COMMENTARY: SC flexible on freedom of expression in contempt cases

January 12, 2018 05:41 AM Ananta Raj Luitel

KATHMANDU, Jan 12:  Dr Govinda KC is the first to be released after being accused by our judiciary and even after admitting in court to criticizing the chief justice and his decision.

While recording his statement before the court, Dr KC had admitted that he issued a press release criticizing Chief Justice Gopal Parajuli and Justice Deepak Kuamar Karki for reinstating Shashi Sharma as dean of the Institute of Medicine (IOM)  and that he accused Parajuli of being 'corrupt' and a 'don of mafia'.

This is the first time that the judiciary has taken a liberal approach towards the accused even after allegations against him were proved before the bench. The allegations aganst KC were proved before  Justices Purusottam Bhandari and Bam Kumar Shrestha but he was released on a date (tarekh) for reappearing before the court. The court neither sought bail nor any personal guarantee for his release. 

“The courts do not have a consistent approach in contempt of court charges but they have been adopting a liberal approach, ensuring freedom of expression even against judicial decisions,” Dr Ram Krishna Timalsena, former registrar of the Supreme Court, told Republica. “This state of affairs shows that the judiciary should be working toward internal reforms.”

The SC  not only released Dr KC but accepted his demand for a probe into the CJ's citizenship and his academic certificates, and into the decisions handed down by Parajuli and Karki.

Since long back, the apex court has been adopting a liberal approach towards freedom of expression. The apex court had acquitted Kantipur daily in relation to its reports on the appointment of eight Supreme Court justices four years ago.

In 2008, the apex court set out the guiding principles for finding contempt of court when adjudicating Santosh Bhattarai vs Himal Media. It stated that willful disobedience of a court verdict or order, willful violation of the oath taken in court, and scandalizing the court amount to contempt of court.

It further outlined that interference in the hearings process, interference in the process of  dispensation of justice, intervening in independent and impartial judicial work through comment on sub-judice cases, disturbances and hindrances against any party or witness in a case and court staff, and  any other activity which may undermine the adjudication process would be  contempt of court.

The apex court also gave a clean chit to Jana Aastha daily in relation to a contempt of court case filed against its editor and publisher after it published news about the chief justice Dilip Kumar Paudel accusing him of involvement in raping his adopted daughter Tulsa Paudel. 

Even after proving that the news was published on the basis of false information, the bench acquitted the newspaper editor and publisher stating that they did not have any mala fide intentions against the judges or judiciary but were only exercising their freedom of expression. 

In 2005, former prime minister Girija Prasad Koirala had accused the Supreme Court of working in the interest of the royal palace and suggested to it to shift to Narayanhiti Royal Palace. The apex court summoned him in person and recorded his statement. It ultimately acquitted him stating that he did not have any bad intention but was only for reform in the judiciary. 

Former prime ministers Pushpa Kamal Dahal and Baburam Bhattarai had alleged that the apex court was favorable to the bourgeois and only sentenced the poor. But they were also acquitted. The judgment stated that they had exercised freedom of expression and had only intended reform in the judiciary.  

The apex court had convicted Nihita Biswas and Shakuntala Thapa when they accused the judges of bias in handing down a life term against serial killer Charles Sobhraj. The mother and daughter had accused the judges of being 'corrupt' and said they would not respect the verdict.

 Later, they claimed that they did not have any intention of accusing the judges of being corrupt but had felt provoked by the negative verdict.

“People have the right to disagree with the decisions of the court but they don't have the right to disobey,” said legal expert Prof. Purnaman Shakya, adding, “If anyone wants to overturn a judgment, he or she must follow due process. Choosing to launch a movement and other pressure tactics are not acceptable.”

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