It’s time to amend law on contempt of court



in Satyam Bruyat | India

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.

But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.

In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.

In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.

Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.

This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.

“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”.

Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case ( Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the Judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion.

In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.

Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.

He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.

To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.

He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.

Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.

It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.

If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court.

But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.

I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

DISCLAIMER : Views expressed above are the author’s own.

Supreme Court to proceed against Prashant Bhushan in contempt case

J. Venkatesan IN THE HINDU

Supreme Court of India

Bench had sought an apology for his interview alleging corruption in judiciary

New Delhi: With advocate Prashant Bhushan — facing contempt of court charges for his interview alleging corruption in judiciary — making it clear that he would not tender an apology, the Supreme Court on Thursday decided to proceed with the case on merits.

On December 7, 2010, a Bench of Justices Altamas Kabir, Cyriac Joseph and H.L. Dattu, hearing a contempt petition against Mr. Bhushan and Managing Editor of Tehelka magazine Tarun Tejpal for publishing the interview, had asked the two contemnors to consider offering an apology.

“Judge of integrity”

During the resumed hearing on Thursday, senior counsel Ram Jethmalani, appearing for Mr. Bhushan, submitted a written statement on behalf of Mr. Bhushan which said: “My remarks regarding the present Chief Justice of India, S.H. Kapadia, in my interview published by Tehelka magazine, appears to have given rise to some misunderstanding about the purport of those remarks. It is wrong and most unfortunate that my remarks appear to have been misconstrued by some as imputations of financial corruption. Justice Kapadia is widely perceived to be a Judge of absolute financial integrity and I fully share that perception.”

“On March 25, 2010, my senior counsel Mr. Jethmalani made a statement in my presence and with my concurrence on this issue which has been recorded by the court to the effect that: let it also be recorded that it has been submitted by Mr. Ram Jethmalani, senior counsel appearing for Mr. Prashant Bhushan that his client has the highest regard for Justice S.H. Kapadia and no disrespect was meant to his Lordship in regard to certain statements attributed to him which have been published in the Press.

“I have thus made it clear at every stage of the proceedings that I have the highest respect for the integrity and character of Justice Kapadia, the present CJI. Under the circumstances, I do not think that I owe any further explanation and this explanation should suffice to put an end to any misunderstanding about the purport of my remarks.”

When Justice Kabir, after perusing the statement, asked counsel “why can’t Mr. Prashant tender an apology or regret,” Mr. Jethmalani said: “You [court] cannot extract an apology from my client. Contempt proceedings should not proceed under somebody’s threat. Only cowards who are not willing to face the proceedings will tender such an apology. I will not advice my client to tender [an] apology.”

When the Bench passed a brief order that it was not accepting the statement and would go ahead with the case on merits, Mr. Jethmalani said, “If the proceedings are allowed to go on, it would open a can of worms.” Justice Kabir replied: “If they are to be opened, open it.”

Mr. Jethmalani said: “Everyone knows what is happening in this court for the last two years but no one dared to speak. If people should suffer for talking truth then millions of people are ready to go behind bars.” Justice Kabir replied, “Let it be.”

Senior counsel Rajeev Dhavan, appearing for Mr. Tejpal, said his client was adopting the stand of Mr. Bhushan and said: If truth is going to be the defence then some of the former CJIs will come under X-ray.”

Justice Cyriac Joseph observed: “Sometimes even Judges express regret to the counsel if they feel that a particular thing was understood in a particular manner and which was not the intention of the counsel. Similarly, there may be nothing wrong in offering regret by the contemnors if the perception of others is that what they said is contempt.”

When the former Union Law Minister, Shanti Bhushan, who had alleged that there was corruption in the judiciary and wanted his application to be heard, the Bench said it would consider it on the next date of hearing. The Bench, which had already held that the contempt petition was maintainable, would hear the case on merits from April 13.

A case of judicial inaction

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IT ALL started on May 19, 2008, with the murder of V. Jayaraman of Pondicherry, who exposed a University marksheet scam. A Central Bureau of Investigation inquiry indicted a student named Sridharan and his father, C. Krishnamurthy who applied for bail in May 2009 which was before Justice R. Reghupathi. Then, impropriety broke loose. Allegedly, lawyer R. K. Chandramohan met Justice Reghupathi in his chambers in the Madras High Court on June 12, 2009, inviting him to speak to ‘ minister Raja’ over the telephone to let the accused father and son off.

