CHANAKYA NATIONAL LAW UNI ERSITY
CONTEMPT OF COURT AND ITS USA
ILITY
Professional Ethics
Submitted to: Dr. Anshuman (Faculty, Professional Et ics)
Sub itted by: Saksha
Dwivedi
R ll no. 605 9th Semester
i|Page
ACKNOWLEDGEMENT Any project completed or done in isolation is unthinkable. This project, although prepared by me, is a culmination of efforts of a lot of people. Firstly, I would like to thank our Professor for Professional Ethics, Dr. Anshuman for his valuable suggestions towards the making of this project. Further to that, I would also like to express my gratitude towards our seniors who were a lot of help for the completion of this project. The contributions made by my classmates and friends are, definitely, worth mentioning. I would like to express my gratitude towards the library staff for their help also. I would also like to thank the persons interviewed by me without whose support this project would not have been completed. Last, but far from the least, I would express my gratitude towards the Almighty for obvious reasons. Saksham Dwivedi
`
3|Page
RESEARCH METHODOLOGY
Method of Research The researcher has adopted a purely doctrinal method of research. The researcher has made
extensive use of the available resources at library of the Chanakya National Law University and also the internet sources. Aims and Objectives The aim of the project is to present an overview of various aspects of contempt of court and its
usability. Scope and Limitations
Though the current topic is an immense project and pages can be written over the topic but due to certain restrictions and limitations the researcher has not been able to deal with the topic in great detail. Sources of Data: The following sources of data have been primarily used in the project
1. Books 2. Journals 3. Cases Method of Writing: The method of writing followed in the course of this research paper is primarily analytical.
Mode of Citation th The researcher has followed the bluebook method of citation (19 ed.) throughout the course of
this research paper. The author has followed the foot note system for citation.
4|Page
INTRODUCTION “We are not final because we are infallible, but we are infallible only because we are final.”
1
This was a famous quote by Justice Jackson in Brown v. Allen, making what appears to be a realistic self assessment of the position of the Supreme Court in the constitutional scheme. However, the question that arises is whether a layman, who is not a privileged member of the Bench can ever make such a comment, which effectively questions the infallibility of any court, leave alone the highest court of the land. As things stand today, any person attempting such an adventure may be hauled up for contempt of court, potentially facing a few ignominious days behind bars. This problematic situation is evident when one looks at the ambiguous expressions defining the ambit of contempt law. At a deeper level it becomes clear that this law itself is based on foundations ill-fitting to present day context, and it is these very foundations that one will attempt to question through the course of this project.
In a democracy the people should have the right to criticise judges. The purpose of the contempt power should not be to uphold the majesty and dignity of the court but only to enable it to function. The basic principle in a democracy is that the people are supreme. It follows that all authorities whether judges, legislators, Ministers, bureaucrats are servants of the people. Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people of 2
India are the masters and all authorities (including the courts) are their servants . Surely, the master has the right to criticise the servant if the servant does not act or behave properly. It would logically follow that in a democracy the people have the right to criticise judges. Why then should there be a Contempt of Courts Act, which to some extent prevents people from criticising judges or doing other things that are regarded as contempt of court?
3
In a democracy, the purpose of the contempt power can only be to enable the court to function. The power is not to prevent the master (the people) from criticising the servant (the judge) if the latter does not function properly or commits misconduct. Article 19(1)(a) of the Constitution 1
344 U.S. 443 (1953). Aggarwal, Vir Bala (2002) : “Media and Society Challenges and Opportunities”, New Delhi : Concept Publications. P. 23 3 Basu, D.D. (1980) : “Law of Press in India”, New Delhi : LexisNexis Buttersworths. P.434 2
5|Page
gives the right of freedom of speech and expression to all citizens. But Articles 129 and 215 give the power of contempt of court to the higher judiciary, and this power limits the freedom granted by Article 19(1)(a). How are these two provisions to be reconciled?
4
Once it is accepted that India is a democracy and that the people are supreme, the reconciliation can only be affected by treating the right of the citizens to free speech and expression under Article 19(1)(a) to be primary, and the power of contempt to be subordinate. In other words, the people are free and have the right to criticise judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult.
