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IS WHATSAPP’S NEW PRIVACY POLICY A BREACH OF RIGHT TO PRIVACY?

WhatsApp is being criticised for its revised privacy policy under which Facebook and its partner companies will get access to selected user data. Since then, there has been an increase in the downloads of alternative messaging apps. Although WhatsApp has clarified that with end-to-end encryption, one cannot see the private chats or calls. WhatsApp had given its users a time period till February 8, which is now extended to May 15, to accept the new terms and conditions otherwise their account will stop operating. WhatsApp is an intermediary under Section 2(1)(w) of the Information Technology Act, hence, it is assumed to be providing public service. 

It is argued that the new and updated privacy policy of WhatsApp violates the Right of Privacy guaranteed under Article 21 of the Constitution. The Hon’ble Supreme court has declared the Right to Privacy as a “Fundamental Right” under Article 21 of the Indian Constitution, in the case of K.S. Puttaswamy (Retd.) v. Union of India. In this case while delivering the judgment the Hon’ble bench widely interpreted the term “Privacy” as:

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.  Privacy also connotes a right to be Left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy attaches to the person since it is an essential facet of the dignity of the Human being.

 WhatsApp provides a platform where people communicate the most in today’s time and this new updated privacy policy has replaced the “opt-out-policy” which means that from now on, data sharing with Facebook and its group of companies will become a compulsion if one is using WhatsApp. Now, the users will compulsorily share all the information which will include any service-related information, personal information and others. The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 deal with the protection of “sensitive personal data or information of a person” which includes such personal information which consists of information related to passwords, financial information, legal documents, diagnosis reports, sexual orientation, trade secret etc. All this information will not be safe and will now be easily accessible by Whatsapp, Facebook and its other companies. 

Moreover, the same is also violative of section 72A of Information Technology Act, 2000. As per Section 72A of Information Technology Act, disclosure of information, knowingly and intentionally, without the consent of the person concerned and in breach of the lawful contract has been also made punishable with imprisonment for a term extending three years and fine extending to Rs. 5,00,000/-. WhatsApp is accessing and disclosing the private, personal and vital information of an individual with other companies with compulsion in its new privacy policy. 

Many petitions have been filed in the Apex Court against this policy and since it is against the fundamental right to privacy, a withdrawal of the privacy policy is feasible and the users should be allowed to give informed consent for collection of their personal data.

ARE WRIT PETITIONS AGAINST PRIVATE BODIES MAINTAINABLE?

The term Writ is defined by the Oxford Dictionary as a form of written command in the name of a legal authority to act or abstain from acting in a particular way. Writs are not new to the legal system, their existence commenced during Monarchy itself, i.e., the Monarch would send a written order to a person (government official) to act in a specified manner. As time passed, this authority to order a government official to act or abstain to act in a certain way has been passed to the Constitutional Courts. During the making of the Constitution of India, the makers inserted Article 32 and Article 226 empowering the Supreme Court of India (SCI) and the High Courts respectively to issue writs and gave the citizens of India a right to file writ petitions.

The term petition was added to the term writ, making it a Writ petition, which means a request by the people to the legal courts to issue a writ to a government official(s). Article 32 gives people the power to move the SCI for the enforcement of the rights guaranteed in Part III of the Constitution and also empowers the SCI to issue writs. Similarly, Article 226 empowers the High Courts in India to issue writs and the citizens to file for writ petitions. There are five types of writs, i.e., Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto.

The SCI in the case of Federal Bank Lt. v. Sagar Thomas & Ors. (2003) clarified against whom a writ petition cannot be filed. It stated that private companies, including private banks would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. Relying on this ruling of the SCI, the Allahabad High Court in the case of Arif Khan v. Branch manager Mahindra Finance Sultanpur & Another (2021) dismissed the writ petition by the petitioner stating that Mahindra Finance being purely a private body is not an authority within the meaning of Article 12 of the Constitution which defines ‘State’ as “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

In this case, the petitioner sought the issuance of a Writ of Mandamus directing the respondents, i.e. Mahindra Finance, Sultanpur, to provide a complete statement of a certain customer ID to the petitioner with the due amount and to take the said amount in easy instalments. The court had to dismiss this petition because enforcement of rights of the Indian citizens can only be against the State (government) authorities and according to the Article 226 of the Constitution, the Courts can only issue writs against the government authority or government persons.

