Update on law of contempt

THE LAW OF CONTEMPT: Samaraditya Pal; Law Research Institute, Alkapuri, 52/2, Ballygunge, Circular Road, Calcutta-700019. Rs. 550.

IN RECENT times the population of contempt cases has been exponential and exaggerated so much that contempt proceedings glut the dockets of higher courts. There is something pathological in this phenomenal escalation. Either the judges are becoming hypersensitive in robed vanity venality and venom or the populace is losing the grace, reverence and credence they owe to that functionally finest institution in the republic, the judiciary.

Forgive my odd beginning of the review of a book on the Law of Contempt. "Sathyameva Jayate" (May Truth be victorious) is the sublime national motto and every political policy or judicial philosophy to the contrary is bete noire. Why? Because all law and justice must submit to the hermeneutic harmony of Truth and Justice as Bharat's lodestar. If Truth be no defence to contempt charge because the "robed brother" is the dubious delinquent, corrupt judges can escape from exposition of misconduct. Usually, the jural obscurantism that the plea of Truth can be repelled from investigation by the theory fabricated by judges in their own self-interest that proof of violation of probity, guilty for the rest of the world, is impermissible in contempt cases, is controversial. Is independence of judicial office consistent with bribery, sex abuse, pernicious influences and vices intolerable in a President and Prime Minister? The law is an ass if that be the jejune contempt jurisprudence.

Many authors fear to tread the "Truth" path of Contempt Law but the author of the book under review has faced the issue and, with a slant against the traditional view that truth of imputations is no defence, has cited extensively from the earliest ruling of the Supreme Court in Ramkrishna Reddy's case and the redoubtable jurist Seervai's eloquent Constitutional Law. The latter has observed: "This raises the question whether Truth is a defence to an alleged contempt of Court if a person, or the Press allege and publish proofs of the misbehaviour of a judge. The judgements of the Supreme Court are not in a tidy state. But a careful analysis of our Supreme Court judgements, and judgements of English and Australian Courts, shows that Truth is, and must be a complete defence to allegations of bribery, corruption, bias and other misbehaviour of a Judge. To hold otherwise would be to nullify the provisions of Articles 124(4) and (5) in a practical sense, for few people would expose themselves to being committed for contempt in order to bring a corrupt judge to book. Secondly, so to hold is to put the judges above the Constitution which expressly provides for the removal of a judge for proved misbehaviour."

However, Truth is currently a casualty as a defence against contempt charge, which is a pity. The law is, alas, what the judges say it is. The large number of honest judges would wish the black sheep to be exposed.

One judge of the Bombay High Court, finding a lady in court who had sought to influence him over the telephone and told him that the other judge on the Division Bench had already agreed to her suggestion, protested, got up from the Bench and histrionically sat in dharna against the Bench hearing the case.

The alleged sinner who was the senior Bencher, very capable and courageous otherwise, perhaps with a little weakness, resigned later. Judicial deviances can be controlled, not by banning Truth but by providing for in camera investigation by a high level body.

While I am gravely mindful of the potential for blackmail of judges by unscrupulous and corrupt litigants and blackguardly busybodies professionally flourishing on intimidatory use of mudslinging, this, by itself, cannot be just, fair and sufficient as reasonable restraint to black out all serious charges as scurrilous. Truth about the court is in public interest. Let me quote David Pannick and Judge Jerome Frank in support: "Some politicians, and a few jurists, urge that it is unwise or even dangerous to tell the truth about the judiciary. Judge Jerome Frank of the U.S. Court of Appeals sensibly explained that he had little patience with, or respect for, that suggestion. I am unable to conceive... that, in a democracy, it can ever be unwise to acquaint the public with the truth about the workings of any branch of government. It is wholly undemocratic to treat the public as children who are unable to accept the inescapable shortcomings of man-made institutions... The best way to bring about the elimination of those shortcomings of our judicial system, which are capable of being eliminated, is to have all our citizens informed as to how that system now functions. It is a mistake, therefore, to try to establish and maintain, through ignorance, public esteem for our Courts."