5
The test to determine whether an act amounts to contempt of court or not is this: does it make the functioning of the judges impossible or extremely difficult? If it does not, then it does not amount to contempt of court even if it is harsh criticism. Much of our contempt law is a hangover from British rule. But under British rule India was not free and democratic. Also, there was no Constitution containing provisions such as Article 19(1)(a). How then can the law of those days be applicable today? The only situation where I would have to take some action was if my functioning as a judge was made impossible. For example, if someone jumps up on to the dais of the court and runs away with the court file or keeps shouting and screaming in court or 6
threatens a party or a witness. In a speech delivered on the topic "The Law of Contempt is it being stretched too far?" the doyen of the Indian Bar Fali Nariman said the offence of scandalising the court is a mercurial jurisdiction in which there are no rules and no constraints.
4
7
Ibid. Markandey Katju, Contempt of court: need for a second look, The Hindu, January 22, 2007, http://www.thehindu.com/todays-paper/tp-opinion/contempt-of-court-need-for-a-second-look/article1785785.ece 6 Ibid. 7 Supra Note 2 5
6|Page
CONTEMPT OF COURT: ITS USABILITY Indian citizens are perfectly correct in saying there should be certainty in the law, and not uncertainty. After all, the citizen should know where he or she stands. There are two reasons for 8
the uncertainty in the law of contempt of court. In the Contempt of Courts Act, 1952 , there was no definition of `contempt.' Secondly, even when a definition was introduced by the Contempt of Courts Act, 1971 (vide Section 2), there was no definition of what constitutes scandalising the court, or what prejudices, or interferes with, the course of justice. What could be regarded as scandalous earlier may not be regarded as scandalous today and what could earlier be regarded 9
as prejudicing or interfering with the course of justice may not be so regarded today.
The view about the contempt power was first stated in England by Wilmot J. in 1765 in a judgment that was, in fact, never delivered (R. vs. Almon). In that opinion, Wilmot J. observed that this power in the courts was for vindicating their authority, and it was coeval with their foundation and institution and was a necessary incident to a court of justice. Successive courts not only in England but also in other countries thereafter followed the above dictum.
10
But from where did this authority and dignity of the court come from? In England, it came from the king who, in earlier times, would decide cases himself. It was only subsequently that the judicial function was delegated to judges. Thus in a monarchy the judge really exercises the delegated functions of the king, and for this he requires dignity and majesty as a king must have to get obedience from his subjects. The situation becomes totally different in a democracy; here the judges get their authority delegated to them by the people.
Hence in a democracy there is no need for judges to vindicate their authority or display majesty or pomp. Their authority will come from the public confidence, and this, in turn, will be an outcome of their own conduct, their integrity, impartiality, learning, and simplicity.
8
11
Bhasin, Lalit (2010) : “Media World and Law”, New Delhi :Universal Law Publishing Co. Pvt. Ltd. p. 68 Ibid. 10 Divan, Madhavi Goradia, (2010) : “Facets of Media Law”, Lucknow : Eastern Book Company. P. 97 11 Ibid. p. 100 9
7|Page
The view expressed above is, in fact, accepted now even in England. As observed by Lord Salmon in AG vs. BBB: "The description `Contempt of Court' no doubt has a historical basis, but it is nonetheless misleading. Its object is not to protect the dignity of the Courts but to protect the administration of justice."
12
As observed by Lord Denning in R vs. Commissioner of Police (1968): "Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself."
13
The best shield and armour of a judge is his reputation of integrity, impartiality, and learning. An upright judge will hardly ever need to use the contempt power in his judicial career. I submit that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court (for it is automatically vindicated and upheld by the proper conduct of the judge, not by threats of using the contempt power) but only to enable the court to function. The contempt power should only be used in a rare and exceptional situations where, without using it, it becomes impossible or extremely difficult for the court to function. In such situations, the contempt power should not be used if a mere threat to use it suffices.
There may, of course, be differences of opinion about what acts prevent, or make very difficult, the functioning of a judge. For instance, do comments by the public (including lawyers, journalists, etc.), or publicity in the media about a pending case cause this? I think not. A judge should have the equanimity and inner strength to remain unperturbed and unruffled in any situation.
The expression `preventing or making it extremely difficult for the judge to function' should ordinarily be understood with reference to a judge who has a true judge's temperament one that is 12
Ibid. Joshi, Uma (1999) : “Textbook of Mass Communication and Media”, New Delhi : Anmol Publications Pvt. Ltd. p.11 13
8|Page
detached, calm, with equanimity, and with broad enough shoulders to shrug off baseless criticism 14
or attempts to influence him without being perturbed. A fresh, modern, democratic approach, like that in England, the United States, and Commonwealth countries, is now required in India to do away with the old anachronistic view. Contempt jurisdiction is now very sparingly exercised in these western countries. Thus in Defence Secretary v. Guardian Newspapers (1985) 1 A.C. 339 (347), Lord Diplock observed that "the species of contempt which consists of `scandalising the judges' is virtually obsolescent in England and may be ignored."
