Tuesday, December 4, 2007

Transparency versus Contempt of Court

Transparency versus Contempt of Court

Mainstream, vol XLV, No.50

Let Not The Remedy Be Worse Than The Disease

Monday 3 December 2007, by P K Chatterjee

There is no controversy as to the necessity for the summary power given to the High Courts and the Supreme Court of India to punish civil contempt, that is, deliberate disobedience of the order or deliberate obstruction to the proceedings of the courts. It is the power to punish summarily for criminal contempt of scandalising of courts or judges, that has given rise to controversy. Should it be allowed to continue at all or should it be statutorily defined and restricted so that freedom of speech and freedom of press is not affected or curtailed? Should truth of the allegation be a complete defence to the charge or only a factor mitigating the sentence? It must be clearly understood that defamatory attack on a judge peronally is not contempt of court. It is personal attack relating to the administration of justice which constitutes criminal contempt.

In 1962 a Committee headed by H.N. Sanyal, the then Solicitor General of India, was appointed by the Government of India to review and suggest modifications in the law of contempt of court. The Committee in its report said the summary jurisdiction to punish for contempt of court trenches upon two most important fundamental rights, namely, personal liberty and freedom of speech and expression, rights which are of vital importance in any democratic system and the law should be viewed mainly from that standpoint.

The Sanyal Committee was of the opinion that the law of contempt of court must harmonise with the constitutional guarantee of freedom of expression and personal liberty.

The ancient idea of worshipping the judges as some specially born demigods incapable of any error or vice has disappeared. Today a strong public demand for answerability and transparency in the administration of justice has thrown up a conflict between the public right to criticise the conduct and/or judgment of a judge and the power of the court to punish for criminal contempt. The concept of ‘civil contempt’ is clear and crystallised, but the concept of criminal contempt of scandalising the court or the judge is vague and certainly needs to be legally defined and the procedure for trial and the quantum of punishment clearly laid down by law. As the law stands today, if anyone criticises the court by imputing motives to a judge he is guilty of contempt of court even if he is in a position to prove the truth or justification of the allegation. Truth is no defence, it is only to be considered in mitigation of the quantum of punishment. This is a part of our British heritage, given up in Britain centuries ago. In the course of his judgment in Debi Prasad versus King Emperor (46 Bombay Law Reporter, page 11), Lord Atkin, while setting aside the conviction and sentence passed by Sir Iqbal Ahmed, the Chief Justice of the Allahabad High Court, on the editor and printer of Hindustan Times said:

……….the cases of contempt which consists of scandalising the court itself are fortunately rare and requires to be treated with much discretion. In 1899 this Board pronounced proceedings of this species of contempt to be obsolete in this country, though surviving in other parts of the empire…… There has been no case of criminal contempt in England in the last two centuries.

IN the United States of America there is no contempt like scandalising a court. Justice Black of the US Supreme Court said:

……..freedom of the press lies at the foundation of all democratic organisations for without free political discussions no public education so essential for the proper functioning of the process of popular government, is possible. A freedom of such amplitude might involve risk of abuse. ………But it is better to leave few of its noxus branches to their luxuriant growth than by pruning them away to injure the vigour of those yielding the proper fruits….. It is thus evident that there are two interests of great public importance, namely, the administration of justice and freedom of press, which sometime appear to clash with each other and with the decision of the judiciary which has to perform the task of striking a balance between the requirement of free press and fair trial.

Hon’ble Beverly Mc. Lachlin, a Judge of the Supreme Court of Canada, in an article wrote:

……The public that pays the judges and takes its cases before them, increasingly takes the view that it is entitled to know who these people are…….

The learned judge further wrote that the ……old role of the judge as a symbol of authority whose edicts must be uncritically accepted as just and fitting, has gone the way the absolute classist government went in the nineteenth century.

This, in the view of the judge, involves changes on every front, including changes in their terms of office, how they get their jobs and how they are disciplined and removed and finally changes in the way the judges relate to the public….. (Law Quarterly Review (1994), page 260)

A judge of the High Court of Australia said:

……in the most unlikely event, however, of there being just cause for challenging the integrity of a judge……it could not be contempt of court to do so. Indeed it would be public duty to bring the relevant facts to light….. [1912, (12) Commonwealth Law Reporter, page 280]

Bentham, in his article “Publicity to Judicial Bias”, said: Publicity is the very soul of Justice. It keeps the Judge himself, while trying, undertrial. Financial impropriety are uncommon. It may be seen racism, casteism and predilection quietly and unquestioningly behind the decision. Even when Advocates do recognise that outrageous behaviour from the Bench it may not be in their client’s interest (or in their own) to draw attention to it. But the media can do so. Do we want or not that the Judges should be sensitive to public opinion as expressed in media?

