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The law of contempt

By Rajeev Dhavan

THE SUPREME Court referred to its power to punish for contempt as a ``vague and wandering jurisdiction with uncertain frontiers... which makes it a crime to punish regardless of truth and public good... (and) whose discharge demands tolerance and detachment of a high order''. An English writer, reacting to a judgment of 1900, spoke of the contempt power over the press as being ``almost as stern and far-reaching in its peculiar domain as that of the Star Chamber''. India legislated on five occasions this century, after due examination by at least two powerful committees. When the moment for reform came, the Law Minister, H. R. Gokhale, told the Rajya Sabha that interference with this judicial power was Constitutionally impermissible. A frustrated parliamentary Opposition faced with doubtful advice and Congress majority suffered this embargo in muted consternation.

Virtually all newspapers in India and many political leaders (including Nehru and Indira Gandhi) have been at the receiving end of the contempt power. In the celebrated case, In re Mohandas Karamchand Gandhi (1920), Gandhiji offered to go to jail rather than compromise his conscientiously held views on pending and other matters. He was let off with a warning and a legal remonstrance that he was wrong.

The modern law of contempt evolved as an antidote to activist politics and political journalism. The power to summarily punish for contempt was concretised in Justice Wilmot's judgment in the Almon case (1765) which arose out of the John Wilkes controversy and which was published by his son in 1802. Amid some murmurs from Ireland that those charged with contempt should have a proper trial, after this, the common law and its colonial and imperial transplants never looked back. Imperial justice left something to be desired as Justice Dwarkanath Mitter powerfully dissented in the Bengalee case saying that while an Englishman, William Taylor, had been let off for criticising him in 1868, the legendary Surendranath Banerjee was punished despite his apology.

Many of the cases that followed - including over Lokmanya Tilak's trial (1908) and the Young India case involving Gandhiji (1920) - tell the story of India's freedom movement. But, if the power of contempt was severe, it was also used tactically. In 1943, the Privy Council, reversing an Allahabad decision against The Hindustan Times preached forbearance. A similar forbearance was shown by the Delhi High Court in dealing with comments over the Congress party case (1971) and the Supersession of judges case (1974).

Cases against Prime Minister Nehru were not proceeded with because he could not have known about the pending case. In 1970, the hapless E. M. S. Namboodiripad was given a long lecture on how he had misunderstood his Marxism as a reason for a reduction of his punishment to a fine of one rupee! By all counts, this was a unique way of working out a sentencing tariff. Years later, politicians like Dr. Farooq Abdullah, Mr. P. Shiv Shanker and Mohammed Yunus got the benefit of the doubt in the facts and circumstances of their cases. Judges have rarely used the full totality of their contempt often forbearing whilst expressing their disdain. Forbearance is accompanied by a statesman-like wisdom which prompts judges not to invite further controversy. That is why after the Emergency, contempt notices against the editors of the Indian Express and The Times of India were withdrawn.

It has never been anyone's case that judges should be indiscriminately criticised. Those who do this should remember Lord Denning's kindly retort Quantim Hogg (later Lord Hailsham) in the Punch case (1968) that it should be borne in mind that judges cannot answer back. But, by and large, although the contempt power is a swift method by which the judges can defend themselves and the due administration of justices, a great deal remains in the hands of the judges who are free to balance the plea of fair criticism against the extent of substantial interference with justice in such manner as they please according to the case - without giving the accused a regular trial and without permitting truth to be a defence.

It is against this background that the myth of the ``gagging writ seems to have developed whereby - despite judicial protestations - it is popularly believed that as soon as a matter becomes sub judice (pending), all comments on the issues must stop. Such a view is as inaccurate as it is intrinsically wrong. The various democratic equities were dramatically brought out in the Thalidomide case (1972) by Lord Reid who brilliantly used the classic Shakespearean case of Shylock vs. Antonio in the ``Merchant of Venice'' to illustrate the competing importance of free speech and people's concern. Lord Reid felt that amid discussion, the press could not prejudge the issue. But, the Thalidomide case raised a more fundamental issue whether the court could injunct The Sunday Times from publishing a pre- judgmental article or discussing a pending case. In this, the House of Lords was proved wrong when the European Court of Justice placed a premium on free speech to reverse the view that courts could injunct democratic discussion on a pending matter.

This takes us to the still wider issue: should courts pass orders to injunct litigants, the media or activists from participating in a public discussion on cases before the courts? More controversially, should courts place litigants in the uncomfortable position where they feel that unless they give up their free speech the courts will refuse to hear their case? Hearing cases in all material particulars is as much a judicial duty as free speech and responsible discussion on public issues (even if they are sub judice) is part of the democratic rights of citizens.

That disobeying injunctive orders of the court (even if they are in excess of jurisdiction or, perhaps, misplaced) amounts to civil contempt is unexceptional. That was made clear by the Supreme Court in a decision of 1997. But this cannot silence public discussion on the orders themselves. Anxious that the judicial arm of the state be subjected to public discussion, one Supreme Court judge epitomised the view that judges and judicial decisions could be critiqued ``fairly but fiercely.''

There are three branches of the law which include (i) contempt in the face of court; (ii) prejudicing, or interfering or tending to interfere with the due course of any judicial proceeding and (iii) the broad duty not to interfere with the due administration of justice including not ``scandalising the judiciary.'' The power is as broad as the judges want to make it. Punishment follows a summary procedure, not a regular trial. Truth is not a defence. Those who criticise judges and the judicial process should not be defamatory and irresponsibly allege bias or corruption on the part of judges (although responsible allegations may be necessary in the public interest).

Judges cannot file defamation proceedings. They cannot answer back. But the custodians of the power of contempt might be tempted to recall Lord Atkin's thoughtful and incisive advice that whilst improper motives should not be made and comments should not be couched in malice ``... the path of criticism is a public way; the wrong-headed are permitted to err therein. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny of and respectful even though outspoken comments of ordinary men.''

An archaic jurisdiction must adapt to thoughtful use in a democratic society. American courts have virtually given up the views of the contempt power to silence comment on the judiciary unless there is a clear and present danger to justice. Something is to be learnt from this.

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