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Why Contempt of Court ought not be diluted or removed
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Posted on Sat, Jul 29, 2017 at 15:09 IST (last updated: Sat, Jul 29, 2017 @ 15:49 IST)
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The recent standoff between Justice Karnan and the Hon'ble Supreme Court of India which resulted in the conviction of the retired Judge for 6 months simple imprisonment as per the Contempt of Courts Act 1971, has resulted in a debate about the power of the Higher judiciary to punish for contempt and also calls for diluting/removing the provisions relating to criminal contempt altogether (particularly in respect of the offence of "scandalizing the court"). I feel that such a step would not be in the best interests of justice delivery of our country, given the conditions prevailing here. The example of Western nations such as the UK and US that have removed the power of Courts to punish for contempt has been highlighted by many people (including legal luminaries, whom I respectfully disagree with).
For those who are not aware, there are two kinds of contempt of court: Civil and Criminal. This article is purely about the power of the Higher Judiciary to punish for criminal contempt. Civil contempt falls into a different class of offence altogether and is not within the scope of this essay.
Judicial restraint seen as a weakness
In our country, there exists a peculiar attitude among a class of litigants, which view any judicial restraint as a sign of weakness. This includes the political class in particular, but also common litigants, who indulge regularly in litigation. While the assumption is that, the majority of our people respect and adhere to the law, and in particular respect the courts and the judiciary, the truth is that the law needs some teeth to punish offenders who frequently, systematically and deliberately indulge in intimidating the legal system by publishing scandalous statements about judges and unfounded and unwarranted accusations against the judiciary.
There is an attitude among lay people that any public official who maintains a dignified silence or doesn't respond or take action when faced with serious or repeated accusations is weak, or worse, guilty. A situation where members of the public, particularly the political class, feel free to accuse and indimidate the judiciary with such persistent accusations/complaints would invariably result in a slow but steady erosion of public trust in the system and loss of respect/prestige for the judiciary as a whole. Further the individual judges involved would feel immense pressure which affects their ability and independence to delivery justice effectively. While judicial corruption is a fact and remains a serious issue, what we need is an effective redressal mechanism and a way to punish corrupt judges after a thorough and independent inquiry procedure. But to hold that the power of contempt is prone to gross abuse cannot be a reason to do away with the power or to dilute it to such an extent that anybody feels free to scandalize the judiciary to any extent and get away with it. If the yardstick is "abuse" or "misuse" then several constitutionally valid Acts have to be repealed on that score alone.
Fair criticism and truth is already protected
Nothing in the present Contempt of Courts Act prevents fair criticism of any judicial decision. In fact, Section 5 specifically protects fair criticism. Further, Section 6 protects individuals who make complaints in good faith against subordinate judicial officers to any other subordinate court or to the High Court to which it subordinate to. The Hon'ble Supreme Court has also reaffirmed in many decisions that the power of contempt has to be wielded very cautiously and even qualified apologies, when genuine, has to be accepted to condone contemptous conduct.
Further, even when a person is found guilty of contempt, punishment may be imposed only in cases where it is found that the contempt is of such nature so as to substantially interferes or tends to substantially interfere with the due course of justice, as per Section 13(a). Further truth is always available as a defence in contempt proceedings to the contemner where the contemner is able to satisfy the court on the bona fides of such a defence. When every opportunity to apologize is also given at the beginning of contempt proceedings and also in the alternative, to defend, the contemner cannot feel aggrieved for being found guilty.
Justice cannot be allowed to be subverted
Justice Karnan's conduct has shown how justice can be subverted by people with authority or power by intimidating, threatening, accusing and publishing scandalous statements about judicial officers. Though he was a sitting judge of the Madras High Court and later at Kolkata, his conduct throughout his judicial career was such as to lower the authority and dignity of the courts through repeated pointed allegations levelled at his colleagues of corruption, caste discrimination, falsification of educational qualifications and even sexual misconduct. Even the media's enthusiastic coverage of the episode showed how the public enjoyed the undignified spectacle of a high consitutional authority like a High Court judge sentencing Supreme Court judges to imprisonment and passing orders in blatant disregard of judicial discipline and violation of all legal principles and norms.
Any inaction by the Hon'ble Supreme Court would have led to a serious erosion of public confidence in the judicial system to punish such conduct. The only option before the Supreme Court, in the face of such stubborn and persistent attempts by the contemner to frustrate attempts to disclipine him, was to punish for criminal contempt. In any event, the Supreme Court was bound to be criticized for it, but it may be noted that the Supreme Court has not instituted any proceedings against anybody for such criticism.
