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Should the power to punish contempt of court be diluted?

K.T. Thomas

The present law of contempt of court may have inadequacies but its dilution will be disastrous to the functioning of the judiciary.

THOSE WHO advocate tinkering with contempt of court jurisdiction are highlighting mostly the point that judicial functionaries are also accountable, like any other organ of constitutional functions. No doubt, judges are accountable and must always be so. But power to punish contempt of courts has been proved to be a time tested safety valve for judges to perform the duties of their office without fear or favour, affection or ill will. Many judges who believed ardently in the necessity of such power while they were in office, pleaded for its dilution, if not its total abolition, after they demitted office. But I have not come across sound reasoning for diluting the contempt of court jurisdiction even after four years of retirement from office. I strongly feel that proposals for tinkering with the contempt of court jurisdiction as are now put forward will be perilous to the efficacy of the judicial function.

The propounders of the theory of lessening the power to punish contempt of court normally advance the reasoning that in fairness truth should be permitted as a defence. A still further demand is to allow the plea of "bona fide belief of the contemner" (that the allegation is true) to be a valid defence. Fortunately, serious acceptance has not been given to stretching the defence to that effect.

I would strongly defend the right of the public to criticise judgments delivered by any court, including the High Courts and the Supreme Court because every judgment is a public document and every member of the public has a right to point out errors or drawbacks in them or to highlight unwholesome repercussions which that judgment could possibly arouse. But the right to criticise a judgment cannot be stretched to the extent of publishing imputations against the judge with motives. Otherwise the judge, against whom such allegations are made, must be given the opportunity to defend himself or herself in public. But society cannot afford to permit judges to appear on the platform even to defend their judgments in public meetings or before the press or give public statements thereafter to exculpate themselves.

Litigants' reactions

It is a stark reality that most of the litigants honestly believe that the cause involved in their litigation is just and true and hence their cause is liable to be upheld by the judge. But when the verdict goes against them, they feel that either their counsel was won over or the judge was won over by the opposite side. The percentage of litigants who feel they lost the cause due to its inherent weakness is negligibly small. If there is a system that permits litigants to assail the judges who decided their case, every judicial personage will have to face allegation from most of the litigants in his or her court.

I have identified three main reasons why even truth shall not be permitted to be a defence against an action for contempt, much less the defence of "bona fide belief that the allegation is true." The first is, the judge who ultimately succeeds in showing that there was no truth in the allegation made against him, (after years involved in the proceedings to clear himself) would have already suffered the ignominy and loss of reputation.

Secondly, a substantial time of the judges would be spent defending themselves in such actions as almost all judges would be vulnerable to face such attacks hurled by defeated litigants. The third, and perhaps the most serious consequence, is that upright judges (the percentage of that class is even today quite substantial) would become demoralised and might resort to unethical tactics for averting such allegations being made against them. Even strong and honest judges could turn to timid and feeble genuflecting before those prone to browbeating them or habitually hurling imputations at judges. Imagine the incalculable damage it could inflict on the judicial system itself. This is precisely the reason why in almost all civilised democratic countries protection is given to the judges against such imputations.

Then the question is, what is the other way out to expose dishonest and corrupt judges. So far as the subordinate judiciary is concerned, genuine complaints of mala fide exercise in judgment making can be forwarded to the High Court concerned. Article 235 of the Constitution confers on the High Court the power to control subordinate courts. It has been held by the Supreme Court, repeatedly, that the power of control envisaged in Article 235 includes the power to make enquiries into the conduct of the judges of the lower courts and also to take disciplinary action including imposition of compulsory retirement (the High Court can even recommend to the Governor that the judicial officer concerned should be dismissed from service). Thus every High Court can effectively deal with the complaints received against judicial officers of the subordinate judiciary. I can say that many High Courts discharge this power of control over the subordinate judiciary satisfactorily. But it is only at the level of subordinate judiciary.

What about the judges of the High Courts and the Supreme Court? There must be a machinery to deal with the erring judges of such higher level also. Since the impeachment process envisaged in the Constitution has proved ineffective, other alternatives have to be suggested and discussed. But inertia in finding alternative remedies is hardly a justification to dilute the power of the courts to punish contempt of court. The present law of contempt of court may have inadequacies but its dilution, as suggested by some quarters, will be disastrous to the functioning of the judiciary.

(The writer is a former Judge of the Supreme Court of India.)

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