However, the SCI in the case of Federal Bank Lt. v. Sagar Thomas& Ors. (2003) provided an exception stating that a private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce a statutory obligation or such obligations of public nature.

The fact that writ petitions can only be filed against government authorities or such connected persons and not private persons unless it affects the public at large or it is associated with a statutory body, is already known and the Allahabad High Court in the present matter has re-emphasized the same.

KERALA HC ON ‘DOES STEALING MAKE ONE A THIEF?’

The High Court of Kerala, in the case of Abdul Rahoof v. State of Kerala & Ors. (2020) has stated that the first-time offenders in theft do not have to be imprisoned citing the provision under Section 360(3) of Criminal Procedure Code (CrCP) and Section 3 of Probation of Offenders Act, 1958 (POA).

Section 360(3) CrCP states, “In any case in which a person is convicted of theft, theft in a building, dishonest misappropriation, cheating or any offence under the Indian Penal Code (45 of 1860), punishable with not more than two years’ imprisonment or any offence punishable with fine only and no previous conviction is proved against him, the Court before which he is so convicted may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any punishment, release him after due admonition”.

Further Section 3 of the POA, 1958 gives power to Indian Courts to release certain offenders after admonition. The Kerala High Court also refers to the poem of the very well-renowned Malayalam Poet Ayyappa Paniker. Poet Ayyappa Paniker in his famous poem ‘Moshanam’ when translated to English says,

Just because I have stolen a few things, why should you call me a thief?

Whenever one steals something good, you people raise a

clamour – for nothing and dub him a thief, a thief!

It is the fault of your laws,

Change you then your law, I say,

Lest your laws should change you

However, the Kerala High Court while giving their opinion disagreed with the concluding lines of the poem stating that such law is already available. The Court further stated, “the criminal justice delivery system can attain its ultimate aim only with the help of society. To err is human. If a person commits some small mistakes, Section 360 CrPC and Section 3 of the POA will protect that person. But society should also protect him by not treating him as a criminal or a thief. If a person commits a small theft, society must reform him..”

This statement was given by the Kerala High Court in the present case because in the cited case, it was said that the prosecution witnesses blamed the accused by spreading a rumour that he is a thief who stole a motor. When the accused along with his father went to the person’s house whose motor he is accused to have stolen in order to sort the issue, a fight broke down between the accused and the witnesses of the prosecution, and then the accused stabbed two of them in the abdomen.

When they filed a suit against the accused, a counter case was filed by the accused saying that it was the prosecution witnesses who attacked him first and only then he had to stab them in private self-defence. The trial court found the accused guilty, however, the Kerala High Court acquitted him.

Now, the words regarding first-time offenders in theft by the Kerala High Court has both pros and cons. The advantage is that it will fulfil the purpose of punishments in criminal law that is reformation, so if a person steals something, he/she can be acquitted with a warning to change his/her acts for the better. This reformation is sought to be done not by punishing the person, instead through taking the help of society to do so.

Whereas, the disadvantage is that a person who is guilty of being a thief can take advantage of this and use it to acquit himself/herself. Although, overall the discussed provisions and the Court’s words are a chance for first-time offenders to redeem themselves without unjustly serving imprisonment. But, it is also important for society to look at that person in a way that he/she is redeemable and not characterise him/her as only a thief.

