It is interesting to note that in Britain where the Contempt of Court
law evolved and then spread to the U.S. and Commonwealth countries,
this law has almost become extinct. However, the Indian Judiciary
continued to exercise it and also continues to maintain that "truth"
would not be allowed as a defense. Our "just, fair and reasonable"
procedure of trials is thrown to the winds when it comes to the Contempt
of Court law because the prosecutor and the judge are the same, and
absence of bias in such cases is an illusion. In the much-talked about
recent Contempt of Court case (involving Arundhati Roy), the judge
and the prosecutor were one and the same). This Contempt power has
an English origin of regal Middle Ages and is almost obsolete and
obstructive in the modern democratic order. Our judges and legislators
are not anymore delegates of royalties of feudal England. In those
pre-Independence days, the King is the fountain of justice and has
delegated it to judges. So, criticism against a judge is tantamount
to criticism against and contempt of the King's wisdom. Thus, in a
non-democratic feudalistic system, this may have needed to preserve
the supremacy of the King. However, in a democratic society, this
is the most fatal obstruction to freedom of speech and allergic to
our Indian Republic. The present form of Contempt of Court law is
a colonial vintage. We must restructure it to suit the ethos of the
constitution and protect the fundamental rights enshrined in our Constitution.
As mentioned earlier, there is no doubt that the judicial process
must be guarded from scandalizing remarks, vicious stultification
and vulgar debunking. At the same time, it is also necessary to protect
the free speech. It may be a wise suggestion as put forth by Mr. Justice
Black to fight the dangers of democracy in the free-market place of
ideas, associations and petitions. Any direct or indirect punishment
of these freedoms would lead to national self-destruction". As Krishna
Iyer rightly said " the distance between individual liberty and firing
squads is not always as far as it seems".
In 1968, Lord Denning in a celebrated case cautioned that "We must
never exercise this jurisdiction to protect our own dignity, for that
must rest on surer foundations". Ronald L Goldfarb observed that "Contempt
of power is perhaps nearest akin to despotic power of any power existing
under our form of government". Some call this totalitarian, others
say that its absence would lead to anarchy. But it is true that hyper-sensitivity
and peevishness should have no place in the halls of justice as many
feel that this guideline was not adhered to in the Contempt of Court
case against MS Arundhati Roy.
The modern contempt of court law evolved as an antidote to activist
politics and political journalism as they threatened the supremacy
of the judiciary. The "summary" punishment resorting to the contempt
power was concretized way back in 1765 in the Almon case. In 1868
the legendary Surendranath Banerjee was punished despite his apology
under the contempt law. In 1908 Lokmanya Tilak and Gandhiji in 1920
in Young India case were tried under this law. It is also true that
in many cases, this law was used tactfully. 'Forbearance' is the mantra
to use this law tactfully. Very recently, in the Independent India
Dr Farooq Abdullah, Mr Shiv Shankar, and Mohammed Yunus were given
benefit of doubt in their cases. In the past, most often the judges
resort to forbearance while expressing their disdain. They were fully
conscious of the fact that this law should be sued against an individual
only rarely. After Emergency, contempt notices against 'Indian Express'
and 'The Times of India' were withdrawn on this basis.
Contempt will survive if it is restricted to just limits, excluding
reasonable criticism though unpalatable and defense by truth is allowed.
Also, as Mr Iyer rightly pointed out "refusal of the plea of veracity
is arbitrary in a democracy where the national motto is Satyameva
Jayate". The scope of this contempt power must lie within the Constitutional
prescriptions and criticism within reasonable limits even against
the judicial instrument should be allowed without exception. We would
lag behind if we continue to quote British Indian days.
Before we end this part, let us recap the essence of this law. This
law is primarily designed to balance the freedom of expression with
the judiciary's quest to maintain its authority, public confidence
and deference to the Court, and safeguard public order. This falls
into three general areas- (1) violation of an order of a court, (2)
interference in the judicial process, perjury and misleading the court
with wrong evidences or refusing to give evidences, and (3) criticism
of a judge, his or her judgement, or the institution of the judiciary.
We would continue our discussion on the need for the Contempt of Court
law and also the need to reform it in the coming weeks.
-To be Continued