"English judges have every reason to be proud of the quality of their performance and no reason to fear more extensive public knowledge and assessment of their work. Nevertheless, there are aspects of judicial administration — appointment, training, discipline, criticism, mysticism, and publicity — which hinder, or detract from, their ability to serve society. We need judges who are not appointed by the unassisted efforts of the Lord Chancellor and solely from the ranks of middle-aged barristers. We need judges who are trained for the job, whose conduct can be freely criticised and is subject to investigation by a Judicial Performance Commission; judges who abandon wigs, gowns, and unnecessary linguistic legalisms; judges who welcome rather than shun publicity for their activities."

What is a judicious blend is to subject prima facie unbecoming misbehaviour to a confidential process of top-level inquiry. Since the highest is not above the law and the lowest not beneath the law, a judicial deviancy commission may be a happy halfway methodology. To suppress altogether is wrong. To say open sesame to all vicious lies is horrendous. Yet read the great Frankfurter as convincing argument: "To say that the framers of the Constitution sanctified veiled violence through coercive speech directed against those charged with adjudication is not merely to make violence an ingredient of justice; it mocks the very ideal of justice by respecting its forms while stultifying its uncontaminated exercise."

The pathological unveracious imputations on the judiciary shall never go unpunished. Nor shall delinquent judges, under a contempt cover-up, gain immunity and escape transparency and accountability. The glory of the judiciary is our national necessity.

The book is an excellent work and is all the more useful since an expanded treatment is included relating to contempt of tribunals and legislatures. The menace to free speech, a fundamental right, springs from the exaggerated, inventive and invasively vain legislators making hell inside the House and taking action against others on fancied charges. The prosecutor and judges are the same. The shame of it is our legislators' de facto colonial dependence on the House of Commons privileges of long ago, 54 years after Independence. Our parliamentarians are diligent in lucrative escalation of their own emoluments and deafening stridency in the well of the House, avoiding reasoned debate. If this competitive loudness is not contempt of the House, it is contempt of the Constitution, oath-bound though the members are.

The book is exhaustive and excellent and does justice to the title. The statutory law, the constitutional provisions and the case law in profusion need a well-marshalled presentation, which is concise, clear and has a bibliolovely get-up.

On a former occasion I have had the opportunity to go through this erudite work. Now I have glanced over again through the pages and I am more impressed that the author has dealt with the delicate, difficult subject with luculent, lucubrious success. The Contempt of Courts Act 1971 is dealt with fairly well, even as the Constitutional provisions bearing on Contempt of Court and of legislatures has received just consideration. The titles deal extensively with the sub-topics, including the power of the Supreme Court and High Court to make rules. The appendices give us the rules framed. Similarly, the Sanyal Commission report (necessary portion) has been given in the appendix. The discussion, as we go through the pages, refers also to the Commonwealth rulings and the Phillimore Committee Report. A brief quote from the Report is relevant: "The Phillimore Committee had recommended that Truth should not be an absolute defence because the very presentation of such a defence might provide a platform for the repetition of the original assertions or allegations; it might provide a cover under which to rake up some damaging episode in a judge's past life. But the Committee was of the view that if an addition to proving the truth of the allegations the contemner could also show that the publication was for the public benefit, he should be entitled to an acquittal."

The American Supreme Court has taken a far more liberal view because of its high priority for "free speech" under the American Constitution. There is no doubt that the Commission for Review of the Constitution, now engaged in enlargement of fundamental rights and other provisions, will give serious consideration to contempt power because it impinges on Articles 14, 19 and 21 plus.

My view, while on the bench, has been conditioned by a happy reconciliation between two values; the reverence that one owes to the dignity of the judicature and the latitude one shows to the dialectic of free expression.

V. R. KRISHNA IYER

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