Justice Reghupathi refused to oblige. By June 29, the matter became newsworthy when Chandramohan was reported to have upset court proceedings. Reported in a national daily the next day, the imbroglio stood exposed. Justice Reghupathi himself announced in open court on him being approached by a lawyer on behalf of a Union minister.


It was certainly the duty of Justice Reghupathi to report the matter to Chief Justice H. L. Gokhale of the Madras High Court. This he did on July 2, 2009. Sadly, Justice Gokhale who could have constituted a bench and issued a notice for contempt to the advocate through whom the minister’s name would have come out did not do so. Instead, Justice Gokhale wrote a letter on July 5, 2009, to the then Chief Justice of India K. G. Balakrishnan, which was dispatched on July 7 with his own covering letter which was duly acknowledged by CJI Balakrishnan. As it happens, the CJI did nothing, taking the view that there was nothing to act on! Subsequently, some action was taken to suspend lawyer Chandramohan.

Difficult though it is to believe, the then chief justices of Madras and India failed to take appropriate action. This total failure on the part of the judiciary does not do it credit. These acts of judicial forbearance would have died a natural death but for the fact that Minister Raja was in the news over the 2G spectrum scam. Media memory is stronger when triggered by whip- lash revivals. The matter resurfaced in December 2010 after 18 months of inaction.

The connecting point was the result of a Public Interest Litigation ( PIL) before the Madras High Court which ruled that action be taken to suspend lawyer Chandramohan. Wounds healed by judicial nonfeasance amounting to misfeasance were reopened. Retired Justice Reghupathi cannot be blamed for inconsistency. In retirement, faced with the new situation, he confirmed not only what he had said in open court in June 2009, but that he had sent everything to CJ Gokhale who had transmitted it to CJI Balakrishnan.

What happened next was an ex- post facto judicial ‘ blame- game’ between the two Chief Justices. On December 14, 2010, Chief Justice Gokhale, now a sitting judge of the Supreme Court, decided to contradict former CJI Balakrishnan who, according to Gokhale had “ given erroneous impression of my ( Gokhale’s) role in the matter.” A press release by a sitting SC Judge against a former CJI is unprecedented.

But its contents were illuminating. He said the former CJI knew from paragraph two of Reghupathi’s letter that Raja was the erring Minister. CJI Balakrishnan also wrote back to apprise CJ Gokhale of parliamentary concern addressed to the Prime Minister. Gokhale did nothing except to affirm that he had already sent Reghupathi’s letter to the CJI. In a sense, CJ Gokhale can be read to confirm that he failed to take appropriate action.

In December 2010, a controversy bordering on farce erupted between Gokhale and Balakrishnan, with Gokhale insisting that the former CJI knew that Raja was the minister in question, Balakrishnan denying this and Reghupathi thanking Gokhale. But whether Balakrishnan knew whether the Minister involved was Raja is mostly irrelevant.


Four issues stand out. The first is that the controversy was in the public domain. Everyone knew about it. The Prime Minister, parliamentarians, the two Chief Justices, the Madras Bar and, through the media, the general public. The two Chief Justices could have acted but failed to do so. CJ Gokhale was directly armed with the power to issue notices for contempt. CJI Balakrishnan could have used the Nadiad ruling to issue notices or prompted CJ Gokhale to do so. The controversy was allowed to lie fallow by the combined inaction of both Chief Justices. Second, Justice Reghupathi had declared what happened in Court and informed CJ Gokhale. He could not have constituted a contempt bench. That was for CJ Gokhale to do.

Third, CJ Gokhale should have issued notices for contempt. He, and — in some sense — only he had the power and jurisdiction to do so. He need not have passed the buck on to CJI Balakrishnan. But that was easier for him because, presumably, he did not want to ruffle the feathers of the Madras Bar of which lawyer Chandramohan was the President. Any controversy may have blighted his chance for a Supreme Court appointment. Clearly Gokhale’s abnegation does not seem worthy of a Chief Justice even if hitherto, he had a relatively colourless judicial career. Fourth comes CJI Balakrishnan who though from Kerala, was also a former Chief Justice of the Madras High Court with connections in the city. The issue was important enough for him to act.

His forbearance is astonishing. For him now to say that he did not know that Raja was involved is ducking the hook. In terms of his overall responsibility, this was irrelevant. At best, all this would show is that he was not shielding Raja. If so, who was he shielding? And, if nobody, why did he not act? There are things said about CJI Balakrishnan that may not bear repetition. But, his term as CJI is not regarded with enthusiastic commendation. He did not have to wait for Gokhale to act. Nor, indeed, did Gokhale have to wait for Justice Balakrishnan to act.


