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Contempt power and some questions V.R. Krishna Iyer

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    PEOPLE S WATCH ANDHRA PRADESH Contempt power and some questions V.R. Krishna Iyer ... Contempt power is a case of survival after death; a vague, vagarious and
    Message 1 of 1 , Oct 2, 2007
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      Contempt power and some questions

      V.R. Krishna Iyer

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      Contempt power is a case of survival after death; a vague, vagarious
      and jejune branch of jurisprudence, which is of ancient British

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      The stature of the judicature is so high and its powers so wide that
      any action designed to debunk, defile or denigrate the great dignity
      and impartial integrity of the institution is regarded as an invasion
      on the people's faith in the court's fearless, bias-free, favour-free
      functionalism and its solemn credibility as a constitutional
      instrumentality of justice. But what happens if judges themselves
      commit, or the judiciary as an institution commits, what is
      extravagantly excessive, arbitrary, authoritarian, mala fide or

      The fundamental right of free speech of a free people comes into
      operation at that stage, and informed public criticism of judicial
      misconduct and incompetence or institutional turpitude or
      dysfunctionalism creates corrective public opinion through vigilant
      scrutiny and media publicity. Speech is duty and silence cowardice,
      since information, accountability and transparency of the judiciary
      are inalienable attributes of any democratic institution. The
      judicature is a democratic sentinel of people's rights, never an
      impregnable fortress of authoritarianism enjoying immunity from
      people's speech, with fair behaviour, high integrity and great
      competency incorruptibly above suspicion.

      Indeed, contempt law must doctrinally accept the proposition that
      truth of adverse allegation is a valid justification.

      The great jurist Seervai observed thus:

      "This raises the question whether truth is a defence to an alleged
      contempt of court if a person, or the Press allege and publish proofs
      of the misbehaviour of a judge. The judgments of the Supreme Court
      are not in a tidy state. But a careful analysis of our Supreme Court
      judgments, and judgments of English and Australian Courts, shows that
      truth is, and must be a complete defence to allegations of bribery,
      corruption, bias and other misbehaviour of a Judge. To hold otherwise
      would be to nullify the provisions of Articles 124(4) and (5) in a
      practical sense, for few people would expose themselves to being
      committed for contempt in order to bring a corrupt judge to book.
      Secondly, so to hold is to put the judges above the Constitution
      which expressly provides for the removal of a judge for proved

      "Judge Jerome Frank of the U.S. Court of Appeals sensibly explained
      that he had little patience with, or respect for, that suggestion. I
      am unable to conceive … that, in a democracy, it can ever be unwise
      to acquaint the public with the truth about the workings of any
      branch of government. It is wholly undemocratic to treat the public
      as children who are unable to accept the inescapable shortcomings of
      man-made institutions … The best way to bring about the elimination
      of those shortcomings of our judicial system which are capable of
      being eliminated is to have all our citizens informed as to how that
      system now functions. It is a mistake, therefore, to try to establish
      and maintain, through ignorance, public esteem for our courts.

      "We need judges who are trained for the job, whose conduct can be
      freely criticised and is subject to investigation by a Judicial
      Performance Commission; judges who abandon wigs, gowns, and
      unnecessary linguistic legalisms; judges who welcome rather than shun
      publicity for their activities."

      "Contempt of court is the Proteus of the legal world, assuming an
      almost infinite diversity of forms." Indeed, says Ronald L.
      Goldfarb: "Neither Latin American nor European civil law legal
      systems use any device of the nature or proportions of our contempt
      power. While critics of these systems may make preferential
      comparisons, so long as these countries keep well within anarchy on
      the one hand and totalitarianism on the other, there is room to
      question whether indeed this power is as necessary and essential as
      our decision-makers suggest."

      In sum, contempt power is a case of survival after death; a vague,
      vagarious and jejune branch of jurisprudence, which is of ancient
      British vintage. It has colonially incarnated as part of the corpus
      juris of the Indian Republic. My separate opinion in Mulgaokar's case
      (1978 SC 727) has been referred to approvingly in Shiv Shanker's case
      (1988 SC 1208). Chief Justice Sabyasachi Mukherjee observed:

