Failure to amend Contempt Act -- a missed opportunity
By Rakesh Bhatnagar
NEW DELHI: The Atal Behari Vajpayee government has missed an opportunity to make the justice administration system transparent by deciding not to amend the existing Contempt of Courts Act enacted in 1971.
Attorney general for India Soli J Sorabjee had suggested to the government to amend the law to provide truth as defence to a person who is facing action under the Contempt of Courts Act. Union law minister Ram Jethmalani, however, told Parliament that the government had decided not to amend the Act ``for the present''.
Sorabjee had suggested that defence of truth should also be made available in a contempt action as in the case of a libel action. He, however, stressed that if the allegations made against the judiciary were found to be baseless or frivolous, stiff penalties including fine and imprisonment may be imposed upon the person who made such allegations.
Since truth is not a defence for an alleged contemner, legal experts including some former judges, have felt that the Contempt of Courts Act was more a protection for a section of the judiciary which may have been involved in certain actions unbecoming of a judge.
Jethmalani has identified rampant corruption and incompetence among the police and a section of judiciary as some of the causes of corrosion in the justice administration system. ``There is an urgent need to stem the rot'', he has asserted There is no need to change the existing system but what's needed is its overhauling as the ``fatal combination of incompetence and corruption among police, prosecutors, witnesses and judges frustrates justice''.
Supreme Court Chief Justice A S Anand has also sought restoration of people's faith in the justice administration system, which appears to be at ``cross roads''.
Arguments have been made for and against the efficacy of the Contempt of Courts of Act. It is often argued that the Act is a shield for a section of the judiciary which may be ``corrupt''. Then should it be amended so that the omissions and commissions of a section of the judiciary would be questioned in public? Even this has inherent dangers. Such an amendment with the sole purpose of making the entire judiciary vulnerable to public criticism may do enormous disservice than serve the larger purpose of making its actions transparent.
Some time ago, the Supreme Court had recommended ``in-house'' procedure to deal with the allegations of misconduct or corruption against the judiciary. The procedure is cumbersome besides involving the entire Bar for taking up action against a member of the judiciary.
Soon after Prime Minister Atal Behari Vajpayee indicated in November that the government would evolve a code of conduct for the judiciary, the Supreme Court and high court judges adopted what they described as the ``restatement of values '' incorporating 15 point charter to guide the judges in their behaviour and conduct.
The charter itself deals with all the possible eventualities which may have the potential of bringing disrepute to the judiciary because of its actions or inactions. In addition, it also aims at strengthening the judicial character .
Be that as it may, Justice Anand is not wrong when he says that latent danger to the judiciary lies from within . The dignity and majesty of judiciary can only be upheld by itself. Its movement in those areas which is the domain of other wings of the state, its judgments which may be impossible to implement, and its practice of delivering justice but with enormous delay may cost a lot to the honourable existence of the judiciary.