Limited by law

Contempt and the dispensation of justice

ANIL DIVAN

Over 50 years of the working of the Constitution have brought about a radical change in our democratic institutions. There is a steep fall in the values of public men. Capturing political office is not for public service but for personal gain. In his book Courts and Their Judgments, Arun Shourie says, ‘‘Politicians have become wholly illegitimate, even in their own eyes.’’

One of the most visible changes is a vast accumulation of powers in the higher judiciary. These powers are on occasion quasi-legislative or administrative. Judicial review has immeasurably enlarged the powers of the higher judiciary. The measure is only the judge’s sense of self-restraint.

Such concentration of power in the judiciary is unique and unrivalled in any democratic country governed by the rule of law. But how is this awesome power disciplined? If abused it may pose a threat to the rule of law itself. The review commission headed by former Chief Justice Venkatachaliah states in a consultation paper that of late there is public concern over judges behaving in an unjudge-like manner and such conduct calls for a disciplinary system.

Recently, the Chief Justice of India, as reported in national dailies, stated: ‘‘A good majority of judges in the country are honest but there is a minority which is corrupt and should be identified and dismissed from service... judiciary would not tolerate corruption in its ranks... While in the case of lower courts action against corrupt judges was possible... it was difficult in the case of higher judiciary since impeachment was the only recourse in law.’’

Francis Bacon, Lord Chancellor of England, when accused of bribery, defended himself by saying his ‘‘offences were the offences of the time’’. We are all aware of the vices and offences of our times. Speaking of the English judge, Lord Devlin observed that ‘‘judges are not now, neither have been in the past, much better or much worse than other public servants’’ and ‘‘integrity comes haltingly into public life and without watchfulness may slip away’’.

How does a watchful citizen make a complaint against a dishonest judge? Is he liable for contempt even if the allegations are true? Is there any mechanism by which a credible, responsible complaint can be examined? As the law of contempt stands today, vigorous and robust criticism of a judgment is permitted but attributing bias, motive or corruption to a judge amounts to contempt of court. Truth or justification is no answer to a charge of contempt. The reason given is, if evidence was to be allowed to prove the truth, it would expose the judge to allegations from disappointed litigants and the public. The trial would itself damage the judge and the judiciary.

An example of robust criticism in England is the famous Spycatcher Case. The British government moved the court to stop publication of a book by Peter Wright, a member of the British Secret Service. The Court of Appeal granted an injunction. The House of Lords by a majority upheld and enlarged the ban. The London Times came out with a blistering editorial: ‘‘Yesterday morning the law looked simply to be an ass. Those who regretted this fact were waiting with quiet confidence for the Law Lords to do something about it... But yesterday afternoon the law was still an ass... In the hands of Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order) it had become unpredictable and wild, seemingly responsive only to autocratic whims.’’ The Daily Mirror came out with a front page caption, ‘‘you fools’’, and published photographs of the trio upside down.

American judges have been traditionally very forthright and unsparing of their colleagues. Justice Rehnquist of the US Supreme Court (later chief justice) in one of his dissents described the majority reasoning as ‘‘reminiscent... of escape artists such as Houdini (the conjurer)’’.

All over the world there is a movement towards a more accountable judiciary and a wider scope for criticism of the judiciary. The Commonwealth Law Association has framed the Latimer House guidelines. It visualises a code of judicial ethics. The American Bar Association code of conduct for the judiciary is widely accepted. The Phillimore Committee in England has recommended truth as a defence to contempt if it is for the public benefit.

Unlike the law of contempt, the law of defamation always permitted the defence of justification or truth. But if truth was not established the defendant would be liable. In the US, however, public men on public issues could be criticised. The media or the citizen would not be liable even if the allegations were not true, provided the publisher acted in good faith and not recklessly and relied on responsible sources. The above defence is now available in India in defamation cases as our Supreme Court has adopted the enlarged American defence. This gives great freedom to the media and the public to criticise public officials and politicians.

But what about judges? Barring the impractical and ‘‘failed’’ impeachment process there is no avenue even for legitimate criticism against a dishonest judge. A publication which can be justified cannot be contrary to the motto ‘‘truth alone triumphs’ (Satyameva Jayate) which adorns the Supreme Court. Truth makes a dishonest judge contemptible but ought not to bring the court into contempt.

In a case involving Chief Justice Veeraswamy of the Madras High Court the Supreme Court has directed that no criminal case for corruption should be registered and no sanction to prosecute a High Court or Supreme Court judge be given without the consent of the Chief Justice of India. This judgment enables the Chief Justice to activate investigation by the appropriate authority when he is satisfied prima facie for its need.

To meet the ‘‘felt necessities’’ of the times new court-framed guidelines are essential. Fair comment and justification as applicable to the law of defamation need to be woven into the contempt jurisdiction. Properly structured complaints should be entertained by the apex judiciary without fear of contempt proceedings or defamation. Confidential non-participatory procedures will not command credibility.

Justice Shetty in the Veeraswamy case observed: ‘‘We must never forget that this court is not a court of limited jurisdiction of only dispute settling. Almost from the beginning, this court has been a law-maker. Indeed the court’s role today is much more. It is expanding beyond dispute-settling and interstitial law-making. It is a problem solver in nebulous areas. In this case, we consider it no mere opportunity, it is a duty.’’

The law of contempt is a nebulous area and the problem needs to be urgently addressed. The damage caused by a dishonest judge should not go unrepaired. If a credible mechanism is put in place quickly and firmly, it will greatly disarm the growing perception of an unaccountable judiciary.

The writer is a senior advocate in the Supreme Court of India