Judges in their own cause - II

By Prashant Bhushan

IN ITS order directing issue of the second contempt notice to Arundhati Roy for her affidavit, the Supreme Court has said that she has ``imputed motives to specific courts for entertaining litigation or passing orders against her''. The Court holds that imputing motives to specific courts or judges or orders is contempt. But it is a social and psychological reality that all actions of all persons are actuated by some motive. And it would be facile to believe that judges are a special species of mankind who are only motivated by a desire to declare the law as it is. That is why judges differ on their interpretation of law. Some are motivated by a desire to mould the law to expand the rights of the downtrodden, while other may be motivated by a desire to maintain the status quo. Some may even be motivated by a desire to protect what they perceive to be their class interest. And such motives may not always even be conscious to the judges. But to say that judges only act with a motive to declare and enforce the law as it is, is a fairy tale. And nowadays we do not believe in fairy tales.

Moreover, there may be serious and honest difference of opinion between perfectly reasonable persons as to whether a particular motive is laudable or not. There are several cases pending in the Supreme Court where the decision would determine whether India remains in the WTO or not. Such cases would almost inevitably be decided on the personal views and motivations of the judges on this issue. There would be honest difference of opinion on whether such motive one way or the other is laudable or not. But is it impermissible for civil society to discuss such motivations of the Court or its judges? If it is made so by the exercise of the power of contempt, it would stultify all meaningful public discussion and debate on the functioning of one of the most important institutions of the state. Such a state of affairs would discourage any improvement or change in the institution and would be disastrous for democracy. No democratic civil society can afford such a state of affairs for long, even if the Judiciary tries to enforce it by using its powers of contempt.

Is it not possible that a court - even the Supreme Court - can abuse its powers of contempt and use them against persons who criticise it or its actions? Ironically, the very issue of the second contempt notice to Roy itself validates her criticism of the Court in her affidavit. In fact, the Court tacitly accepts the validity of her criticism by itself saying that ``almost every one of the rules framed by this Court have been violated'', by the petition. What does a citizen make of the fact that the Court does not proceed against the petitioners who misled it by filing a false and concocted petition and who get up in Court and say without justification that they have lost confidence in it and that the case should be transferred to another Court.

There were two main reasons to confer the power on the courts to punish citizens for contempt. First, that the courts should be armed with the power to enforce their orders. Second, they should be able to punish obstruction to the administration of justice, such as obstruction of and threats to judges, jurors, litigants, lawyers, and witnesses. However, gradually, over a hundred years ago, the courts in Britain, where the law of Contempt was evolved by the judges themselves, expanded their own powers to punish people for acts of what they called ``scandalizing the court''. This was interpreted to include any act, which tended to impair the dignity of the court and the judges. This was done on the basis that any act that would injure public confidence in the courts would impair the administration of justice. Any imputation of dishonesty to judges or their judgments then came to be regarded by the courts as contempt. They even went so far as to hold that even the truth of the imputation could not be pleaded in defence.

Thus if one called a judge dishonest or a bribe-taker and had evidence to prove it, the courts would not allow it on the ground that such an imputation even if true would impair public confidence in the administration of justice! Thus the courts came to regard it their legal duty to punish and deter any attempt by a citizen to expose the rot in the judicial system. Self-interest then came to be sanctified as a sacred legal duty by the judicial expansion of the power of contempt. The Indian courts, which inherited the British or Anglo Saxon Jurisprudence, adopted the same principles.

The Contempt of Courts Act of 1971 merely gave legislative sanction to and codified the law of contempt which had already been evolved by the Courts. Thus contempt came to be defined as: ```Civil contempt' means willful disobedience of any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court; `Criminal Contempt', means the publication of any matter or the doing of any other act whatsoever which - Scandalizes or tends to scandalize or tends to lower the authority of, any court, or Prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding, or Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.''

It is the clause of ``scandalizing the court'' which has been used to punish those who impugn the motives or the integrity of the courts or judges. It is one jurisdiction where the issue before the court is between the court and the citizen. And where the court sits in judgment over its own cause. Clearly, the power is inherently highly prone to being abused. It would be difficult for anyone to say that it has not been misused.

In recent years, the law of contempt has been liberalised in both the U.K. and the U.S. In the U.K., the statute has been amended on the recommendation of the Phillimore Committee to provide for truth as a defence to a charge of contempt by scandalising. In the U.S., the courts have evolved a more liberal standard of ``clear and present danger'' to the administration of justice. Thus recently the New York Times characterised the judgment of the U.S. Supreme Court on the recounting of Florida votes in the recent Presidential elections as ``corrupt'' and one, which ``stole the election''. But no action was initiated for contempt because there was no clear and present danger to the administration of justice.

For a long time now, the power of the courts to punish for contempt in India have deterred free and frank debate and comment on the state of the judicial system. But can it be said that it has really preserved public confidence in the courts? Every citizen who has had the slightest brush with the courts knows of the near complete collapse of the system. The threat of contempt however deters most people from saying so openly. However, every time that the court punishes anyone for ``scandalizing the court'', that act does not enhance the dignity or the reputation of the court. In fact, almost always, it has the opposite effect of making people believe that the court has much to hide. Respect and dignity have to be earned by ones behaviour and actions. They cannot be enforced by threats of punishment.

Moreover, if such a power were necessary to preserve public confidence in the Judiciary, then the same argument would hold good for preserving confidence in the Government, its bureaucracy and its police. After all, they too perform public functions, and it is equally important for their efficacy that public confidence in them should also be preserved. But then, it was realised that all such institutions can err and can also be corrupted. That the best check against their degeneration was their accountability to the people for which it was essential that people should have the right to freely criticise them. And on the whole the public respect for such institutions would depend on their behaviour and performance.

Is it really necessary to enforce respect for the Judiciary without scrutiny of its performance? Is there something particularly holy about courts and judges that even a citizen who has proof of the fact and is prepared to face action for civil and criminal defamation cannot accuse them of dishonesty? Why is defamation (which is actionable in both civil and criminal proceedings) not a sufficient safeguard to protect the reputations of judges and courts, if that is considered sufficient for all other classes or citizens? These are uncomfortable questions, but they need to be answered. They need to be urgently addressed by the Judiciary itself, the Government and above all by the citizens. For upon the answer to these questions, depends the future health of our judicial system and indeed of our Republic itself.

(Concluded)

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