CRPF SOLDIER MISSING FOR MORE THAN 7 YEARS CONSIDERED TO BE DEAD

In the case of Madhu Devi v. Union of India, decided by the J&K High Court, the petitioner, Madhu Devi, through a Writ of Certiorari pleaded to quash the order declaring her missing husband as a ‘deserter’ and pleaded to declare him as dead under Section 108 of the Indian Evidence Act which states that the burden to prove that a person is alive who has not been heard of for 7 years is on the person who he/ she naturally communicated with; but if such persons have not heard then the burden shifts/ is upon the person who affirms it. The petitioner’s husband, namely Asha Ram, was serving as a head Constable in 16 Battalion CRPF and was last posted at Civil Lines Mathura, UP. Mr. Asha Ram was putting up a residential quarter at the Group Centre of the said Battalion at Ban Talab, Jammu. In June 2010, the petitioner got a phone call from the Company Commander of the Unit informing her that her husband had gone to fetch some vegetables, however he did not return back. The petitioner, individually, and the respondents tried to reach CRPF but no trace was found. The respondents halted the salary of the petitioner and the whole burden of rearing the children was put on Madhu Devi. The petitioner contended that she was out of touch with her husband for 7 years and the respondents had dismissed him from job stating him to be a “deserter”. Desertion or aiding in desertion is an offence as per Section 38 of the Army Act, 1950. However, the single bench led by Justice Sanjay Dhar ordered that a Central Reserve Police Force (CRPF) soldier missing for the last seven years can be presumed to be dead in terms of Section 108 of the Indian Evidence Act and hence, the Court directed the CRPF authorities to give all consequential benefits to the family of the missing person. The Court opined that the petitioner’s husband cannot be stated as a deserter as the word ‘desert’ would mean– “illegally running away from military service. A person, whose whereabouts are unknown and who has not been heard of for the last more than 10 years, cannot be stated to have illegally run away from his service.” The petitioner’s husband is presumed to be dead because his whereabouts have remained unknown for more than seven years, as such, he cannot be held guilty of having deserted the service of CRPF. The Court ordered the respondents to release all service/pensionary benefits towards the petitioner’s husband as the respondents were wrong in terming Mr.Asha Ram a deserter just on the benefit of doubt. Mr. Asha Ram being untraceable nowhere proves that he illegally abstained from his duty. In the case of Madhu Devi v. Union of India, the petitioner’s husband being untraceable for 7 years has lost all the civil rights and thus he can be considered to have a civil death too. Hence, the judgement can be seen as an application of law in favour of the partners or family of such officers by financially benefiting and supporting them. However, an ambiguous question can arise as to what will happen if and when the person so declared to be dead appears after the date of such declaration?

JUDICIAL ACCOUNTABILITY IN TIMES OF COVID-19

Independence of the judiciary is one of the essential traits of a democratic government. However, this does not mean that the judiciary, i.e. the judges or court officials should have unfettered power.  Judges too must uphold the highest standards of integrity and be held accountable to the public. Where judges or court personnel are suspected of breaching the public’s trust; fair measures must be in place to detect, investigate and sanction corrupt practices. Formerly, several attempts have been made in the form of the Judicial Accountability Bills of 2006 and 2010 but these bills never saw the light.

In the past, several allegations have been made against judges for misconduct. In lines of the pandemic too, several questions were raised against the judiciary for hearing certain cases at great urgency, while keeping other similar matters pending without any hearing. Such practices make the public lose their faith in the justice delivery system. 

Through the 2018 verdict of Swapnil Tripathi v Supreme Court of India, the Court laid down elaborate guidelines and modalities for live-streaming court proceedings. The Court held that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework for holistic live-streaming as an extension of the principle of open courts and for dissemination of information in the widest possible sense, thereby imparting transparency and accountability to the judicial process. 

This declaration made by the Supreme Court two years ago has now come to light. Several High courts like Madras and Gujarat have already started live-streaming certain matters. The SC accordingly, on 4th November, set up a panel to formulate rules for regulating the live streaming. However, several judges including CJI Bobde have claimed the process is susceptible to abuses and the Court until now had been reluctant in allowing the same. 

