlier opinion and felt that CJI should be left free to exercise his discretion on this matter.

Attorney General advised Ashwini Kumar Upadhyay, to approach Supreme Court if he wanted. Can he file a writ petition before Supreme Court asking to invoke its contempt power on its own? Asking SC to act 'on its own' is a self-contradiction. How can any other ask an institution to act on its own? Mr Upadhyay may submit a representation to CJI in an ordinary manner as the Constitution does not provide for writ petition to be filed for this purpose. Unless one shows that his Fundamental Right is violated, SC cannot entertain any PIL or other petition under Article 32. In Jagan's complaint to CJI, there is nothing that Upadhyay could lose.

Who is Upadhyay?

Ashwini Kumar Upadhyaya has filed PILs on issues which are prominent parts of BJP's agenda like yoga, Vande Mataram and nikah halala. He also filed a PIL in the Supreme Court challenging the constitutional validity of Article 370 of the Constitution. It is significant to note that in 2016, same petitioner Ashwini Kumar Upadhyay had filed a PIL before Supreme Court, seeking to set up special courts to decide criminal cases involving legislators in one year, so that convicted persons are barred from contesting elections.

On September 16, a bench headed by Justice Ramana had asked High Court Chief Justices to constitute a special bench to monitor the progress of trial of criminal cases against sitting and former legislators, "forthwith" list all such cases which have been stayed, and decide whether the stay should continue or not. Interestingly a case of disproportionate assets against Jagan has commenced before the CBI special court in Hyderabad in pursuance of the Supreme Courts direction, on October 9, and very next day, the CM's Principal Advisor released the controversial letter of Jagan dated October 6 to the CJI to the media. In that letter it was alleged that Justice Ramana "has been influencing the sittings of the (Andhra Pradesh) High Court including the roster of few Honourable Judges".

Upadhyay, further said, "Even worse, if this kind of precedent were allowed, political leaders would start making reckless allegations against judges who do not decide cases in their favour and this trend would soon spell the death knell of an independent judiciary. "I am therefore seeking your kind consent under Section 15(1)(b) of the Contempt of Courts Act, 1971 read with Rule 3 of the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 to initiate criminal contempt against Y S Jagan Mohan Reddy, Chief Minister of Andhra Pradesh and Shri Ajeya Kallam, Press Advisor of the Government of Andhra Pradesh."

Upadhyay claimed that the actions of these two individuals constitute grave criminal contempt of the Supreme Court of India and the High Court of Andhra Pradesh. As the Jagan's letter was in public domain for around two weeks but the Supreme Court did not initiate any action, Upadhyay stated that he took up to issue.

Upadhyay wants Jagan and his advisor to be prosecuted for publicising the letter he wrote to CJI. But what he is doing. He has put his private communication to AG in public. Then published the answer of AG was also published as pdf in social media, and then his re-request with the AG's response. He also has committed same 'wrong' which he is alleging that Jagan has committed. Why should his complaint and AG's comments on his application for consent be publicised? More than the result, Upadhyay is interested in public discussion, political mileage, publicity, and popularity. The problem is the politicians are trying to use the law and forum of judiciary for their politics. It is not proper to politicise the complaint and contempt issues. Political parties should not use this forum for their goals and interests.