Contempt of Court is currently a hot issue in India. Many people, mainly politicians, criticize and sometimes abuse the higher judiciary, in a manner that would have, in the past, attracted contempt of court proceedings. This article is an attempt to present the subject in the right perspective.
A brief look at the recent scenario in this respect is relevant. Last month (January 2007), in Kerala State, Students Federation of India (SFI), the student wing of the ruling Communist Party (Marxist), organized a virulent campaign against the then Chief Justice (CJ) of the Kerala High Court shortly after a bench that included him ruled against the State Government’s new legislation to control educational institutions. After publicizing several allegations against the CJ through the print and visual media, SFI submitted petitions against the CJ to the President of India and the Lok Sabha Speaker. The CJ, who had just days to retire, refused to react. The proper procedure in case of grievances against higher judiciary was to submit a complaint to the Chief Justice of India (CJI).
Then came two instances involving State Ministers. In Tamil Nadu State (TN), the Minister for Electricity attacked the Madras High Court at a public function at which the Chief Minister of the State was also present. This led to wide protests, particularly by the advocates. In the meantime, again at a public event in Kerala, a senior Minister, made a statement to the effect that justice tilts according to the weight of money, in front of the press and the TV cameras.
The citizens’ opinion on these events is not clearly known. Generally speaking, there appears to be two different schools of thought. One is that the courts should be strict about contempt. The other is that contempt law is archaic and should not be invoked in a democracy except in rare circumstances. A major spokesman for the second group is Justice Markandey Katju, a sitting judge of the Supreme Court of India. He delivered a lecture on the subject at the Indian Society of International Law, New Delhi on January 17, 2007. An adaptation of the presentation was published in The Hindu dated January 22, 2007 in article format.
In his article, J. Katju asserts, “The basic principle in a democracy is that the people are supreme… the people of India are the masters and all authorities (including the courts) are their servants. Surely, the master has the right to criticize the servant if the servant does not act or behave properly”. The Justice goes on to argue that Article 19(1)(a) of the Constitution dealing with freedom of speech and expression is primary and Articles 129 and 215, which bestow the power of contempt, are subsidiary.
J. Katju further states that much of our Law of Contempt is a hangover from the British rule. In England, the judges were representatives of the King and therefore had to maintain the dignity and majesty of that position. In a democratic India, the situation is different. It is time, according to the Justice, that following the examples of modern England, some of the Commonwealth countries, and the United States, India should do away with the obsolete contempt law.
J. Katju, again, claims, “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.” In his view, contempt law should be invoked only in dire situations like, for instance, “ someone jumps up on to the dais of the court and runs away with the court file or keeps shouting and screaming in the court or threatens a party or a witness.”
There are, of course, different diamensions to the stand taken by J. Katju and others like him. First of all, the law is not about contempt of judges, but contempt of court. It is not meant to protect an individual judge as such but to safeguard the dignity and prestige of the courts. Contempt law is a tool to be used, when necessary, to maintain the public trust in, and respect for the courts.
The ‘master’ and ‘servant’ relationship in a democracy may not be as simple as J. Katju presents. The people's power is enforced through the electoral system and not individually. Once appointed through the due process under the Constitution, the position of a judge is inviolable. The ‘master’ cannot chastise the ‘servant’ at will or through extra-constitutional methods.
The right to freedom of speech ensured by Article 19(1)(a) is not a license to slander individuals or institutions. Constructive criticism is different from broadcasting unfounded allegations. Therefore the question is what amounts to genuine criticism. Anything that goes beyond authentic review of judicial actions should attract the mischief of Law of Contempt. But J. Katju’s view is, “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.”
There is a deeper angle to this test recommended by J. Katju. The functioning of the courts cannot only mean the judges and lawyers and others involved merely going through the motions without disturbance. Isn’t the faith of the citizens in the judicial system also an equally important factor? If the answer to this question is ‘yes’, can the judiciary remain silent when deliberate attempts are made to sabotage the confidence of the people in the judicial system?
The ‘masters’, People of India, want to uphold the Constitution. Maligning the judiciary, which is a crucial part of the ‘servant’ group, can lead to undermining the Constitution. Does the judiciary have a duty to interfere to prevent such a risk?
Perhaps we should be talking about contempt of Constitution and not contempt of court.
Ends.
[Earlier this week, the Kerala High Court initiated criminal contempt of court proceedings against the Minister who reportedly said that justice tilts according to the weight of money. The Minister issued an oral statement to the media that his words were misunderstood. The Advocate General (AG) argued on behalf of the Minister citing Justice Katju’s lecture, but the court did not accept his pleading. The Minister has been directed to present himself before the court on February 15, 2007. Already criticism has surfaced against the AG representing the accused in a criminal contempt of court case.]
What are your views on this subject? You can either post comments on this Blog, or email me (abrahamtharakan1@gmail.com). Unless otherwise stipulated your mail would be published on the Blog if I feel it appropriate, with your name and email id. Come on, please express yourself.
Abraham Tharakan.
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