MADHYA PRADESH HC’S ORDER RESTRAINING PHYSICAL POLL, STAYED BY SC

Bihar State Elections are the first election in the country and the biggest one globally since the pandemic, the first phase of the elections will begin from 28th October, 2020. Several changes and guidelines to maintain norms of social distancing have been observed by the Election Commission keeping in mind safety of the voters and poll officials. The voting timings have been extended. An hour towards the end is reserved for Covid positive patients so that they are not deprived from participating in the democratic process. 

According to the Election Commission of India, 7 lakh hand sanitizers, 46 lakh masks, 6 lakh PPE kits, 6.7 lakh face shields and 23 lakh pairs of hand gloves have been arranged for the polls. Postal ballot facility has also been made available wherever required on request. Campaigns will also be restricted. Door to door campaigning is permissible but maximum 4 people can accompany the candidate. Apart from these large halls, thermal screening, compulsory masks throughout the process are other protocols in place.

Political campaigns have begun in Madhya Pradesh. Subsequently, a PIL had been filed in the High Court of Madhya Pradesh highlighting that physical campaigning by political parties was causing increase in the spread of COVID-19. In addition, the PIL also stated that nobody from the public is taking any action against these political parties. After hearing this PIL, the Gwalior bench of Madhya Pradesh High Court passed an order restraining any physical gathering for poll campaign amid the pandemic. 

The High Court’s order stated that the political parties will have to get permission from the district magistrate and if the parties want to hold any kind of physical gathering, a certificate from the poll panel will be required establishing that virtual campaign was not possible under any circumstances. Furthermore, the political parties will have to deposit money for procuring masks and sanitizers for the people taking part in the campaign. In its order, the High Court had also directed the District Magistrates of Datia and Gwalior to assure that FIRs are registered against former Chief Minister Kamal Nath and Union Minister Narendra Singh Tomar for alleged violation of COVID-19 norms during election campaigns.

Three pleas were filed against the HC’s order by Election Commission of India, by BJP leader Pradyuman Singh Tomar and Munna Lal Goyal and heard by Justices A M Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna. The primary grounds of the same being, violation of “right to conduct elections” and disregarding the guidelines made by ECI. On 26th October, 2020 SC while staying the order of Madhya Pradesh HC, declined to decide or elaborate upon the contentions or merits of the case raised by the appellants. 

Further, it directed the Election Commission of India to take cognizance of issues raised in the petition before the High Court and list it within six weeks. The rationale behind the non-interference was adherence to Part XV, Article 324, 329 of the Constitution which bar judicial interference in the electoral process and fixate the duty on ECI. Hence SC’s order restored the electoral process, however the ECI can take further actions in determining the validity of issues raised.

WHY ARE STATE GOVERNMENTS WITHDRAWING ‘GENERAL CONSENT’ FOR CBI INVESTIGATIONS?

The Central Bureau of Investigation (CBI) is constituted under the Delhi Special Police Establishment Act, 1946 and its jurisdiction to investigate primarily extends to the Union Territories as per Section 2 of the DSPE Act but the same can be extended by the Central government under section 5 of the act to the states, given the state government has given their general consent under Section 6 of the act. The state governments can through a notification under section 6 withdraw their consent but it will only have a prospective effect and will not affect the ongoing investigations. After which for CBI to investigate new matters within a state, it will have to demand a case specific consent and when denied that consent too, it can approach the Courts for carrying out the investigation. 

On 21st October, the Maharashtra Government revoked its general consent under Section 6, the purpose behind the same was to protect the powers vested with the local state police and preserve the authority of state government. A few months ago, the CBI took over the Sushant Singh Rajput suicide case and the drug case. Recently, in the TRP scam case, the Mumbai police is already doing an investigation but the CBI has accepted an FIR in Uttar Pradesh based on a complaint for investigating the TRP scam. 

As per the procedure, if the state government has revoked its general consent and is not allowing a case specific investigation by CBI either, and if the case is partly in two or more states then the CBI can register the case in one state and seek assistance from the other state government. Similarly, in the TRP scam case one of options with CBI is to seek assistance of Maharashtra government, since the case is on a related subject matter. 