On the other hand we have to remember that if the Parliament of the country is weak, a strong, honest and fearless Judiciary is essential for the protection of the rights of the common man. In a democracy the Parliament is supposed to be the protector and champion of the civil rights of the common man. But the Parliament may be weakened by several factors, as it has happened in India. The Executive has become powerful at the expense of Parliament, both at the Centre and in the States. The Prime Minister, Cabinet Ministers are powerful at the expense of Parliament. The administrative machinery is corrupted, political parties are weak for want of internal discipline, absence of ideals, criminalisation of politics and defective election system. Lawlessness in the administration is rampant. There are no methods for any direct democratic checks on the government. Fortyone per cent of the population is without primary education, living below the poverty level. Mere conferring of a right to vote every five years has not helped any effective democratic system to grow. The media too has not been able to attain the height which a democracy, to be effective, requires. The media is by and large aligned to or is under the control of politicians and political parties, and owned by commercial tycoons. The Prime Minister, Cabinet and other Ministers are more powerful than Parliament.

SIR THOMAS BINGHAM, in his “Denning Lecture” of the Bar Association of Commerce, Finance and Industries on March 2, 1993, said that protection of human rights is the first and foremost business of the Parliament. If the Government was to propose or permit any derogation from fundamental human rights then it could expect to be restrained and even voted down in Parliament. Much of this picture in constitutional arrangement has changed. Most striking development of the present century has been increase in size and power of the executive in particular of the Prime Minister, the Cabinet and other Ministers. Almost equally striking has been the weakening of government.

The learned judge further said:

……..Anyone who sees Parliament as a reliable guardian of human rights in practice is, I suggest, guilty of wishful thinking. (1993 Law Quarterly Review 1994)

Unlike in England India has a written Constitution. The supremacy of the Constitution is enforced by the High Courts and the Supreme Court and these institutions have thus become protectors of civil and constitutional rights of the common people.

Therefore, it is in the interest of the people that honesty, fearlessness and independence of the judiciary is ensured and preserved and any measure likely to undermine it prevented. “Artillery of libels, all that falsehood and malice can invent, or the credulity of a deluded populace can swallow” might undermine the fearless indepen-dence of the judiciary, said Lord Mansfield at the trial of John Wilkes, a radical, in 1770. Unfortunately the failure to induct the best available legal talent for the High Court and Supreme Court Bench, admitted in all relevant quarters, makes the judiciary more vulnerable. In the sixties of the last century, a Law Commission report, made by members like M.C. Setalvad, M.C. Chagla and several other topmost lawyers, criticised the quality of the people elevated to the Bench; the situation has not changed even now. A retired judge of the Supreme Court said recently that twenty per cent of the judges are corrupt.

But the fact to notice is that in spite of all the infirmity and weaknesses the increasing demand for judicial enquiry into serious cases of crimes by powerful and important persons, corruption and other serious administrative and political lapses on their part, the increasing volume of Public Interest Litigations and other cases, in a majority of which the state is a party, demonstrate the amount and degree of public confidence still reposed in the judiciary. However, to strengthen democracy it is necessary to improve the quality of our judiciary at all levels. Today there is a crying need for evolving a system for the selection of judges which is insulated from the vice of undue influence, canvassing and nepotism.

A National Commission for the Selection of Judges for the High Courts and the Supreme Court is a longstanding demand. Such a Commission can also be empowered to make preliminary enquiry into allegations of corruption against individual judges. Secondly, names of persons selected for appointment as judges must be made open to the public so that no veil of secrecy shrouds the candidates from public scrutiny at the initial stage. This will, in all likelihood, ensure to a large extent that not only the best available legal talents in the country, but also persons of integrity and honesty are appointed to the Supreme Court and High Court Benches. It will also eliminate to a large extent appointments made on considerations other than merit.

Lastly, let the salaries of the judges be increased three or four times the existing scale but the colonial trappings like free furnished official residence, chaprasis, and official cars etc. be removed. Such perquisites do not exist in England, the USA or any other democracy in the world. No government in those countries will dare to use public revenue for such purposes.

It is also high time the recommendation of the Sanyal Commission be implemented. Let the “Criminal Contempt of Court” be defined and the procedure for trial and the quantum of punish-ment laid down clearly.

In the present state of weak moral standards of our political parties, plus criminalisation of politics and a weak media, it will be disastrous to permit open public attacks on the character of the judges of the High Courts and the Supreme Court in relation to their judicial function. From the common people’s point of view the remedy will be much worse than the disease.

The author is a Senior Advocate of the Supreme Court of India.

Courtesy_
http://www.mainstreamweekly.net

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