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The Indian Express: Top stories: Full story
Tuesday, May 8, 2001

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The Indian Express North American Edition




The case of contempt

The majesty of law cannot be so easily tarnished

Kuldip Nayar

A BRITISH tabloid once published an inverted photograph of two judges of the Appeal Court in England with the caption: “Old fools have done it again.” No contempt action followed. Nor was there any outcry from the bar. One of the two judges, however, said in explanation that they were old was a fact and whether they were fools or not was a matter of opinion.

This incident is in sharp contrast to the excessive sensitivity which the judges in India have developed. They have become too protocol-minded. They want beacon lights on their vehicles. In one state, the demand is for bigger cars. In another, objection was raised after a party why judges had been seated at table No. 5, and not 3.

There are many instances where judges have taken umbrage to even a light-hearted remark. Contempt proceedings have been sometimes initiated to satisfy a judge’s ego. What it all boils down to is self-aggrandisement, a sense of power. This defeats the very purpose of contempt. Obstruction to the administration of justice is certainly contempt but questioning judicial activism is not. Parliament members have often complained from several platforms that the judiciary is occupying the executive’s territory. The principle behind the contempt law is that the judiciary is an institution essential for the maintenance of the rule of law. Any act which undermines the confidence in the judiciary will subvert the rule of law itself.

But, surely, the judges are not expected, much less required, to initiate contempt proceedings every time somebody files a petition saying that the court has been denigrated. It has to ensure that the petition filed is not based on frivolous allegations. Otherwise, it is bound to evoke resentment. More and more social workers and intellectuals who speak against the system or the government’s fiats are being driven to the wall. Their protest against a judgment should not be construed as contempt of court. The courts should act with caution and circumspection. If the “contempt” is not deliberate, only technical, it should be overlooked.

Take the contempt case against Medha Patkar, Arundhati Roy and Prashant Bhushan, the three activists. They have contended in their respective affidavits that words have been put in their mouth. When Medha tells on oath that she did not shout the slogan against the Supreme Court, the basis on which the contempt petition was filed against her, it should be the end of the matter. She is respected for her integrity. Why should proceedings continue after her denial? Take Arundhati. She says there is no case registered against her on the basis of the FIR lodged at a local police station. What’s more, no policeman ever contacted her and there was no attempt to verify the charges. Arundhati, according to the complainants, told the crowd that ‘‘the Supreme Court of India is the thief and all these are the touts. Kill them’’. Is it fair to entertain such petitions which are palpably false?

And what should one make out from the order that all the three ‘‘accused’’ should appear personally in court and to ‘‘continue to attend on all the days thereafter to which the case against you stand and until final orders are passed on the charges against you...’’ The court seems to have given vent to personal anger. It goes beyond the attitude taken against even ordinary criminals. Probably, judges are not required to verify allegations. This is primarily the responsibility of petitioners. But judges have to consider whether the allegations made against people are in tune with their personality or to the general impression about them.
The larger question which needs to be answered is why do courts entertain a petition which, on the face of it, is not true? And what action should the judges take if they find that the petitioner has made false charges and concealed real facts? Democracy implies the rule of law, not of petitioners. The judiciary has not only to administer justice equitably and justly but also to protect individuals from being falsely implicated.

My purpose is not to cast aspersions on judges or courts. People hurt themselves when they hurl stones at the temple of justice. To hurt the court is to hurt society. The denigration of judges can only lead to the diminishing of an institution which provides strength to the democratic system. Judges cannot defend themselves against the abuse hurled at them. ‘‘Contempt’’ is their only shield. But the dignity of law cannot be pulled down by slights which can easily be ignored. The more courts join issue on such things, the more they would involve themselves in spectacles which are bound to be messy.

Take the media. Its freedom means the freedom of the people to know all developments of public importance, including the administration of law and justice. The comments and criticism or the errors of facts and law should not be prevented in the name of contempt. So long as a statement, however strongly worded, is made in good faith, it should not amount to contempt. Disobedience of court orders relating to publication of proceedings may be defiance of its authority. But should the court issue orders which amount to gagging the press?
I believe that the freedom of expression, guaranteed by the Constitution, allows me to tell readers what transpires in courts. Any check is a check on my right to inform. The media is an institution of civil society, while the judiciary is an institution of political society. There is no conflict between the two. In fact, the media is the first estate, not the fourth, since it criticises and comments upon the acts of omission and commission of individuals and institutions belonging to society.

Putting restrictions on the media, however temporary, can be dangerous. They stop it from performing the role of the educator and watchdog. The press has a right to report court proceedings, a right to remain present in the court and take notes. I think there should be a review of the contempt law. The Parliamentary Standing Committee on Home Affairs and Law should do this. It should suggest how to do away with frivolous and motivated petitions. People like Medha, Arundhati and Prashant should never be hauled over the coals again.

The writer is a Rajya Sabha MP

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© 2001: Indian Express Newspapers (Bombay) Ltd. All rights reserved throughout the world.