Maharashtra Government’s decision makes it the 5th state to have withdrawn the consent. In the past, Andhra Pradesh, West Bengal, Chhattisgarh and Rajasthan too have taken the same step. The key reason behind this is that the Central agency has on several occasions been alleged of misuse for “political purposes” and corruption. It has also been accused of specifically targeting the central government’s political rivals. For example, AP government’s move is considered as a consequence of the political tension between BJP-led Centre and Telugu Desam Party and Income Tax raids that were instituted against several leaders of the latter party. Similar instances were observed in the other states too. Formerly the Apex Court observed in the famous Coal scam case, the CBI as a “caged parrot” and “its master’s voice” 

Hence the revocation of consent can in certain instances be in the state’s interest, whereas in other cases it might not be in the people’s interest, who may demand interference by an independent agency.

Criminal Contempt: A Legal Point of View

Miss. Vidhi Dugad, Mumbai University.

Contempt of Court is a phrase that should be understood by interpreting the word- ‘contempt’. Contempt in simple words means disgrace or disrespect. The Judiciary holds an esteemed position in law, especially in the Indian Legal System. The Indian Legal System is based upon the principle of Rule of Law which means that the law is supreme. In such a state the judiciary is given even more importance because it is considered to be the guardian of laws[i].

The laws for contempt of court exist not to protect the judges or courts but to protect the justice system itself[ii]. The powers to punish for contempt are provided to the courts by the Constitution of India under Article 129[iii] which states that “The Supreme Court of India shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Furthermore, Article 215[iv] states “High Courts to be courts of record. Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” Therefore, the High Courts and the Supreme Court, both have the powers to punish for contempt.

As stated in The Contempt of Courts Act, 1971 S.2(a), there are two major types of contempt:

  1. Civil Contempt[v]

Civil Contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Therefore, violation of any directions ordered by the court may amount to civil contempt.

  1. Criminal Contempt[vi]

This type of contempt is a more serious one and it is more difficult to determine. There are three things that may constitute as criminal contempt- scandalizing or lowering the authority of a court, prejudicing a judicial proceeding, and obstructing or interfering with administration of justice[vii]. Doing any act or publishing anything which has the above mentioned results amounts to criminal contempt.

Even lawyers are not excused in cases of contempt. For better understanding, we can look at the case of Jaswant Singh v. Virender Singh[viii]. In this case, there was a transfer petition filed which set up a serious allegation on the learned judge and his discharge of judicial functions. The Honourable Supreme Court in this case held that the claims and language used was not only derogatory but it also interfered with the conduction of a fair trial. Therefore, the lawyer was held in contempt. A similar verdict has been upheld several other times in very recent cases where judges have taken suo motu action against advocates who make derogatory allegations against judges[ix].

Media is regarded as the medium that voices public opinion and at the same time brings knowledge of the routine world to the people. However, sometimes the phenomenon of media trial arises. This term- ‘media trial’ is the idea that before the court passes a judgement, the accused has already been tried by the media in a public sphere and has been declared guilty. The Supreme Court of India in certain cases has referred to ‘trial by press’ as a ‘miscarriage of justice’[x]. In the case of M.P. Lohia v. State of W.B[xi], the Supreme Court went as far as warning the editor and writers that their articles would affect the case. Media Trials not only hinder the administration of justice, they also violate the principle of ‘innocent until proven guilty’[xii].

Time and again several cases of criminal contempt have been initiated and most of them have been ruled against the accused. In the Arundhati Roy Case[xiii], based on a statement worded- “By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm” in Ms. Arundhati’s Affidavit, contempt of court proceedings were initiated against her. She responded to this by further criticising the court at several instances. Ms. Arundhati Roy was in the end punished for contempt. This case raised a lot of question on the contempt of court laws and their relevance today.

