A matter of judgement

IN a speech in Hyderabad earlier this year, a newspaper reported a sitting Supreme Court judge lamenting the judiciary in India no longer enjoys the people’s trust. He observed that while 80 per cent of judges are honest, their credibility is at stake because of the deeds of a small minority.

One wonders what would have been his fate if, instead of being a judge, he had been a mere journalist! Indian courts tend to be notoriously thin-skinned about criticism and the most common remedy they choose to administer for any implied aspersion on their integrity lies in initiating contempt of court proceedings against the supposed offender. Small wonder that the media is uncharacteristically faint-hearted when focusing on delicate issues like judicial reform, judicial accountability, judicial corruption and increasing judicial delays.

The harsh words by the five-member bench of the Delhi High Court against the Wah India magazine in its judgment this week reflects the court’s strong views on the subject of contempt. The judges were outraged that the magazine could have brashly and in poor taste held a poll among senior lawyers to rate 14 judges on the basis of their various qualities, including integrity. The press is meant to be a watchdog not a bloodhound, the judgment remarked while demanding an unconditional apology. The judges equated the powers of the press to those of nuclear power, ‘‘it can create and destroy and when it is aimed at the judiciary it finds a soft target’’.

The judgments of Indian courts reflect hyper sensitivity to both real and perceived slurs to the institution. In 1972, E.M.S. Namboodiripad, then chief minister of Kerala, was held guilty of contempt for casting aspersions on judges by suggesting that they were prey to the biases of their class and their judgments were weighted against exploited peasants and workers.

As late as 1990, the Bombay High Court, moving against Madhav Gadkari, editor of a leading Marathi newspaper, for contempt, refused to accept the plea of truth as his defence. It argued that it was better to suffer a judge who might be corrupt rather than expose the whole judiciary to a public trial, which would be the case if the truth of the allegation were to be examined.

The question as to whether truth is an acceptable defence in a contempt case is yet to be decided by a full bench of the Supreme Court before whom at least three such contempt petitions are pending. The accused in these cases include such worthies as Arun Shourie and R.K. Hegde. Another intriguing question is whether a trial can be truly fair when the adjudicator is the affected party.

Former Supreme Court justice, V.R. Krishna Iyer, is one of the rare ones from the side of the bench who does not believe that judges should feel threatened every time their actions are questioned. He wrote:‘‘To jettison 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 to be swayed in their judgments by passing media winds.’’

Holding a mirror to the judiciary paves the way for corrective action. Whether it is the case of the disproportionate assets of the former chief justice of Madras, Justice J. Veeraswami, or the corruption charges against the former Supreme Court judge, V. Ramaswami, which led to an abortive attempt to impeach him by Parliament, several issues of judicial malfeasance have come to light simply because of the press.

Nothing better illustrates the peremptory use of contempt laws than the recent case of an Allahabad high court judge who, unable to secure a reserved berth on a train at New Delhi railway station, held up the entire train, constituted an open court on the platform and charged the terrified station master with contempt.

The down-to-earth Americans discerned early that there is an element of cant in the rationale for contempt under the charge of scandalising the court. Justice Black, in his majority judgment of the US Supreme Court in 1941, pointed out that an enforced silence by the media solely in the name of preserving the dignity of the bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect. The US courts decided that contempt can be invoked only in such extraordinary situations when there is ‘‘a clear and present danger’’. Similarly the Canadian courts have ruled that the English common law offence of punishing for contempt by the scandalising of the courts is unconstitutional.

To be fair to the English, though they introduced the laws of contempt back in the 18th century, probably as a self defence mechanism for partisan judges against their vitriolic critics, no one has succeeded in pressing the ‘‘scandalising of the court’’ charge for the last 70 years. Interestingly the inspiration for Wah India’s opinion poll on the judiciary seems to have come from a London publication, Legal Business, which carried a similar opinion poll. Though there is some discussion in England whether this exercise amounted to contempt, proceedings were never instituted. Unfortunately, the courts in many of Britian’s former colonies in Asia and Africa, including India and Pakistan, display no such judicial tolerance. They tend to be scandalised very easily.

Curiously, while contempt cases concerning the scandalising of the courts get top priority and are speedily disposed of, contempt petitions complaining of interference in the implementation of justice do not generally receive the same favoured treatment. For instance, former law minister Shanti Bhushan filed a contempt petition charging that the office bearers of a bar association physically prevented him from entering the court room during a strike two years back, but the matter is still pending. A petition by advocate Kamini Jaiswal complaining that the bar council and the bar association threatened her with disciplinary action because she did not honour their strike call is similarly waiting to be listed.

Some time ago, two high profile activists opposed to the Narmada dam, Medha Patkar and Arundhati Roy, passed sharp remarks against the court. Though there was a move to raise a contempt of court issue, the Supreme Court in its wisdom decided not to pursue the complaint. Justice Bharucha, noting that though they disapproved of the insulting remarks made by Patkar and Roy, believed ‘‘the court’s shoulders are broad enough to shrug off their comments’’.

Similarly, the apex court chose not to take notice of scurrilous allegations against judges in the Kal Chakra magazine. Such instances of judicial maturity by the apex court will hopefully serve as examples for the judiciary at large to demonstrate greater forbearance. For a judge to err on the side of tolerance where his own interests are concerned only enhances his status.

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