Moreover, it must always be remembered that contempt jurisdiction is discretionary jurisdiction. A judge is not bound to take action for contempt even if contempt has, in fact, been committed
15
.
"Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the US Court of Appeals sensibly explained that he had little patience with, or respect for, that suggestion. I am unable to conceive ... that, in a democracy, it can never be wise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about the elimination of those shortcomings of our judicial system which are capable of being eliminated is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our courts."
16
In this
connection reference may be made to the recent amendment to the Contempt of Courts Act (the Contempt of Courts Amendment Act, 2006), which has introduced a new Section 13(b) that states: "The courts may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide." Thus, truth is now a defence in contempt of court proceedings if it is in the public interest and is bona fide. This amendment is in the right direction, and was long overdue.
17
14
Ibid. Madabhushi, Sridhar (Dr.), (2007) : “Law of Expression (An Analytical Study of Laws for Media)”, Hyderabad : Asian Law House p. . 12. 16 Ibid. 17 Supra Note 3 15
9|Page
CONTEMPT POWERS: JUDICIAL AUTHORITY IN TROUBLE? The power of the Courts to punish contempt would appear to be empty rhetoric as far as the source of this power and the various attempts at its
rationalization are concerned. It is not our intention to say that there is no justification for such powers of the court which it claims to protect its dignity and authority. However, as has been observed earlier, the advocates of this power of the court have presupposed the existence of the inherent powers of the court to punish contemptuous acts, and have advanced numerous theories and justifications to support their views. An often cited ground for upholding the enormous 18
power of contempt is that of the necessity to ensure ‘Rule of Law’. This is something the courts have been repeatedly relying on to justify their acts of punishing alleged contempt of their 19
powers. In this light, the Arundhati Roy case is worth special mention since in that judgment, the Supreme Court of India made a determined effort to elucidate the need to empower the Courts with the power to punish contempt of its authority. However, it seems that the raison d’être behind the existence of such a power is the lack of confidence of the Courts in their own capacity to earn respect from the people. In fact, the need of any such power would be irrelevant if the Court realizes that it can have greater authority by winning the confidence and respect of the people rather than enforcing its authority with penalties. A. THE ARUNDHATI ROY CASE
The Arundhati Roy case has been the focal point of any discussion on the contempt powers of the Court in recent times. Though it has been repeated time and again, still the background of this case needs to be mentioned for the present paper. It is noteworthy that writer Arundhati Roy has faced contempt charges three times including the one already mentioned. The first one was when she wrote an article entitled ‘The Greater Common Good’ which was published in the 20
Outlook magazine. The author had ridiculed the ‘tender concern’ that the Supreme Court judges had expressed in regard to the availability of children’s park for the children of the tribal 18
The Court says, “Rule of Law is the basic rule of governance of any civilised democratic policy. Our Constitutional scheme is based upon the concept of Rule of Law which we have adopted and given to ourselves. Everyone, whether individually or collectively is unquestionably under the supremacy of law…. It is only through the courts that the rule of law unfolds its contents and establishes its concept” in its judgment in: In re Arundhati Roy, AIR 2002 SC 1375. 19 In re Arundhati Roy, AIR 2002 SC 1375. 20 Published on May 24, 1999, also available at http://www.narmada.org/gcg/gcg.html
10 | P a g e
inhabitants who would be displaced when the height of the Sardar Sarovar dam was increased. The author had pointed out the ground reality of the plight of the hitherto happy, simple minded tribals who had been living among nature’s beautiful creations for ages and who had now, not even been allotted any land for rehabilitation. However, such thoughts of the author did not go down well with the supreme judicial authority of the country. Two judges of the Supreme Court felt that these comments made by her were prima facie a misrepresentation of the proceedings of the Court and constituted contempt of Court.
