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Mainstream, VOL LVIII No 34, New Delhi, August 8, 2020

Contempt of Court | Barun Das Gupta

Friday 7 August 2020, by Barun Das Gupta

In a democracy, no institution of the State — the judiciary included — can or should be above public scrutiny and criticism. Criticism is not contempt. Contempt is when the judiciary as an institution is sought to be brought into public disrepute and its integrity as an institution is sought to be questioned.

It was Lord Acton who said: “Authority that does not exist for Liberty is not authority but force.” He also famously said: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority; still more when you superadd the tendency of the certainty of corruption by authority.”

The very idea that in a democracy some people are above the ordinary citizenry is antithetical to the concept of democracy. What makes an ordinary person important is seldom because of his intrinsic qualities of character. It is the office that he holds that makes him important and powerful. Divested of the office he becomes just an ordinary citizen. Like any other human being a judge also suffers from the same frailties and foibles ingrained in human nature, while an individual judge may also suffer from folie de grandeur.

P. B. Sawant, himself a retired judge of the Supreme Court, has rightly observed in his book A Grammar of Democracy “Although the judges are supposed to keep their prejudices and biases outside the Court, it cannot be gainsaid that the judge’s social, ideological and personal outlook do have a bearing on his decisions. His upbringing, education, social surroundings and economic and social class, do influence his thinking. That is why oftentimes we have dissenting judgments written in the same framework of law.” (P.. 125)

Judges can make mistakes in interpreting a law and the common citizen has no remedy against it because it is his fellow judges who will decide whether the particular law was misinterpreted or misapplied. People of every profession have a strong fellow-feeling and a tendency to stand by one another. The judiciary is no exception. Years ago, in a financial scam case, the Supreme Court directed the inquiring officer to submit all his reports to the court and not to the minister concerned or the Union Government. Later, however, the Supreme Court rescinded its own order.

It was a right decision. The Constitution has defined the jurisdiction of the Legislature, the Executive and the Judiciary. Just as the Executive cannot interfere in matters that fall exclusively within the jurisdiction of the Judiciary, the Judiciary also cannot usurp the functions of the Executive.

The ground situation is that when a judge has committed a professional misconduct or has deported himself in a manner that brings the judiciary into disrepute, there is a great unwillingness on everybody’s part to proceed against him as the law ordains. But there have been instances that when a High Court or Supreme Court judge was about to be impeached in Parliament, he chose to resign rather than defend himself in the impeachment proceedings.

The Contempt of Court law of the United States says that “A person shall not be guilty of contempt of court on the ground that he has published (whether by words, spoken or written, or by signs, or by visible representations, or otherwise) any matter which interferes or tends to interfere with, or obstructs or tends to obstruct the course of justice . . .”

In England, the Contempt of Court Act, 1981, says:

“The strict liability rule.

In this Act “the strict liability rule” means the rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so.

2 Limitation of scope of strict liability.

(1) The strict liability rule applies only in relation to publications, and for this purpose “publication” includes any speech, writing, or other communication in whatever form, which is addressed to the public at large or any section of the public.

(2) The strict liability rule applies only to a publication which creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.

(3) The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication.”

The law in England is much more liberal than in India.

In a democracy, public perception matters. One must not only be honest but must be seen to be honest. When the people find that the judiciary is showing a tendency to fall in line with the decisions of the Executive, whatever these decisions are, doubts are bound to occur whether the judiciary is acting under pressure. The expression of this doubt, by word of mouth or in writing, should not be construed as contempt of court. Rather, the judiciary should make an honest introspection whether it has lived up to the standard of independence and objectivity it is expected to rise to.

The law on the contempt of court should not be used to suppress criticism which is justified and does not purport to bring the judiciary as an institution to public ridicule and raise doubts about its integrity. The Supreme Court as an institution is different from the body of individual judges that constitutes it. Criticism of individual judges on valid grounds should not be construed as an affront to the institution of the judiciary as such.

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