It took a PIL to ignite the controversy to effect the suspension of the gobetween lawyer. By this time, the justices have moved on. Reghupathi has retired. Gokhale has become a judge in the Supreme Court. But he thought it fit to make a ‘ holier- than- thou’ press release against Balakrishnan who, in turn had retired as CJI to hold the post- retirement job of heading the NHRC. Everyone is saved precipitous embarrassment though there are calls for Balakrishnan’s resignation from the NHRC. But there is no point denying that the reputations of former Chief Justices Gokhale and Balakrishnan are affected.

Neither discharged their duty. In the Bhattacharya case ( 1995), Justice K. Ramaswami declared that judicial misdeeds could only be cured by complaints to High Court CJs and the CJI. These incidents have made that plea hollow. The judicial record in protecting judicial probity has been embarrassing. As far as the facts are concerned, the situation is aptly described by the poet Tom Gunn: “ Youknow- I- know- you know- I know- you- knew.” The judiciary cannot be trusted to cleanse itself without an objective process that does not depend on the personality of individual Chief Justices. A proper process of appointments and complaints machinery is necessary. In this controversy, the law minister has sided with CJI Balakrishnan. We hope his Bill to create a new machinery to discipline the judiciary and make it accountable for judicial corruption is not half- hearted!

The writer is a Supreme Court lawyer

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Counsel cannot be allowed to succeed in snatching an order in his favour by advancing threat, says Judge

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CHENNAI: This is the letter dated July 2, 2009 written by R. Regupathi, the then Judge of the Madras High Court, to the Chief Justice of the Madras High Court containing the relevant part where there is a specific reference to R.K. Chandramohan.

“On 12.06.2009, at about 2 p.m. during Lunch Recess, while I was in the Chamber, High Court, Madras, my Office Assistant, Mr. Mujibur Ali, informed me that Mr. Chandramohan, Chairman, Bar Council of Tamil Nadu, is waiting and seeking for an appointment to meet me and, immediately, I allowed him to come in. To start with, he discussed about the general subject on Advocates and so proceeding, he said that two persons, who are father and son/accused in a criminal case, are family friends of a Union Minister by name Raja, and that the petition filed by them for anticipatory bail must be considered favourably. Simultaneously, he handed over his mobile phone by saying that the Union Minister is on the line to have a talk with me. Right away, I discouraged such conduct of Mr. Chandramohan and told him that the case would be disposed of in accordance with law, if listed before me.

“Subsequently, on 29.06.2009, second anticipatory bail petition came to be filed for the same accused and on behalf of Mr. Chandramohan (counsel on record for the petitioners/accused), who was present in the court, Mr. Masood, Advocate, argued by stating that some new points need to be submitted and, for such purpose, the Case Diary must be summoned. Adverting to the counter filed by the prosecution and referring to the view I had already taken during the previous occasion and pointing out that there was no change of circumstance to positively consider the case of the petitioners, it was conveyed that there was no valid reason or ground to grant the prayer in the 2 {+n} {+d} petition. It was also observed that the counsel may argue the case in detail, however, this time orders would be passed on merits and they would not be allowed to withdraw the petition.

“Again, the counsel insisted that the case diary must be called for and the case be heard in detail with reference to the materials collected during the course of investigation. I have impressed upon the representing counsel by explicating that a like direction could be given to the prosecution only in the event of the Judge satisfying that such course is inevitable and absolutely necessary in a given situation and that, on mere demands and as a matter of routine, such exercise cannot be undertaken. At that time, Mr. Chandramohan stood up and made a similar demand and when I emphatically declined to accede to his adamant demand, he vociferously remarked that the court is always taking sides with the prosecution and not accepting the submissions made by the counsel for the accused while giving importance to the Prosecutor.

“On such pointless remark, I said that the counsel engaged to argue on his behalf has made his submission and he is not supposed to pass such slanderous and derogatory remarks; for, all these days, the court has been passing orders after hearing the parties and assessing the cases on their own merits and in accordance with law. In spite of that, Mr. Chandramohan insisted that the Case Diary must be summoned and the matter be adjourned to some other day. Since Mr. Chandramohan highly raised his voice and his approach towards the court was quarrelsome, I told him that a person like him, an advocate holding position as Chairman of a State Bar Council, should not behave in such a fashion. Still the learned Advocate was outburst and uncontrollable, and I observed that a counsel, who made an attempt to exert influence on the court by using the name of a Cabinet Minister, cannot be allowed to succeed in snatching an order in his favour by advancing threat. Due to such odd experience, I had to direct the Registry to place the papers before Your Lordship for obtaining orders to post the case before some other learned Judge.