The Court failed to realize the fundamental relation between the authority of any institution, and the respect and trust of the people that such institution commands. The trust in the honesty and integrity of the judges is inspired by their work. If such a fundamental rule is respected and is actually practised, then certainly the Courts can do without exercise of powers of contempt of court. However, it seems that it is not obsolete in India despite the fact that Article 19(2) of the Constitution permits, inter alia, on the ground of contempt of court only ‘reasonable restrictions’ on the fundamental right to freedom of speech and expression, guaranteed by Article 19(1) (a). So it is disheartening to note that although our law is based on English law, our courts follow 21
English precedents discarded as outdated in the very land of its origin, namely, UK . B. JUDICIAL INTERPRETATION OF CONTEMPT LAW IN OTHER INDIAN CASES
In light of the Arundhati Roy case, we can have a better understanding of such travesties of justice when two earlier instances of contempt proceedings are compared. One being the 22
Shivshankar’s case wherein harsh criticism of the judiciary was held not to be contemptuous; 23
and the other is the Namboodripad’s case. In the latter case, Namboodripad had been convicted for contempt for a speech which was a pure theoretical statement on the role of the judiciary from a Marxist perspective. While criticizing the lack of a standard code for execution of contempt proceedings, the critics have pointed out that the fact that Shivshankar was a former judge of a High Court and later a minister in the central government was the difference between
21
S.P. Sathe, Accountability of the Supreme Court, ECONOMIC AND POLITICAL WEEKLY, April 13, 2002, at 1383. 22 P.N. Dua vs. P. Shiv Shanker and Ors., AIR 1988 SC 1208. 23 E.M. Sankaran Namboodripad v. T. Narayanan Nambiar, AIR 1970 SC 2015.
11 | P a g e
24
him and Namboodripad. Although this might have been nothing more than sheer coincidence, that was still enough for some sections of scholars to raise the issue of disparity in the attitude of the Court as far as freedom of speech vis-à-vis contempt was concerned. This is very significant in light of the present approach of the Supreme Court while dealing with the contempt proceeding against Arundhati Roy. In light of these cases, it has been rightly observed that a more tolerant and sensitive, but not sentimental court, would doubtless earn greater public 25
admiration. The concept of public admiration is also one that needs to be examined, especially in the context of public response to media articles or television programmes
26
. The recent Wah
India case brings to light how the gullibility of the readers is often overestimated, making the media vulnerable to the offence of ‘scandalizing the court.’ The basis for initiating contempt proceedings against the editor, Madhu Trehan, was that the magazine report had ‘scandalised the court’ by making an imputation that some Judges of the Delhi High Court were not perceived in the most honest light by some senior advocates whose ratings the magazine had collated.
24
S.P. Sathe, Accountability of the Supreme Court, ECONOMIC AND POLITICAL WEEKLY, April 13, 2002, at 1384. 25 Shri Surya Prakash Khatri & Anr. v. Smt. Madhu Trehan and Others, 2001Cri.L.J. 3476. 26 V.Venkateswaran, What constitutes scandalizing the court? available at http:// www.flonnet.com/fl1810/18101000.htm
12 | P a g e
FREE SPEECH & CONTEMPT LAW Unfortunately, however, when it comes to contempt and scandalising, the Court has adopted exactly the chain of reasoning that it has rejected in the public order cases. As early as 1953, in 27
Aswini Kumar Ghose v. Arabinda Bose , the Court observed that “it is obvious that if an impression is created in the minds of the public that the Judges in the highest Court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can 28
possibly be imagined.” Subsequently, in D.C. Saxena v. CJI , the Court held that “Any criticism about judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of the judges and brings administration of justice to ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised. Motives to the judges need not be attributed. It brings the administration of justice into disrepute. Faith in the administration of justice is one of the pillars on which democratic institution functions and sustains.” Notice the chain of causation the Court is working with here: it holds faith in the administration of justice as a necessary pre-requisite to the administration of justice, and prohibits criticism that would cause other people to lose their faith in the judiciary. This is exactly akin to a situation in which I make an argument advocating Marxist theory, and I am punished because some people, on reading my article, might start to hold the government in 29
contempt, and attempt to overthrow it by violent means . Not only is it absurd, it is also entirely disrespectful of individual autonomy: it is based on the assumption that the person legally and morally responsibly for a criminal act is not the actor, but the person who convinced the actor through words and arguments, to break the law – as though individuals are incapable of weighing up competing arguments and coming to decisions of their own accord. Later on, in the same case, the Court holds that scandalising includes “all acts which bring the court into disrepute or disrespect or which offend its dignity or its majesty or challenge its authority.” As we have seen before, however, disrepute or disrespect of an institution cannot in itself be a ground for punishment, unless there is something more. That something more is actual disruption of justice, 27