      "Krishna Iyer, J. in his judgment observed that the Court should act
      with seriousness and severity where justice is jeopardised by a gross
      and/or unfounded attack on the Judges, where the attack was
      calculated to obstruct or destroy the judicial process. The Court
      must harmonise the constitutional values of free criticism, and the
      need for a fearless curial process and its presiding functionary, the
      judge. To criticise a Judge fairly albeit fiercely, is no crime but a
      necessary right. Where freedom of expression subserves public
      interest in reasonable measure, public justice cannot gag it or
      manacle it. The Court must avoid confusion between personal
      protection of a libelled judge and prevention of obstruction of
      public justice and the community's confidence in that great process.
      The former is not contempt but latter is, although overlapping spaces
      abound. The fourth functional canon is that the Fourth Estate should
      be given free play within responsible limits even when the focus of
      its critical attention is the Court, including the Higher Courts. The
      fifth normative guideline for the Judges to observe is not to be
      hypersensitive even where distortions and criticisms overstep the
      limits, but to deflate vulgar denunciation by dignified bearing, and
      the sixth consideration is that if the court considers the attack on
      the Judge or Judges scurrilous, offensive, intimidatory or malicious
      beyond condonable limits, the strong arm of the law must strike a
      blow on him who challenges the supremacy of the rule of law by
      fouling its sources and stream."

      The dauntless and celebrated Lord Denning observed in an illustrious

      "Let me say at once that we will never use this jurisdiction as a
      means to uphold our own dignity. That must rest on surer foundations.
      Nor will we use it to suppress those who speak against us. We do not
      fear criticism, nor do we resent it. For there is something far more
      important at stake. It is no less than freedom of speech itself.

      "It is the right of every man, in Parliament or out of it, in the
      Press or over the broadcast, to make fair comment, even outspoken
      comment, on matters of public interest. Those who comment can deal
      faithfully with all that is done in a court of justice. They can say
      that we are mistaken, and our decisions erroneous, whether they are
      subject to appeal or not. All we would ask is that those who
      criticise us will remember that, from the nature of our office, we
      cannot reply to their criticisms. We cannot enter into public
      controversy. Still less into political controversy. We must rely on
      our conduct itself to be its own vindication. "

      These great observations were made on a case where a politician as
      eminent as Michael Foot said: "Denning is an ass." And The Observer
      gave the headline, "Why Denning is an ass."

      In a similar strain, Chief Justice P.B. Gajendragadkar (1965 SC 745)
      expressed a liberal view, quotationally approved by Justice
      Savyasachi Mukherjee:

      "We ought never to forget that the power to punish for contempt,
      large as it is, must always be exercised cautiously, wisely and with
      circumspection. Frequent or indiscriminate use of this power in anger
      or irritation would not help to sustain the dignity or status of the
      court, but may sometimes affect it adversely. Wise Judges never
      forget that the best way to sustain the dignity and status of their
      office is to deserve respect from the public at large by the quality
      of their judgments, the fearlessness, fairness and objectivity of
      their approach, and by the restraint, dignity and decorum which they
      observe in their judicial conduct."

      Notice the further emphasis which is law binding on all courts.

      "It has been well said that if judges decay, the Contempt Power will
      not save them and so the other side of the coin is that judges, like
      Caesar's wife must be above suspicion per Krishna Iyer, J. in
      Baradakanta Mishra v. Registrar of Orissa High Court, (1974) 1 SCC
      374: (AIR 1974 SC 710). It has to be admitted frankly and fairly that
      there has been erosion of faith in the dignity of the court and in
      the majesty of law and that has been caused not so much by the
      scandalising remarks made by politicians or ministers but the
      inability of the courts of law to deliver quick and substantial
      justice to the needy. Many today suffer from remediless evils which
      courts of justice are incompetent to deal with. Justice cries in
      silence for long, far too long. The procedural wrangle is eroding the
      faith in our justice system. It is a criticism which the Judges and
      lawyers must make about themselves. We must turn the searchlight
      inward. At the same time we cannot be oblivious of the attempts made
      to decry or denigrate the judicial process, if it is seriously done."

      Lord Atkin is a marvel of illumination of the law. He wrote:

      "Whether the authority and position of an individual judge, or the
      due administration of justice, is concerned, no wrong is committed by
      any member of the public who exercises the ordinary right of
      criticising, in good faith, in private or public, the public act done
      in the seat of justice. The path of criticism is a public way: the
      wrong-headed are permitted to err therein; provided that members of
      the public abstain from imputing improper motives to those taking
      part in the administration of justice, and are genuinely exercising a
      right of criticism, and not acting in malice or attempting to impair
      the administration of justice, they are immune. Justice is not a
      cloistered virtue; she must be allowed to suffer the scrutiny and
      respectful, even though outspoken, comments of ordinary men."

      http://www.hindu. com/2007/ 10/01/stories/ 2007100155681200 .htm

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