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Contempt power

By V. R. Krishna Iyer

BORN OBSCURELY in England, contempt of court has spread to the U.S. and Commonwealth countries. Mr. Ronald L. Goldfarb, in a study, observes that the power of contempt itself ``is, perhaps, nearest akin to despotic power of any power existing under our form of government.'' Some call this totalitarian, others say its absence would lead to anarchy. Yet others have opted for a middle ground. Mr. Justice Black (U.S.) is fiercely opposed to this balancing device, a Constitutional inroad into the First Amendment of Free Speech and is apt to be absolutist. Indian law is a simian version of British precedents. We, unlike the British, have a written Constitution. Still due process or procedure which is ``just, fair and reasonable'' (the Maneka Gandhi case) is thrown to the winds in contempt cases because the prosecutor and the judge are the same, and absence of bias in such cases is often an illusion since judges are human.

American judicial liberalism has encouraged healthy criticism and democratic protest when the highest court provoked popular outrage by unpopular rulings. Strange but true, if Mr. Goldfarb is correct, the U.S. ``Supreme Court has only once exercised the contempt power.''

This power has an English origin of regal middle ages, and is obsolete and obstructive in the modern democratic order. Our judges and legislators are not delegates of royalties of feudal England and ``alleged divinely ordained monarchies,'' a relic of the Star Chamber. The King is the fountain of justice and has delegated it to judges. So contempt of court is a challenge to the King's wisdom. ``This is a most fatal obstruction of justice, and calls for a more immediate redress than any other.'' (Sir John Fox). If such be the genesis of contempt jurisprudence, it is utterly allergic to the Indian Republic which became a democratic reality of ``We, the People of India'', after they demanded the British royalty to quit. The present law of contempt is of a colonial vintage and so our courts, like American courts, must restructure it to suit the ethos of the Constitution and functionally fit the values of free expression and other fundamental rights.

It is necessary to protect the judicial process and institution from scandalisation or contumacious violation. But this must be according to democratic principle, not authoritarian hubris, lest the citizen's basic rights be destroyed by a judge's wrath. Mr. Justice Black in the Braden case wrote about the balancing device between free speech and contempt of court, that the dangers to democracy are best fought in the free market-place of ideas, associations and petitions, and that punishment, directly or indirectly, of these freedoms is the way to national self- destruction. He added: ``There are grim reminders all around this world that the distance between individual liberty and firing squads is not always as far as it seems.''

Hyper-sensitivity and peevishness have no place in the halls of justice while the wages of vicious stultification and vulgar debunking of judges may be punitive gravity.

`Contempt' will still survive if the concept is confined to just limits, excluding reasonable criticism, though unpalatable and defence by truth since refusal of the plea of veracity is arbitrary in a democracy with satyameva jayate as the national motto. To bang and bar and bolt the door of truth is totalitarian and violative of sensitive justice. Contempt law is not ultra vires but its scope, circumscription and salutary parameters must not exceed Constitutional prescriptions out of megalomania or infantile vanity.

I dwelt on the Almon case, along with Mr. Justice P.N. Bhagwati, and repelled the kingly basis of the contempt law while going closer to the people-oriented approach of the U.S. justice system. ``This shift in legal philosophy will broaden the base of the citizen's right to criticise and render the judicial power more socially valid. We are not subjects of a King but citizens of a republic and a blanket ban through the contempt power, stifling criticism of a strategic institution, namely, Administration of Justice, thus forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice, may be a tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic government. The judicial instrument is no exception. To cite vintage rulings of English courts and to bow to decisions of British Indian days as absolutes is to ignore the law of all laws that the rule of law must keep pace with the rule of life.''

In the Mulgaokar case (1978 S.C. 727), I wrote a separate judgment stressing the following principles (quoted from the headnote): ``The fourth functional canon which channels discretionary exercise of the contempt power is that the fourth Estate, which is an indispensable intermediary between the state and the people and necessary instrumentality in strengthening the forces of democracy, should be given free play within responsible limits even when the focus of its critical attention is the court, including the highest court.

``The fifth normative guideline for the judges to observe in this jurisdiction is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation, by dignified bearing, condescending indifference and repudiation by judicial rectitude.''

The least dangerous branch, as the judiciary is often described, may become the most dangerous if for every passing pejorative hint or even strident criticism or truthful aspersion, the judge hides behind contempt law. In that event, Lord Atkin, for his cynical criticism of his colleagues in Anderson's case, President Roosevelt, Prime Minister Nehru, Judge Learned Hand, Judge Jerome Frank, Winston Churchill and surely Karl Marx, Lord Denning himself, the authors of The Brethren, Mr. David Pannick, Queen's Counsel (his book Judges), and myself, plus a few distinguished journalists must now be in prison. No doubt Shakespeare is a ``contemner'', Harold Laski, Prof. Griffith and several other greats mentioned by Mr. Pannick in his marvellous book are culpable, if contempt law were not drastically read down. Even Jesus and Gandhi may be liable.

India has a Constitution with positive values like the right to life, free speech and other fundamentals for the millions in misery and struggling for liberation. The court is one of the protagonists in the transformation process. When it flags or drags or retrogrades, its functional floundering falls for criticism. Judges are not bulletproof against public criticism based on facts.

India should welcome free speech, especially on public issues, macro-projects and policies of deep import to the people. Informed criticism, whether the President, Governors, judges or ministers or generals or technocrats are disparaged or not, uninhibited by any bogey or bully, is not only desirable but must be encouraged. A dark democracy or ignorant citizenry, scared by contempt is a disservice to the republic's progress. ``Know ye the truth and the truth shall make you free.'' Maybe, to suppress truth by contempt threat will embitter people, induce a clash between totalitarian courts and terrorist right to transparency. A developing democracy needs more speech, more communication, even if a judicial process is pending. Enforced silence may not enhance respect for the court. To jettison the freedom of expression in the name of immunising fair judicial hearing is a poor compliment to justices as if they are so soft and feeble as to be swayed in their judgments by passing media winds.

The Indian judicature has every reason (with marginal though slowly escalating, culpables creeping in) to be proud of the quality (not yet quantity) of its performance and so, there is no reason to fear bona fide criticism. Judocracy must not be an imperium but must intrepidly eliminate corrupt, mafiasque elements and vested interests pollutive of the public interest. Then, only then, the least dangerous branch (the judiciary) will rightly be regarded as the most extraordinarily powerful court of law of our land. Democracy, without a great judiciary, is proximate to slavery.

A final thought. Judges also make grave mistakes though the occasions may be few. They are not beyond criticism although such an impression of their being beyond it has been created. Far too long is the truth of this lie been kept away from the public. It is time to tell the people that the independent inestimable judiciary is also part of our great democracy.

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