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Criticism of the court — I
By V.R. Krishna Iyer
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The basic postulate of accountability applicable to our Republic's instrumentalities does not pass the judges by.
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OVER TWO score and two years ago, I participated in a national conference of Law Ministers in New Delhi, representing the State of Kerala. At the concluding session, I moved the Chair (G.B. Pant, then Home Minister) to pass a resolution to Indianise the "dress and forms of address" of Indian judges, jettisoning the black jacket, bands and robes, and addressing the court without "my-lording" them. G.B. Pant adroitly avoided the issue as the matter was not on the agenda. Why did I raise the point at all? The exotic, clumsy costume created an esoteric alienation of the Judiciary from the sartorial democracy of social justice. "The apparel oft proclaims the man", and I did not feel it indigenously appropriate that "judge and co." be insulated as an uppish societal category when equal justice to the humblest is the `logos' of this noble profession. And the British legacy of `lordly' justice is unbecoming of the culture of our Republic. It goes to the head of the robed brethren, huff, hubris and hauteur being the infirmity of fallible holders of unaccountable power. If humility and compassion are the basic values of those who grace the Bench, these Indian "law lords" lose these finer forensic fundamentals and become victims of the "cult of the robe", to borrow Judge Jerome Frank's apt diction.
No democracy is stable unless the court becomes an integral part of the people's process. Judicial democracy is not a contradiction of ideals unless authoritarianism becomes a judicial paradigm. The court is for the people and therefore its credentials are based on dispensation of justice to the national constituency without fear or favour and with utter impartiality. When a judge is guilty of deviance from this sound ethos, corrective engineering must operate so that curial functionalism is beyond ill-health. Therefore, just public criticism is a constitutional process implicit in our Republic's institutional therapeutics. There's the rub. An ancient doctrine, strangely originating in an undelivered judgment of Wilmot C.J., posthumously published by his son, is the nidus of British `Contempt of Court Law'. The Wilmot doctrine has royal blood in its heart. The regal moorings of Rose V Almon are allergy to the Rule of Law of our Republic. The King is the source of English justice. To criticise justice administration is castigation of the regal function and ipso jure reprehensible and punishable as contempt of the royal court. Free speech meets its Waterloo where the King's justice dispensation, through the King's judges, is censured.
These royal roots of contempt jurisprudence are ideologically incongruous when the British Raj has quit with its baggage of imperial justice and We, the People, have established swaraj and are governed by a Democratic Republic. It is outrageous to enforce an unwritten imperial jural theory on a people who are free from the Crown and owe no allegiance to Westminster. True, Indian justice has, as a system, been shaped in its adversarial and pyramidal pattern by the English practice. But the Republic has its people-oriented principles of judicial, parliamentary and administrative governance. Privy Council rulings are not authority in India. We owe no colonial subjugation to the Raj regime and its "sceptre and crown" Law Brittania. Our great Constitution rejects regalism and every rule of law in India has to be tested on hard democratic reality. The court is an instrument under the Constitution, not over it. Once these diamond-hard basics are borne in mind, our contempt jurisprudence will not be simian assimilation of Victorian vintage obsolescence but Indian justice with popular vibrance. So it follows that the semantic essence of contempt law must suffer the limitations and adjust to the parameters of our Constitutional order and basic structure. The regal recklessness of judicial insulation from public criticism — an etiologic eccentricity — is anathema in India. The basic postulate of accountability applicable to our Republic's instrumentalities does not pass the judges by. Dereliction of duty, culpable delinquency and noxious negligent conduct of judicial echelons fall within the censorious jurisdiction of public scrutiny through free speech which is the oxygen of democracy. So much so, criticism, uninhibited and outspoken but veracious and judicious, is not contretemps nor bete noire to `contempt' jurisprudence.
Our jurisprudence has a swadeshi flavour of democratic vitality free from colonial limpet legacy. This must assert itself in values spelt out tersely in the Preamble and Parts III and IV. The Indian court is no authoritarian Star Chamber but a democratic instrumentality cognisant of legitimate limitations. A confusion on fundamentals generates midget jurisprudence. Under the Indian jural Sun, Contempt Law is no Proteus of the Legal World assuming arbitrary variety of authority. Contempt power is functional, not personal. The quintessence of the contempt law is protection of the public against interference with public justice, not — repeat, not — drawing an iron curtain with intimidatory missiles to silence people's freedom of expression, a foremost human right. The great American judge Douglas wrote: "The law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate." (Douglas, J., Craig v. Harney: (1947) 331 U.S. 367,376).
"Judges as persons, or Courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations and their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt." (Frankfurter, K., Bridges v. California (1941) 314 U.S. 252, 289).
Why, English law itself is liberated from personal pique and subjective hyper-sensitivity of "robed royalists". Little minds and large powers are incompatible bedfellows. In the landmark ruling in Sharma's case (AIR 1943 P.C. 202) the logic is luminous. "The appellants are not charged with saying anything in contempt of the subordinate courts or the administration of justice by them. In truth, the Chief Justice is alleged, untruly, as is now admitted, to have committed an ill-advised act in writing to his subordinate judges asking (as the news item says), enjoining (as the comment says) them to collect for the War Fund. If the facts were as alleged they admitted of criticism. No doubt it is galling for any judicial personage to be criticised publicly as having done something outside his judicial proceedings which was ill-advised or indiscreet. But judicial personages can afford not to be too sensitive. A simple denial in public of the alleged request would at once have allayed the trouble."
Lord Denning said in the Quintin Hogg case: "It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter." Long years ago, our own Supreme Court, in O.P. Gupta's case, observed: "Apart from this, the Constitution makes this Court a guardian of fundamental rights conferred by the Constitution and it would not desire to enforce any law which imposes unreasonable restrictions on the precious right of freedom of speech and expression guaranteed by the Constitution." (Sikri C.J.)
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