The Hindu : Opinion / News Analysis : Contempt of court and the triple shield

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Wednesday, Sep 07, 2005

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Opinion - News Analysis

Contempt of court and the triple shield

Prashant Bhushan

The proposed amendment to the Contempt of Courts Act falls far short of what is required to prevent the abuse of this draconian power, which is part of a non-accountable judiciary's `triple shield'.

THE RECENT report of the Parliamentary Standing Committee on the proposed amendment to the Contempt of Courts Act has again focussed attention on the issue of judicial impunity and the lack of accountability of the judiciary as an institution. The wide and unregulated power of contempt given to the courts has been interpreted by the Courts in a manner that has had the effect of intimidating the media from exposing corruption and misbehaviour by the courts and judges. Thus Arundhati Roy was jailed for commenting in her affidavit that the court's contempt notice to her on an untenable petition indicated a disquieting inclination on the part of the Court to "muzzle dissent and stifle criticism." And the order was made by the very judge against whom this comment was directed. Although this was clearly a legitimate comment on the court, and an exercise of a citizen's fundamental right to free speech guaranteed by the Constitution of a democratic republic, the Supreme Court declared it to amount to contempt of court. This sent a clear signal to the media in particular that the court would not hesitate to use this power to "muzzle dissent and stifle criticism."

The question is: does the judiciary stand above our democratic republic?

The draconian power of contempt is not the only reason for the lack of accountability of the judiciary. The primary reason is the lack of any practical mechanism for holding judges of the High Courts and Supreme Court responsible for any misconduct. In order to keep the judiciary independent of the executive, the Constitution provided impeachment as the only method for disciplining errant judges. That remedy was shown to be completely impractical in the Ramaswami case, where the judge escaped removal because the then ruling party, the Congress, abstained from voting in Parliament. This was after the judge was found guilty of many charges of misconduct by a committee of three judges appointed under the Judges Inquiry Act. In that case, evidence of misconduct surfaced in a report by the Accountant General on the purchases made by him from government funds.

Normally, it will not be possible for a citizen to get evidence of a judge's misconduct even for the purpose of drafting an impeachment motion, without an official investigation. By a judge-made law (in Veeraswami's case), the judiciary has ruled that no official investigation can be conducted against a judge without the written permission of the Chief Justice of India. Nobody, of course, dares apply for such permission unless they already have evidence against the judge. This is why there has not been a single official investigation against a judge in the 15 years since the Veeraswami judgment, despite the fact the former Chief Justice Bharucha publicly lamented that at least 20 per cent judges of the higher judiciary were corrupt. This triple shield — no practical remedy for the removal of corrupt judges, no investigation of charges against judges, and the power of contempt — has served to provide complete immunity to judges and has institutionalised judicial impunity.

It is against this background that the proposed amendment to the Contempt of Courts Act must be viewed. The amendment provides that truth may be considered a good defence in contempt proceedings provided it is in the public interest. The Parliamentary Standing Committee, in its recently tabled report on this amendment, while approving it, has suggested the removal of the additional requirement of showing that the truth is also in the public interest. It has expressed the hope that the judge against whom an allegation has been made will not himself or herself sit in judgment over the contempt proceedings, in accordance with natural justice. It has also asked the Government to consider Ram Jethmalani's suggestion that even an allegation made bona fide with due care and caution would not be regarded as contempt.

The Parliamentary Standing Committee has noted the suggestion made by the Committee on Judicial Accountability that the words "scandalising the court or lowering the authority of the court" should be altogether removed from the definition of contempt. This is the part of the definition of contempt that is used to stifle speech, allegations, and comments against judges. This will still leave intact the parts dealing with disobedience of court orders (civil contempt) and interference with the administration of justice, which would include any attempt to threaten or influence a judge, lawyer, litigant, or witness.

Medieval origins

In fact, contempt by `scandalising' the court owes its origin to the medieval ages in Britain, when the courts were considered representatives of the monarch and were called King's Courts or Queen's Courts. Thus, any imputation against the courts was considered an imputation against the sovereign and therefore punishable. The United States has a more liberal dispensation, where only something that presents a clear and present danger to the administration of justice is considered contempt. Although the British origin of contempt law in India has absolutely no relevance today, the judiciary has continued this jurisdiction and gone on to declare that even truth cannot be a valid defence against a charge of contempt.

It is also contended that if the courts are not able to punish scandalous allegations levelled against judges, public confidence in courts will evaporate. This view suggests that the only basis of public confidence in courts is the power to stifle criticism by using the power of contempt.

Obviously, this is an absurd view, since if this were correct, there should be no public confidence in any other institution or individual, for the simple reason that no one other than judges has the power of contempt!

Public confidence in the judiciary depends on its actions and behaviour, especially at a time when enormous publicity is given to its judgments and utterances by the media. Any unfair and scandalous allegations made by disgruntled litigants will be ignored and recognised for what they are by the public. They can be dealt with under the law of defamation. The retention of the power to punish for contempt acts of speech that do not in any way interfere with the administration of justice has removed the last shred of accountability of the higher judiciary in the country. That is why the proposed amendment to the Contempt of Courts Act falls far short of what is required to prevent the abuse of this draconian power.

(The writer is a lawyer specialising in public causes at the Supreme Court of India.)

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