“The case concerned was taken up at the end in the afternoon and inside the court hall, there were about 4 to 5 Advocates present and no one from the Press was there. That being so, the oral observations actually made came to be translated by the Print and Electronic Media with their own interpretations and ideas …….

“I have written this letter/report to apprise Your Lordship the actual state of affairs Involved.”

Court orders suspension of Chairman of Tamil Nadu Bar Council

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K.T. Sangameswaran IN THE HINDU

CHENNAI: The Madras High Court on Tuesday ordered the suspension of the membership of R.K. Chandramohan and consequently his Chairmanship of the Bar Council of Tamil Nadu and Pondicherry (BCT) forthwith for an alleged attempt to influence a High Court Judge using the name of the then Union Minister A. Raja in a matter relating to an anticipatory bail plea.

In its 78-page common order on two public interest litigation petitions, a Division Bench comprising Justices F.M. Ibrahim Kalifulla and M.M. Sundresh said that apart from attempting to influence the Judge R. Regupathi (since retired), Mr. Chandramohan was stated to have behaved, in the words of the Judge, in a very unruly manner in the open court.

The Bench said the petitioner should file a formal complaint, along with the High Court order, to the BCT within two weeks. He should file a complaint copy with the Bar Council of India (BCI) simultaneously. Mr. Chandramohan should not be permitted by the State Bar Council to function as chairman pending disposal of the disciplinary action by the BCI.

In a petition, the petitioner, Elephant G. Rajendran, sought a writ against Mr. Chandramohan directing him to explain under what authority he held the office as Chairman of BCT. In the other petition, he sought a direction to the BCI to initiate appropriate action against the BCT Chairman.

The petitioner submitted that an anticipatory bail application filed by a medical practitioner came up before Justice Regupathi on June 29 last year and Mr. Chandramohan appeared on behalf of the accused. During the hearing, the Judge stated that “a Union Minister had called me to exert influence in favour of accused and to release the petitioner/accused on anticipatory bail. You yourself know everything.”

The petitioner contended that Mr. Chandramohan’s conduct in casting aspersions against the Judge was gross contempt and interfered with the administration of justice. He had used the name of a Union Minister for achieving an illegal action. Therefore, he should be disqualified from the post.

Following a direction from the Judge, the High Court Registry produced a letter dated July 2, 2009, written by the Judge to the Chief Justice of Madras High Court in which he had stated that on June 12, 2009 while he was in his chamber, Mr. Chandramohan met him and said that two persons who were family friends of the Union Minister had filed the petition for anticipatory bail in a criminal case and it must be considered favourably. He also handed over his mobile phone saying that the Union Minister was on the line to talk to the Judge.

Right away, the Judge said, he discouraged such conduct and told Mr. Chandramohan that the case would be disposed of in accordance with law. On June 29, in the open court the advocate vociferously remarked that the court was always taking sides with the prosecution and not accepting the submission made by the counsel for the accused in the case while giving importance to the prosecutor. Later, the Judge directed the Registry to place the papers before the Chief Justice for posting the case before some other Judge.

In its order, the Bench said there was no reason to doubt the veracity of the Judge’s statement in the absence of allegations of ill will or mala fides against the Judge. The conduct of the BCI Chairman in having maintained silence in his counter affidavit went to show to a very large extent that in effect he admitted the allegations. He neither repented nor displayed any conduct of remorse. If really such an incident had not taken place, the first person to have refuted the Judge’ s statement should have been Mr. Chandramohan.

The Bench observed that the Judge’s reaction was much more courteous than was expected. What had been alleged against Mr. Chandramohan by the Judge did call for stringent action at that point of time itself by handing him over to the appropriate authorities. Unfortunately, Mr. Chandramohan instead of realising the Judge’s magnanimous attitude displayed a much more disastrous attitude by behaving in an unruly manner in the court hall when the Judge had no other option except to reveal in the open court the monstrous and unpardonable behaviour of the advocate.

It said the magnitude of the behaviour of Mr. Chandramohan “was unprecedented and the same had to be dealt with an iron hand to ensure that such a behaviour was not even dreamt to be attempted by any other unscrupulous element under the garb of wearing the glorious robes of an advocate.”