I further feel that this episode shows that the offence of "scandalizing" the court cannot be seen as a distinct offence from that of "substantially interfering or tending to substantially interfere" with the due course of law. Maybe one or two occasional scandalous statements can be forgiven, but a continuous and systematic campaign to defame and scandalize other members of the higher judiciary could not be seen in isolation. An accusation of grave and serious nature, repeated several times and given wide circulation would have such an effect. The net effect of such conduct, left unpunished, would be to give credence to such accusations and lower the authority and dignity of the courts.
In an era where the Executive Branch of Government already blatantly defies Court orders with impunity and senior bureaucrats defy summons and only turn up at Court when threatened with arrest warrant, where Government law officers use every means in the book to delay and frustrate proceedings against the State, open defiance of the legal system would only become more common as a result even among common litigants in a country where a healthy and wholesome respect for the justice delivery system is not yet the norm among large sections of society and fear of punishment (however remote) is still a major factor in ensuring law-abiding behaviour. To be fair, other reasons can be attributed to such erosion of public confidence, but allowing grossly contemptous conduct to go unpunished will only accelerate such erosion.
The Hon'ble Supreme Court had gagged the media from publishing further contemptous statements of Justice Karnan after his conviction. This was only a limited order to the extent of giving a closure to the episode and prevent further attempts by the Judge to scandalize and throw more dirt at brother Judges. In the detailed order of conviction, the Hon'ble Supreme Court has explained the reason for such prohibition and also specifically clarified that such prohibition would not limit public debate on the issue.
To be fair, though the media, in this instance, could not be faulted for highlighting Justice Karnan's statements, it only goes to shows the dangers of TRP-driven content. In an era when the media wields enormous clout and the ability to shape public opinion, the judiciary would be left practically defenceless in the face of a relentless media onslaught against its integrity.
Concerns about stifling criticism or attempts to call out corruption in the system
To me, the need for a judicial accountability authority nationwide is independent of the issue of contempt power. In fact, I would propose a legislation that would enable a separate, independent judicial accountability commission be permanently set up at the Central, State and District levels to probe into the following, among other misconduct by judges, both in the Higher and subordinate judiciary namely:
Gross abuse of authority/position to gain undue favours for self or others
Bribery and corruption
Gross misconduct such as not sitting in Court regularly, verbally abusing advocates/lawyers/litigants in filthy language, making repeatedly false and unsubstantiated accusations against other judicial officers with a view to intimidate or subvert justice, grossly and blatantly exhibiting favouritism to specific lawyers/litigants, refusing to pass orders or inordinately delaying passing of orders, and other blatantly disruptive behaviour breaching judicial discipline.
Any other conduct which is a violation of the judicial oath of acting "without fear or favour, affection or ill-will".
Such a law should also provide for differing levels of punishments for offences based on the seriousness of the breach/offence and also the rank of the judicial officer in question. A Judicial Accountability law would only serve to restore public confidence. But the need for such a system cannot be mixed up with the issue of contempt of court.
Time not yet ripe for contempt powers to be buried
In conclusion, I feel that the time is not yet ripe in our country to bury the power of criminal contempt, especially given the prevailing attitude of lay people towards the system. Though the judiciary has a role to improve the public confidence and faith in the system, the public also needs a change of attitude towards the judiciary so as to make it tenable for an effective dissolution of contempt powers in line with Western principles of jurisprudence. A system to punish errant judges at all levels of the judiciary would also effectively address the issue of increasing public confidence and trust. Removing the power of contempt without addressing the above systemic problems and bringing about a change in public attitude towards the law would only open a pandora's box.
In this series
- Why Contempt of Court ought not be diluted or removed
- In favour of retaining criminal defamation laws
- Supreme Court upholds freedom of speech
- The slippery slope of "Justice"
- The concept of preliminary objections in Law
- The Art of being in Two Places at once
- Interpreting Law and its pitfalls
- Drafting legal pleadings - an overview
- The art of drafting contracts
- Two methods of learning in the legal profession
- பாரம்பரிய அறிவும், அறிவுசார் சொத்துரிமைச் சட்டமும்
- வீண் பேச்சால் விபரீதம்
- Law and paperwork go together like bread and butter
- ஒரு வழக்கை நடத்துவதற்கு ஏன் வழக்கறிஞர் தேவை?
- The 3 Ds of the legal profession
- Is occasional swift justice a failure of law?
- Contempt of Court - an overview
- Chemical pollution caused by industries: why they invite heavy sanctions
- Business law - the most boring aspect of law
- Legal ethics: how can a lawyer defend the guilty?
- Criminal jurisprudence and the presumption of innocence
- Is tolerance a legal virtue?
- Road accident cases - how to deal with emergencies
- Blogging in anger and its legal implications
- Common wrong assumptions by amateur internet "lawyers"
- On Legal Opinions
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