‘The law of contempt leaves too much to the predilections of individual judges’

Hay House; Rs 599

Scandalizing the court’ is an aspect of ‘criminal contempt’ (where the accuser is also the judge); it has long since fallen into disuse in most of the civilized countries around the world,but not in India!

The origin of this branch of contempt law known as ‘scandalizing the court’ is shrouded in antiquity. In textbooks it has been described as ‘both dubious and controversial’: dubious,since it originates from a dictum of one judge,Justice J. E. Wilmot,in the John Wilkes case way back in 1765 and controversial since the dictum was recorded in a judgment that was never delivered. It was published by Justice Wilmot’s son after his father died: the judgment had been reserved after argument,and when it was ready to be delivered,it was found that the writ (case) against Wilkes was incorrectly titled; since the procedural law of the time did not permit an amendment to the writ unless consented to by both parties,the entire case had to be abandoned! This then is the ancestry of that part of the law of contempt that goes by the name ‘scandalizing the court’; it is based on a judgment never delivered in court in a case that had already abated!

Strange are the ways of providence; sometimes,stranger are the ways of courts! There are no rules and no precise circumstances as to when it can be said that the administration of justice is brought into ‘contempt’. Judgments of courts are strewn with pious platitudes that give little guidance to newsmen (and newswomen),editors or commentators. This part of the law of contempt — although necessary in extreme cases — constitutes a standing threat to a cherished Fundamental Right: the freedom of expression. It leaves too much to the predilections of the individual judge (or judges). Even the decisions rendered in contempt cases sometimes give the uncanny feeling that the status of the person who ‘scandalizes’ the court may well have influenced the ultimate result. In P. N. Duda vs P. Shiv Shankar (AIR 1988,SC 1208 at 1213),a cabinet minister of the Government of India was exonerated though he had compared the judges of the Supreme Court to ‘anti-social elements,foreign exchange violators,bride burners and a whole horde of reactionaries who have found their haven in the Supreme Court’. The court said that the speech of the minister had to be read ‘in its proper perspective’ and,when so read,it did not bring the administration of justice into disrepute!! But in a later case (also reported) — Mohd. Zahir Khan vs Vijai Singh and Others (AIR 1992,SC 642) —an impetuous (but insignificant) litigant,merely said in a loud voice in court: ‘Either I am anti-national or the judges are anti-national.’ He was immediately cited for contempt,pronounced guilty and sentenced to undergo simple imprisonment for one month!

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In India the higher judiciary has inherent (and almost unbridled) powers of contempt — even beyond laws enacted by Parliament. And for that reason,the media and the whole lot of information-seeking agencies — not sure of how the contempt law will be interpreted — are tight-lipped. No one dares come out with what they believe to be the FACTS (in any matter pertaining to judges or the administration of justice) even though the law (amending the Contempt of Courts Act 1971) now permits ‘justification by truth’ as a valid defence. But let a complaint be made even by a responsible individual against a reputedly corrupt judge in the higher judiciary,and no newspaper will publish it! Give the newspaper as much proof or evidence as you will — it will still not publish anything! Regrettably — with a few notable exceptions — the fraternity of justices in the higher judiciary in India tend to stick together when anyone speaks of any wrongdoing about one of them — alas,even when some of its members themselves entertain a shrewd suspicion of some wrongdoing! There pervades,in the higher echelons of the judiciary,what I would characterize as a spirit of trade unionism. Trade unionism amongst lawyers is different. It is also a closed shop but there are many leaks! One instance of wrongdoing about a colleague at the Bar and a dozen other ‘lawyer-friends’ will spread the word about more such wrongdoings! No,the trade unionism of lawyers is just no match to the trade unionism of judges. The latter close their ranks when one of their own is involved.

In 2003,there were unsubstantiated reports about three sitting judges in one of the high courts in South India being found in some shady joint outside Bangalore city. Their reported shenanigans (or ‘secret activities’) were publicized,but met with instant denials. An independent inquiry into the alleged incident was not immediately ordered by the then chief justice of Karnataka. Instead,contempt proceedings were promptly initiated by the high court against the concerned newspapers that had reported the alleged incident. It was only later — much later — that the chief justice of India set up a high-powered committee consisting of the chief justices of three high courts in the country (Bombay,Madhya Pradesh and Kerala) to look into the incident and report back to him. When this Inquiry Committee of Chief Justices took up its task,contempt notices had been already issued by the Karnataka High Court to representatives of the media (editors,printers and publishers),so that the latter were not quite sure whether,if they revealed to the committee,what they knew,or what they had heard,it may not be also used as evidence against them as contemnors. By that time the so-called ‘scandal’ had been blown out of all proportion —not by fact,but almost entirely by rumour. Everyone — almost everyone — seemed to know (or suspect) what had happened,but no one would tell! The leading national newspapers having been cited (by the High Court of Karnataka) in proceedings for contempt of court,they approached the Supreme Court of India for ultimate redress. I was appointed amicus by the court (to assist it to arrive at a decision),and a wise chief justice of India (V. N. Khare) — wise beyond his years — after hearing what I had to say passed an order staying all contempt proceedings initiated by the High Court of Karnataka. They remain stayed till this day! Meanwhile,the Inquiry Committee of Chief Justices proceeded with a very detailed investigation and its findings were reported to the chief justice of India. Unfortunately,these findings have never been published or publicized. In my view,this was a mistake,because if the finding of the committee was that there was no basis for any of the allegations initially made,the person/persons found responsible for making them should have been dealt with severely; this was the only way to clear the fair name of the higher judiciary in Karnataka. ‘Sunlight is the best disinfectant’,as a former chief justice of India,Justice M. N. Venkatachaliah,always liked to say! But in the absence of a full public disclosure of the report,busybodies assumed the worst,on the facile (and often erroneous) assumption that ‘there can be no smoke without fire’! It was definitely in the larger interests of propriety and justice that the report of the committee should have been promptly made public.

Published with permission from Penguin Books India