Having regard to the order passed and directions issued, the Bench said it was not now inclined to take any proceedings for contempt.

Willing to go to jail, won’t say sorry: Shanti Bhushan

New Delhi, Nov 10 (IANS) Former law minister Shanti Bhushan Wednesday told the Supreme Court that he and his lawyer son Prashant Bhushan would prefer to go to jail instead of tendering an apology for pointing to corruption in the judiciary. Bhushan told this to the court after he and his son were asked if they were willing to offer an apology.

The former law minister told the apex court bench of Justice Altamas Kabir, Justice Cyriac Joseph and Justice H.L. Dattu that he was speaking for himself and his son Prashant Bhushan.  The senior Bhushan said this when he was asked by the court whom he was speaking for. He bacame a party to the contempt case by filing an affidavit saying that of 16 chief justices’ of India, eight were ‘definitely corrupt’, six were ‘definitely honest’ and for two of them ‘a definite opinion cannot be expressed.’ The court is hearing a contempt petition against the senior counsel Prashant Bhushan and managing editor of Tehelka magazine, Tarun Tejpal.

The contempt proceedings were initiated after Prashant Bhushan in an interview to Tehelka levelled allegation of corruption against the sitting judges of the apex court. Prashant Bhushan in his interview had alleged that Justice S.H. Kapadia (now the Chief Justice of India) who had the shares in Sterlite company decided a mining lease case in favour of the company.

The court took serious objection to the senior counsel Rajiv Dhawan saying ‘the fact that there is corruption in judiciary is not in doubt’.  Reframing his statement, Dhawan said that former chief justice S.P. Barucha had said that 20 percent of judges in the country were corrupt. To this, Justice Kabir said ‘he did not say that. It was other way round’ meaning that Justice Barucha had said that 80 percent of judges were honest. That the remaining 20 percent were corrupt was an inference drawn by the people, he said.

Justice Kabir said that you can say there is ‘a little doubt’ that there is corruption in judiciary.  Appearing for Tejpal, Dhawan said that the concern expressed in the Tehelka magazine were ‘bonafide’ and ‘genuine’.  He said that question is if there were genuine and bonafide concerns about the state of affairs in judiciary then how they could be dealt with.  He questioned the summery procedure of initiating the contempt proceedings against the alleged contemnor. He said that there was no mechanism by which genuine grievances or concerns about the judicial functioning could be addressed.

He told the court that it was dealing with a case of ‘constructive contempt’. The question is was it a malafide and mischievous exercise of editorial powers.

Against abuse of the contempt power

The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance.

Justice V. R. Krishna Iyer in THE HINDU

‘We, the People of India’ made the Constitution and the sovereign republic of India, and all power exercised by the three instrumentalities of state function under the Constitution. Its Preamble speaks of justice — social, economic and political — as a fundamental privilege of the people. Social justice and equality before law are of more value to the common masses, while the higher classes are often allergic to the under-privileged and the have-nots.

The judges of British vintage are class-conscious, as Professor Griffith of London University explained in his book, The Politics of the Judiciary. Their perspective is prejudicial to the majority of Indians who are poor and do not enjoy human rights though they are mandated in the Constitution as a fundamental right.

The judiciary as a class must reorient its basic philosophy to suit a socialist secular democratic republic. This transformation is essential if fiat justicia is to be a paramount principle of governance in India as emphasised by Jawaharlal Nehru in his tryst-with-destiny speech as India became independent.

Lord Justice Scruttin said in an address delivered to the University of Cambridge Law Society on November 18, 1920: “Where are your impartial Judges? They all move in the same circle as the employers, and they are all educated and nursed in the same ideas as the employers. How can a labourman or a trade unionist get impartial justice? It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between two disputants, one of your own class and one not of your class.” (1 Cambridge Law Journal, Page 8).

The Constitution gives you power. And all public power is held as a trust. If you breach this trust you pay for it: by facing responsible criticism. When there is justice, which is your professional-fundamental duty, criticism loses its sting. And the Preamble to the Constitution spells it out. Social, economic and political justice is your basic obligation, which you have to fulfil without fear or favour. If you fail here, you disrobe yourself and deserve correctional criticism.

The judicature is a noble and never a nocent institution. If you goofily debunk and unjustly bring the judiciary into disrepute, you judges commit contempt and get punished. The court is a magnanimous institution, majestic and glorious, and it sustains the confidence of the nation. But if the judiciary behaves as an elite upper sector and denies the rights of the common masses, criticism is what you earn. Remove those judges who conduct themselves with a sense of contempt for social justice and human rights: that is the fascist, authoritarian way.

“Small is beautiful,” said Gandhiji. You sneer at the slum-dweller, the ill-clad and the illiterate. You are not pro-people. Remember the Roman adage: “Whatever touches us all should be decided by all.” Then you as a member of a class-conscious sector must be denounced.

Above the Executive and Legislature is the Judiciary to guard the values of the Constitution with integrity, fearlessness, frankness and fraternity. That is your institutional glory. No one shall darken your bright image. The little poor seek your compassionate protection. You are the wonder of democracy. I salute you as the humanist defender of people’s constitutional rights. When you fail to function, sharp criticism is the only corrective. The question then arises: have the people a right to criticise you, and if so, when does it become contempt of court, and what are the limitations to this freedom of expression?

This has become a critical issue. Judges as an instrumentality under the Constitution have vast powers under Article 141 to 144. When the Executive misuses its powers, the court can strike down its actions. When the Legislature commits excesses beyond the Constitution or otherwise defaults, the court can declare it void. When judges themselves are guilty of flaws, shortcomings or violations, public criticism is the only way judges can be corrected.

Frankfurter of the U.S. Supreme Court observed: “‘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 of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

After all, judges are human and may commit mistakes and blunders. Either a Performance Commission or vigilant, vibrant public criticism, dignified and responsible, should correct judicial wrongs. With large powers and a considerable level of immunity, judges are apt to turn noxious and culpable at times. Generally the robed brethren maintain a high order of conduct. Even so, aberrations do happen. Therefore, criticism becomes necessary in a democracy. The Constitution insists that judges should be of good behaviour. The Bench is a sacred seat and divinity is incompatible with arrogance, pride and vanity.

Hugo Black, a great judge of the U.S Supreme Court, observed: “Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal.”

Indian judges belong to an elite class like their English counterparts, and can be relieved only by impeachment which is a political operation beyond the pragmatic capabilities of the masses. Therefore, a Performance Commission is an essential instrument to receive complaints about judges and investigate them. Their dignity and decorum never allow frivolity or private motives to affect the functions of, or inflict injury on, judges. Transparency and accountability are democratic attributes. In spite of this, vulgar elements in public life misuse free speech and abuse judges irresponsibly and with a sense of revenge. They deserve to be punished by the punitive use of the power of contempt. This power is wide.

Lord Denning in his Family Story has recorded what Lord Shawcross said about one of his judgments: “Denning is an Ass.” The Times (of London) published this. In spite of it, Lord Denning declined to take contempt action since he took the view that he would disprove it not by contempt proceedings but by means of his performance. Of course, he was the best judge of the Commonwealth.

This is an example for judges in India, too. The best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance. Of course, rare cases may deserve contempt impeachment. Bad judges deserve to be censured by a Performance Commission with access to every citizen. How many judges in our High Courts are good by the canon laid down by Douglas? He wrote: “… [T]he 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.”

The weakness of many judges who escape through contempt power but should not, was portrayed by Lord Goddard: “A judge of first instance need not necessarily be a consummate lawyer. He should be a man of even temper and one who can be trusted to display and continue to display courtesy to the litigants and bar; in short, if I may use a much-abused expression, he should be a gentleman. A sense of humour … is always an asset, but a constant joker is anathema. Another quality devoutedly to be wished for is the ability to keep reasonably silent while trying a case. A garrulous judge is a misfortune; he maddens the bar and slows up proceedings, but, unhappily, it does happen that a somewhat taciturn barrister becomes surprisingly talkative once he is seated on the bench…. The public expression of what some would call strong convictions, and others prejudice, are best avoided by those who desire to become judges.”

And here is a statement by ‘Learned Hand:’ “The larger part of my official life I have been in a court where three sit together, and that seems to me of immense advantage; indeed, I know it is an immense advantage. The joint judgment of three is worth much more than three times the judgment of one, unless he is a genius.”

But how many of our learned brethren will qualify to be on the Bench if this test were a condition for elevation?

Judging the judge

Jyoti Punwani, TNN, May 3, 2010, 03.24am IST

Last week, Abbas Kazmi, the former lawyer of Pakistani gunman Ajmal Kasab, filed a contempt of court petition against Judge M L Tahiliani, the additional sessions judge presiding over Kasab’s trial. On November 30, 2009, the judge had dismissed him for “not cooperating” and ordered him to leave the court forthwith. By “humiliating” him for doing what Kazmi regarded as his duty, the judge had committed contempt of his own court, says Kazmi’s petition. Contempt proceedings against litigants, lawyers and journalists are a dime a dozen. But contempt proceedings against a judge?

Section 16 of the Contempt of Courts Act, 1971, applies specifically to “judges, magistrates or other persons acting judicially”. They are liable for contempt of their own court or any other court in the same manner as any other individual, except when they make observations while hearing appeals against judgments passed by lower courts. Contempt of court is invoked when someone acts in a way that scandalizes the authority or lowers the dignity of a court or interferes in the due course of a judicial proceeding or in the administration of justice. There have been very few cases where this law has been invoked against judges, and fewer still where convictions have resulted.

The reasons are two-fold, says Justice (Retd) B N Srikrishna. “First, lawyers and litigants are scared of annoying judges by filing cases against them. Second, and more important, judges are a dignified lot who know how to maintain the dignity of the court and ensure that the court is not brought to ridicule,” he says. But lawyers recall instances where judges have thrown papers at them. In a 1973 case, a member of the UP Revenue Board, a quasi-judicial authority, was alleged to have abused a lawyer appearing before him with the words “Nalayak gadhe saale ko jail bhijwa doonga; kis idiot ne advocate bana diya hai?” and to have ordered the court peon to throw the lawyer physically out of the court. The lawyer filed a contempt of court petition in the Allahabad high court against the member, saying that he deserved to be punished “to save the dignity, honour and decorum of his court”.

The high court issued notice to the member, who appealed to the Supreme Court on the question of procedure. Upholding the procedure, the Supreme Court sent it back to the high court to be decided on merits. But there is no mention in law journals whether he was convicted. “Judges don’t normally behave like this,” says Justice (Retd) P B Sawant, “but this section serves as a warning to them.” Supreme Court lawyer Prashant Bhushan says that contempt proceedings against judges are rare because “one would have to show that an act purported to have been done by a judge in the judicial discharge of his duty was deliberately mala fide and calculated to obstruct the administration of justice or that his remarks were scandalous, which is difficult to prove”. Bhushan reiterates Justice Srikrishna’s opinion—that people are wary of taking on judges and adds that it is an uphill task. “Even if one wants to file an FIR against any high court judge, even in corruption matters, one needs written permission from the Chief Justice of India,” he says. “We are still waiting for permission in many such cases.”

In a 2007 case, Delhi high court judge V B Gupta found the order of a sessions court judge amounting to contempt of court, and said as much in his order. The sessions judge had issued a warrant of arrest against an accused meant specifically for absconders, although the accused’s bail application was pending. So angered was Justice Gupta by this order that he ordered the sessions judge to go back to law school.

“Since Mr R K Tewari does not have even elementary knowledge of the Code of Criminal Procedure, under these circumstances it would be appropriate if he undergoes a refresher course at the Delhi Judicial Academy in criminal law and procedure for three months. Director, Delhi Judicial Academy, should submit to this court the performance report with regard to this judicial officer,” said Justice Gupta’s order. However, contempt proceedings were not actually filed against the sessions judge. There is one case, however, where a judge was actually sentenced for contempt—but the action was initiated by a higher court. District judge Baradakanta Misra was suspended by the Orissa high court in 1972. He challenged his suspension in a letter to the governor, wherein he ascribed mala fide upon the high court, describing it as “an engine of oppression”. He made similar allegations in letters written to the registrar. In 1973, Judge Misra was convicted by a full bench of the Orissa high court, on six counts of contempt, and sentenced to a fine and two months’ imprisonment. What’s more, his conviction was upheld by the Supreme Court, which reduced his sentence, considering that he was at the end of his career, to a fine of Rs 1000, or, in default, three months’ imprisonment. But this was a rare case. So why did Abbas Kazmi choose to file a contempt petition? “I have put my career at stake because of my izzat. I cannot tolerate it when people point fingers at me and say: ‘You were the lawyer thrown out by the judge’. I was simply doing my duty as a defence lawyer.”

SC to hear contempt matter against Prashant Bhushan on Mar 25

New Delhi: The Supreme Court today said it will consider on March 25 the plea for taking suo motu cognizance of contempt action against noted advocate Prashant Bhushan who was issued with a notice for allegedly casting aspersions on a senior apex court judge and previous chief justices of India.However, before a three-judge Bench headed by justice Altamas Kabir fixed the date, senior advocate Ram Jethmalani, appearing for Bhushan, said there was a danger in proceeding with contempt proceedings.