The most recent case of criminal contempt that has moved the minds of masses is the Prashant Bhushan Case[xiv]. Mr. Prashant Bhushan- a Senior Advocate practicing in the Supreme Court of India made two tweets on twitter. One was regarding the Chief Justice of India riding an expensive motorcycle without mask while the Supreme Court was closed due to the pandemic and a second one regarding how the democracy that is India was being destroyed with reference to the Supreme Court and past four CJIs. The Supreme Court took suo motu cognizance of this case. In the defence of Mr. Prashant Bhushan, it was argued that the first tweet was just a statement to show distress over the fact that the Supreme Court of India was not functioning which violates the citizen’s rights, where meanwhile the Chief Justice of India was enjoying without wearing a mask in times of Covid-19. It was said that if this was contempt the fundamental rights under Art. 19(1)(a)of the Constitution of India[xv] would be violated.

For the second tweet the defence argued that the tweet was a ‘bona fide opinion about the situation in the country’ by Mr. Bhushan. It was further argued that there was no basis for contempt of court accusation because all statements made were at the judge as a private individual. The defence further argued that the decision of the court be given after considering the situations and circumstances surrounding the facts and not only on the basis of the statements made. However, the final decision of this case came with a guilty verdict with a fine of Rs. 1/-.

Exceptions:

There are certain exceptions to contempt of court. Most of them are mentioned in The Contempt of Courts Act, 1971:

  1. S. 3: Innocent publication and distribution of matter not contempt[xvi]. This means that if a person publishes something regarding a case or proceeding or interferes with the process of justice in an ongoing proceeding but has no reasonable grounds to believe that the proceeding is ongoing, they cannot be held in contempt for it,
  2. S. 4: Fair and accurate report of judicial proceeding not contempt[xvii]. and
  3. S. 5: Fair criticism of judicial acts not contempt[xviii]. Which means that comments or criticism on case, judgements, orders, or judicial decisions that have already been decided will not amount to contempt.

Conclusion:

Contempt of court has become a controversial topic overtime; especially criminal contempt. We have observed this in the Arundhati Roy[xix] case where there was a lot of opposition towards the guilty judgement. Furthermore, the contempt of court law is becoming increasingly redundant in other nation states. In England itself, from where India has inherited this law, courts are refusing to peruse contempt cases[xx]. The effect that Contempt of Court has on Freedom of Speech and Expression should not be ignored either. Contempt of Court is a reasonable restriction that can be imposed on the fundamental right guaranteed under Art. 19(1)(a). Therefore, it is important to analyse contempt from the perspective of a restriction especially after the Prashant Bhushan case[xxi] where Mr. Bhushan seeks a right to appeal[xxii]


[i]Spadika Jayaraj, Judicial Accountability and Contempt of Court: Comparing India with U.K., the U.S.A. and Singapore, 1.1 CALQ (2013) 18.

[ii]Attorney General v. Times Newspapers, [1973] 3 W.L.R. 298.

[iii] INDIA CONST. art. 129.

[iv] INDIA CONST. art. 215.

[v] Contempt of Courts Act, 1971.

[vi] supra

[vii] Id at 5

[viii] Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384.

[ix] Re: Ajay Kumar Pandey, (1996) 6 SCC 510.

[x] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.

[xi]  M.P. Lohia v. State of W.B, (2005) 2 SCC 686.

[xii] Anukul Chandra Pradhan v. Union of India, (1996) 6 SCC 354.

[xiii] Re Arundhati Roy, (2002) 3 SCC 343: AIR 2002 SC 1375.

[xiv] Re Prashant Bhushan, 2020 SCC OnLine SC 646.

[xv] INDIA CONST. art. 215, cl. 1(a).

[xvi] Id at 5

[xvii] Id at 5

[xviii] Id at 5

[xix] Id at 13

[xx] A.P. Shah, The chilling effect of criminal contempt, The Hindu (JULY 27, 2020 00:45 IST), https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-contempt/article32198138.ece.

[xxi] Id at 14.

[xxii] Legal Correspondent, Prashant Bhushan case | Plea to uphold right of appeal in contempt case, The Hindu (SEPTEMBER 13, 2020 08:28 IST), https://www.thehindu.com/news/national/prashant-bhushan-case-plea-to-uphold-right-of-appeal-in-contempt-case/article32589978.ece.

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench.