The Supreme Court today took strong exception over attempts made in judge B H Loya death case to "scandalises the process of the court" which prima facie constituted criminal contempt as lawyers did not even spare the apex court judges hearing the matter from the "vituperative assault on the judiciary".
The top court said serious attacks were made on the credibility of two judges of the Bombay High Court and aspersions were also cast on the high court's administrative committee against whom lawyers had called for issuance of contempt notices.
A bench of Chief Justice Dipak Misra and justices A M Khanwilkar and D Y Chandrachud said the conduct of the petitioners and the intervenors scandalised the process of the court and prima facie constituted criminal contempt.
However, on a dispassionate view of the matter, "we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law", it said.
Advocate Prashant Bhushan, appearing for one of the petitioners, had argued that two of three judges in the bench -- justices Khanwilkar and Chandrachud -- should recuse from hearing the case as they were earlier judges in the Bombay High Court and might have known the judicial officers who submitted statements or justices Bhushan Gavai and S B Shukre who had visited judge Loya in the hospital.
The bench said if this was to be the test, it was rather ironical that the petitioners had instituted proceedings before the Bombay High Court whose judges were expected to be faced with the same situation.
"We informed Mr Bhushan that a decision as to whether a judge should hear a case is a matter of conscience for the judge. There is absolutely no ground or basis to recuse. Judges of the high court hear intra court appeals against orders of their own colleagues.
"References are made to larger benches when there are differences of view. Judges of the Supreme Court hear appeals arising from judgments rendered by judges of the high courts in which they served, either as judges or on appointments as Chief Justices. Maintaining institutional civilities between or towards judges is distinct from the fiercely independent role of the judge as adjudicator," it said.
The top court, which was critical of the petitioners and their lawyers for casting insinuations against the judicial officers and judges, said an attempt was made to cause prejudice against them and it was a "vituperative assault on the judiciary."
The bench also took note of the submissions of senior advocate Dushyant Dave, representing another petitioner, that he wanted to cross-examine the four judicial officers -- Shrikant Kulkarni, S M Modak, V C Barde and Roopesh Rathi -- whom he did not believe in.
It said that senior advocate Indira Jaising also joined the fray by requesting the court to issue contempt notices to the administrative committee of the Bombay High Court and another junior counsel, appearing with senior advocate V Giri, went to the extent of urging that the judicial officers whose statements were recorded during the discreet inquiry were suspect.
"We emphatically clarify that on the well-settled parameters which hold the field, there is no reason for any member of the present bench to recuse from the hearing. While it is simple for a judge faced with these kinds of wanton attacks to withdraw from a case, doing so would amount to an abdication of duty. There are higher values which guide our conduct," the bench said.
The court said though Bhushan made it clear that he was not filing an application for recusal and none had been filed, it recorded what transpired to express its "sense of anguish" over the manner in which these proceedings were conducted.
"Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt.
"However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt if only not to give an impression that the litigants and the lawyers appearing for them have been subjected to an unequal battle with the authority of law," it said.
The bench expressed the hope that the "Bar of the nation is resilient to withstand such attempts on the judiciary" and said that the judiciary must continue to perform its duty even if it is not to be palatable to some.
It said the strength of the judicial process lies not in the fear of a coercive law of contempt and the credibility of the judicial process is based on its moral authority.
"It is with that firm belief that we have not invoked the jurisdiction in contempt," the bench said.
The issue of Loya's death had come under spotlight in November last year after media reports quoting his sister, had fuelled suspicion about circumstances surrounding it and its link to the Sohrabuddin case.
Loya, who was hearing the high-profile Sohrabuddin Sheikh fake encounter case, had died of cardiac arrest in Nagpur on December 1, 2014 when he had gone to attend the wedding of a colleague's daughter.
However, Loya's son had on January 14 said in Mumbai that his father had died of natural causes.
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