“Upholding the dignity of the court should be the first priority of the court. This proceeding will damage the dignity of the court and institution rather than restoring it,” he told the Bench also comprising justices Cyriac Joseph and HL Dattu. Senior advocate Harish Salve, who had moved the application for the Court to initiate suo motu contempt against Bhushan, wanted the Bench to relieve him of the duty of amicus curaie on the ground that several allegations have been made against him by the alleged contemnor.

Salve said that in the counter-affidavit, Bhushan has made personal allegations against him and as such he had not responded to them and was seeking the court’s permission to relieve him from the duty of amicus curaie in the matter. However, the Bench persuaded him to continue saying the personal allegations against him should not come in the way when the matter relates the dignity of an institution. “We need your assistance as it is an issue about the dignity of the institution,” the Bench said.

In Chhattisgarh, jail is the cost of filing a public interest litigation plea

Aman Sethi in THE HINDU

Police detain three witnesses to killings in Gompad village, ban journalists from site

Police decline comment on veracity of claims made in petition filed by Sodi Sambho and others. There is concern that the facts surrounding the Gompad killings might never be known

Konta: The mystery surrounding the killing of nine Adivasis in Gompad village in Dantewada district in October last year is deepening, with the Chhattisgarh police detaining three more witnesses to the incident and restricting all access to the area on the pretext of Operation Green Hunt. Operation Green Hunt is a catch-all phrase, used by the police and media alike, for all major anti-naxal offensives since July 2009.

Total control

As previously reported by The Hindu, the Chhattisgarh police have assumed total control over the movements of Sodi Sambho – one of several witnesses in a Supreme Court petition that alleges that the 9 civilians were killed by the security forces. On Friday, armed policemen and Special Police Officers (SPO) lined the length of the highway from Dantewada town to Konta, the block headquarters closest to Gompad, stopping vehicles and questioning commuters. Travelling with local journalists Anil Mishra of Nayi Duniya and Yashwant Yadav of Navbharat, this correspondent was repeatedly detained along the route and told that Gompad village was out of bounds as a major anti-naxal operation was underway. Non-journalists were, however, let through.

Concerned that we might enter the village from Andhra Pradesh, we were detained by SPOs for about 45 minutes on the Chhattisgarh-A.P. border and allowed to proceed only after the intervention of Deputy Inspector-General, Dantewada, S.R.P. Kalluri. At present, the police have refused to comment on the veracity of the claims made in the Supreme Court petition filed by Sodi and others. “The Superintendent of Police of Dantewada has been told to initiate an enquiry into the Gompad incident,” said T.J. Longkumer, Inspector-General Police, Bastar.

However, witnesses to the killings insisted in interviews to The Hind u that the police were involved in the early morning ‘sanitisation operation’ and killed nine villagers (seven from Gompad and two from nearby villages), including three women and a 12-year-old girl. “The police also cut off the fingers of a two-year-old infant,” said one witness speaking on condition of anonymity fearing police retribution. “The police stabbed Madavi Venka [a victim] and then shot him fatally,” said another witness, “All those killed were innocent villagers with no involvement with the naxals.” The witnesses were interviewed, via a translator, at a weekly bazaar at Adralpalli on the Andhra Pradesh side of the border between the two States. Due to the police cordon around Gompad village, witness reports could not be verified independently.

The villagers also claimed that the police have detained Soyam Rama, Soyam Dulla and Kattam Dulla, three witnesses whose testimonies could prove crucial when the case comes up for hearing in the Supreme Court. “All three men have been held at the police station at Konta for the last one week,” said a Gompad villager. The Adivasis were picked up by the police in the first week of January when they came to Dantewada town for a public airing of grievances, the villagers said, an assertion DIG Kalluri contests. “We have never detained these three men,” he said. “They have never been taken into police custody.” However, police sources speaking to The Hindu on background confirmed that the three men were indeed held “for questioning” at the Konta police station till January 14 but could not confirm their current location. At present, their whereabouts are unknown.

Yet to be addressed

Police control over witnesses and restrictions on the movement of the press have raised concerns that the facts surrounding the Gompad killings might never be known. In another PIL petition pending before the Supreme Court for the past three years, allegations of large-scale killing of Adivasis and arson by the Salwa Judum and security forces have yet to be addressed.