AIR 1953 SC 75 1996 SCC (7) 216 29 Gautam Bhatia, Free Speech and Contempt of Courts – II: Article 19(1)(a) and Indian Law, CIS, April 15, 2014 sourced from http://cis-india.org/internet-governance/blog/free-speech-and-contempt-of-courts-2013-ii-article-19-1a-and-indian-law 28
13 | P a g e
which is presumably caused by people who have lost their confidence in the judiciary, but in eliding disrepute/disrespect with obstruction of justice, the Court entirely fails to consider the individual agency involved in crossing that bridge, the agency that is not that of the original speaker. This is why, again, in its sedition cases, the Court has gone out of its way to actually require a proximate relation between “disaffection” and public order breaches, in order to save the section from unconstitutionality. Its contempt jurisprudence, on the other hand, shows no such regard. It is perhaps telling that the Court, one paragraph on, adopts the “blaze of glory” formulation that was used in an 18th century, pre-democratic English case. Indeed, the Court draws an express analogy with sedition, holding that “malicious or slanderous publication inculcates in the mind of the people a general disaffection and dissatisfaction on the judicial 30
determination and indisposes in their mind to obey them.” Even worse, it then takes away even the basic protection of mens rea, holding that all that matters is the effect of the impugned words, regardless of the intention/recklessness with which they were uttered. The absence of mens rea, along with the absence of any meaningful proximity requirement, makes for a very dangerous cocktail – an offence that can cover virtually any activity that the Court believes has a “tendency” to certain outcomes:
31
“Therefore, a tendency to scandalise the court or tendency to
lower the authority of the court or tendency to interfere with or tendency to obstruct the administration of justice in any manner or tendency to challenge the authority or majesty of justice, would be a criminal contempt. The offending act apart, any tendency if it may lead to or tends to lower the authority of the court is a criminal contempt. Any conduct of the contemnor which has the tendency or produces a tendency to bring the judge or court into contempt or tends to lower the authority of the court would also be contempt of the court.” The assumption implicit in these judgments – that the people need to be protected from certain forms of speech, because they are incompetent at making up their own minds, in a reasonable manner, about it – was made express in Arundhati Roy’s Case, in 2002. After making observations about how confidence in the Courts could not be allowed to be “tarnished” at any cost, the Court noted that “the respondent has tried to cast an injury to the public by creating an impression in the mind of the people of this backward country regarding the integrity, ability and fairness of the institution of judiciary”, observed that the purpose of the offence was to protect the (presumably backward)
30
Ibid. Supra Note 2
31
14 | P a g e
public by maintaining its confidence in the judiciary, which had been enacted keeping in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who acknowledly (sic) have the tremendous faith in the dispensers of Justice.” So easy, indeed, to mislead, that there was no need for any evidence to demonstrate it: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of 32
any civilised society.” The American legal scholar, Vince Blasi, has outlined a “pathological perspective” of free speech. According to him, heightened protection of speech – even to the extent of protecting worthless speech – is important, because when the government passes laws to regulate speech that is hostile towards it, it will, in all likelihood, over-regulate purely out of self-interest, sometimes even unconsciously so. This is why, if the Courts err, they ought to err on the side of speech-protection, because it is quite likely that the government has over-estimated public order and other threats that stem out of hostile speech towards government itself. The pathological perspective is equally – if not more – applicable in the realm of contempt of Court, because here the Court is given charge of regulating speech hostile towards itself.
33
Keenly
aware of the perils of speech suppression that lie in such situations, we have seen that the United States and England have abolished the offence, and the Privy Council has interpreted it extremely narrowly. The Indian Supreme Court, however, has gone in precisely the opposite direction. It has used the Contempt of Court statute to create a strict-liability criminal offence, with boundlessly manipulable categories, which is both overbroad and vague, entirely inconsistent with the Court’s own free speech jurisprudence, and at odds with free speech in a liberal democracy.
32
Robbertson, G. and Nichol, A., (2002) : “Media Law”, New Delhi : Penguin Book India Pvt. Ltd. p. 34 Ibid.
33
15 | P a g e
NEED FOR A FRESH LOOK AT CONTEMPT LAW The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority. But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience. In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.
In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants. Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.
