Whether the acts of Justice Swami amounts to Contempt of Court or not?

The counsel most humbly submits that the act of Justice Swami does not lead to the contempt of
Apex Court of Indiana in any manner.

First of all, No contempt proceedings either Civil or Criminal can be initiated against a sitting
High Court Judge.

Section 3(1) of the Judges Protection Act, 1985

... no Court shall entertain

or continue any civil or criminal proceeding against any person who is or

was a Judge for any act, thing or word committed, done or spoken by him

when, or in the course of, acting or purporting to act in the discharge of his

official or judicial duty or function.

E.S. Sanjeeva Rao v. CBI Mumbai and others.

In this case Bombay High Court held that no judge can be prosecuted without a prior sanction
whether alleged offence is punishable under the provisions of any law.

Only an impeachment order under Article 124(4) of the Constitution of India, in Parliament,
which is outside the jurisdiction of Apex court of Indiana. So, the sentence order passed by the
Honble Apex Court under Contempt proceedings is unlawful and unconstitutional.

Even the essentials of Section 2(c) Contempt of Court Act, 1971 are also not satisfied in the
conduct of Justice Swami to constitute Criminal Contempt. Section 2(c) in the Contempt of
Courts Act, 1971:

(c) 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) scandalizes or tends to scandalize, 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.
Neither of the any of the three conditions of criminal contempt can be found in the conduct of
Justice Swami.
(i) Scandalization: First of all, no clear meaning of this word is defined anywhere in the
Contempt of Court Act, and even if we go by its general meaning that is a
deliberative offensive act cannot be found in the conduct of Justice Swami. Justice
Swami had written letters containing allegations of corruption and authority to
different authorities demanding investigation against judges under Section 4(1) of the
Whistle Blowers Protection Act, 2011 which says:

4. (1) Notwithstanding anything contained in the provisions of the Official Secrets

Act, 1923, any public servant or any other person including any non-governmental

organization, may make a public interest disclosure before the Competent Authority.

And section 11(1) protects such person demanding investigation ( Justice Swami in this case)
shall not be victimized for such disclosure. Section 11(1) of the Whistle Blowers Protection Act,
2011,

11. (1) The Central Government shall ensure that no person or a public servant who

has made a disclosure under this Act is victimized by initiation of any proceedings or otherwise

merely on the ground that such person or a public servant had made a disclosure or rendered

assistance in inquiry under this Act.

So the conduct of Justice Swami does not fall under the category of scandalisation section 2 (c)
of Contempt of Court Act, 1971.

And neither the acts of Justice Swami interferes in the due course of Judicial Proceedings nor
Obstruct or tends to obstruct in the administration of justice in any manner.

The act of Justice Swami of being a judge in his own case and imposing ban on his own transfer
order does not lead to Contempt of Apex Court of Indiana because the order of transfer was of
the Honble President of Indiana not of the Honble Apex Court. And as per article 129 of the
Constitution of India Supreme Court can only punish for contempt of itself.

Refusal for Medical Examination cannot be said to be contempt of court because Supreme Court
cannot force anyone to undergo Medical Examination. For conducting medical examination of
any person the prior informed consent of that person is necessary.
 Forcing someone to undergo medical examination violates the fundamental right of life and
personal liberty enshrined in article 21 of the Constitution of India. And also mere disobedience
of an order does not amount to criminal criminal contempt.

So the refusal of Justice Swami to undergo medical examination does not lead to contempt of
court.

Also the allegations of Justice Swami were against the judges of Apex Court not against the
Apex Court so the allegation if proved wrong may be called defamatory not contempt.

The test whether the impunged publication is mere defamatory attack on the judge or it interferes
with the proper administration of justice. It is only in the latter case that it will be punishable as
contempt.