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Contempt of Court - An Archaic and Irrelevant Law in a Democracy? - Part: 1

page 2


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


 

Naangal Vimarsanam   2001 www.nilacharal.com. All rights reserved.