This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb
34
, “The
description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”. “Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken 35
comments of ordinary men”. In R. Vs. Commr. of Police Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”. Sometimes an upright judge is
34
(1981) A.C. 303 (1968) 2 QB 150
35
16 | P a g e
unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced. Once a British newspaper ran a banner headline calling the majority judges of the House of 36
Lords who decided the Spycatcher case (Attorney General vs. Guardian Newspaper ,) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion. 37
In Balogh vs Crown Court at Albon , the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action. Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’. He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to 38
freedom of speech. To illustrate, in Duda’s case , a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates. He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action. Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ? We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, 36
1987 3 AllE.R.316 (1975) AC 373 38 AIR 1988 SC 1208 37
17 | P a g e
the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary. It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness. If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court. But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them. I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.
39
Supra Note 3 p. 98
18 | P a g e
39
CONCLUSION Contempt of court is a broad, common law doctrine. It was described by Joseph Moscovitz, in an often quoted article in the Columbia Law Review, as “the Proteus
40
of the legal world, assuming
41
an almost infinite diversity of forms.” It was clearly defined by Lord Diplock in a relatively modern case in the following way: [A]lthough criminal contempts of court may take a variety of forms they all share a common characteristic: they involve an interference with the due administration of justice, either in a particular case or more generally as a continuing process. It is justice itself that is flouted by contempt of court, not the individual court or judge who is 42
attempting to administer it. In common law jurisdictions, contempt of court has traditionally been classified as either in facie curiae (in front of the court) or ex facie curiae (outside the court), or as criminal or civil. The latter distinction can be confusing because it has nothing to do with whether the proceedings are criminal or civil. Criminal contempt occurs when there is interference with or disruption of criminal or civil court proceedings. Examples include yelling in the court room, publishing matters which may prejudice the right to a fair trial (“trial by media”), or criticisms of courts or judges which may undermine public confidence in the judicial system (“scandalizing the court”). Civil contempt occurs when a person disobeys a court order and is subject to sanctions, such as a fine or imprisonment. The purpose of civil contempt is not only to enforce court orders, but also to maintain public confidence in the judicial system “since the administration of justice would be undermined if the order of any court of law could be 43
disregarded with impunity.” As Lord Scarman has pointed out, the distinction between the two may have less relevance today, but it still useful for classification purposes: The distinction between ‘civil’ and ‘criminal’ contempt is no longer of much importance, but it does draw attention to the difference between on the one hand contempts such as ‘scandalizing the court’, physically interfering with the course of justice, or publishing matters likely to prejudice a fair trial, and on those other contempts which arise from non-compliance with an order made, or 44
undertaking required in legal proceedings .
40
A mythological sea god capable of changing shape at will. J. Moskovitz, ‘Contempt of Injunctions, Civil and Criminal’ (1943) 43 Col. LR 780. 42 AG v. Leveller Magazine Ltd. [1979] AC 440, p. 449. 43 AG v. Times Newspaper Ltd. [1974] AC 273, p. 308. 44 Home Office v. Harman [1983] 1 AC 280, p. 310. 41
19 | P a g e
BIBLIOGRAPHY 1. Aggarwal, Vir Bala (2002) : “Media and Society Challenges and Opportunities”, New Delhi : Concept Publications. 2. Basu, D.D. (1980) : “Law of Press in India”, New Delhi : LexisNexis Buttersworths. 3. Basu, Durga Das (2002) : “Shorter Constitution of India” New Delhi: Wadhwa Publications. 4. Bhasin, Lalit (2010) : “Media World and Law”, New Delhi : Universal Law Publishing Co. Pvt. Ltd. 5. Divan, Madhavi Goradia, (2010) : “Facets of Media Law”, Lucknow : Eastern Book Company. 6. Gour, H.S. (1998) : “Penal Laws of India”, Delhi : Delhi Law House Pvt. Ltd. 7. Joshi, Uma (1999) : “Textbook of Mass Communication and Media”, New Delhi : Anmol Publications Pvt. Ltd. 8. Madabhushi, Sridhar (Dr.), (2007) : “Law of Expression (An Analytical Study of Laws for Media)”, Hyderabad : Asian Law House. 9. Mahajan, V.D., (1993) : “Modern Indian History”, New Delhi : S. Chand Group. 10. Natarajan, S., (1962) : “A History of the Press in India”, New Delhi : Asian Publisher House. 11. “Press, Media and Communication Laws, (Legal Manual)”, (2002) New Delhi : Universal Law Publishing Co. 12. Rayudu, C.S. and Rao, S.B. Nageswara, (1995) : “Mass Media and Regulation”, Mumbai : Himalaya Publishing House. 13. Robbertson, G. and Nichol, A., (2002) : “Media Law”, New Delhi : Penguin Book India Pvt. Ltd.
20 | P a g e
