If the court shifts its gaze inward to enforce reforms and accountability measures, criticism will lose its sting.

In the wake of the Supreme Court’s recent pronouncement, the perimeters and parameters on contempt of court are under intense scrutiny. While much has been written on the subject, this article begins by narrating three instances which, in the humble opinion of the authors, succinctly delineate the boundaries of the law on criminal contempt.

The first took place on May 18, 1951, when the provisional parliament of India (the body that succeeded and had mostly the same composition as the Constituent Assembly) was debating the first Constitutional (Amendment) Bill. Dr B.R. Ambedkar discussed the judgments of the Supreme Court in State of Madras vs Chapakam Dorairajan and Venkataramana vs State of Madras and, called them “utterly unsatisfactory”. The house chided him for disparaging the apex court and Ambedkar responded:

“I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey his judgment but I am not bound to respect it. That is the liberty that every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty”. (Emphasis added)

The second took place on the occasion of the silver jubilee celebration of the Kerala high court in 1981, when V.R. Krishna Iyer, former judge of the Supreme Court, was invited to speak at a symposium on ‘Approach of Judicial Reforms’. His speech, inter alia, included the following observations:

“In this country, the Jesuses are getting crucified and the Barbases are very much upheld, thanks perhaps to the judiciary”
“Our whole judicial approach has a certain independence from all civilised behaviour.”
“In fact to speak very frankly, the Indian judiciary is non est.”

The Kerala high court was tasked with evaluating if Justice Iyer was guilty of contempt. The court delineated three categories of criminal contempt. The first category would include cases where the alleged contemnor willfully disobeys orders or processes of the court or willfully commits a breach of an undertaking given to the court. The second would extend to cases where the act of the alleged contemner prejudices or interferes or tends to interfere with the due course of any judicial proceedings, thereby having the tendency to affect the ultimate decision of the case. And the third category would include cases falling under objectionable criticism of the courts.

The court came to the conclusion that the comments by Iyer did not fall in the first two categories of the categories but may fall within the objectionable criticism of the courts. However, the high court concluded that Iyer’s criticism did not come within the purview of criminal contempt for:

“criticism of courts, within permissible limits, should not be taken to lower the authority of the courts or to scandalise them. In a democratic age no institution should be beyond the reach of honest criticism. The courts are no exception. While commenting on the functioning of courts, on the working of the judicial machinery, adverse and unpalatable criticism is as likely an offer of bouquets for the excellence of its performance. The courts should not feel elated by compliments offered or be embarrassed by adverse criticisms”.

While the court stated that it was not “overawed” by the greatness of the man, “his speech cannot be adjudged without the background of the man” to and distinguished between different categories of criticism.

“There is an ocean of difference between well informed and ill informed criticism. Those who have spent years and perhaps a lifetime as part of an institution or to study an institution may have occasion to make a thorough objective assessment of that institution. What they say in regard to a matter concerning that institution should be viewed differently from a similar statement by an uninformed person.”

The third involves P. Shiv Shankar, a former high court judge. On November 28, 1987, while he was serving as the minister of law, justice and company affairs, delivered a speech at the Bar Council of Hyderabad that later came under the scanner for being in contempt of the Supreme Court. Some of his observations included:

“The Supreme Court composed of the element from the elite class had their unconcealed sympathy for the haves i.e. the Zamindars (..)”

“Madhadhipatis like Keshavananda and Zamindars like Golaknath evoked a sympathetic cord nowhere in the whole country except the Supreme Court of India. And the bank magnates, the representatives of the elitist culture of this country, ably supported by industrialists, the beneficiaries of independence, got higher compensation by the intervention of the Supreme Court in Cooper‘s case. Antisocial elements i.e. FERA violators, bride burners and a whole horde of reactionaries have found their heaven in the Supreme Court.”

The Supreme Court, tasked with evaluating the speech for criminal contempt, concluded that the “speech of the Minister read in its proper perspective though a little intemperate, did not bring the administration of justice into disrepute or impair administration of justice”. An observation by the apex court may be particularly pertinent in the circumstances.

“It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remedy less evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about themselves. We must turn the search light inward.”

What do these narratives tell us about criminal contempt? The first is particularly relevant, for Ambedkar presided over the drafting committee that proposed and successfully defended the inclusion of contempt of court as a restriction on freedom of speech despite strong opposition from quite a few members of the Constituent Assembly.

The distinction that Ambedkar drew between obedience and respect may be crucial in delineating the boundaries of criminal contempt of court when applied to objectionable criticism of any court, including the Supreme Court. The other two involve the judiciary’s own who were scathing in their criticism of it and, commendably, the higher judiciary uses their utterances to turn its gaze inwards.

Regrettably, however, it is not a uniform phenomenon and much depends on the “predilection of the judges for there are no precise circumstances when it can be said that justice is brought into contempt”.

Notably, in 2010, Justice Iyer in an article addressed the question of whether people have a right to criticise the judiciary and if so, at what point does this freedom of expression degenerate into criminal contempt.

He wrote that unlike the executive or legislature, whose excesses beyond the constitution may be struck down by judiciary, the judiciary and judges may be corrected only by public criticism. Thus “only rare cases deserve contempt impeachment”, he said, adding that the “best answer to abuse of judges is not frequent or ferocious contempt-sentencing but fine performance”.

Importantly, the constitution conceived a powerful Supreme Court and powerful it has remained. In fact, it is the most powerful of all the apex courts in the world. Its power to do justice and command obedience is unfettered and guaranteed by the constitution itself. To that end, recourse to contempt jurisdiction seems superfluous. While a limited use of contempt jurisdiction against the executive may seem necessary at times, its usage against non-state actors, particularly to command respect, may be called superfluous. For as Justice Iyer pointed, if the court “delivers justice which is its professional, fundamental duty, criticism loses its sting”.

With great power comes great responsibility and the Indian constitution places onerous responsibilities on the Supreme Court. A speech of Ambedkar themed around labour and parliamentary democracy clearly illustrates this as he explains:

“In a parliamentary democracy there is [the] legislature to express [the] voice of the people, there is [the] executive, which is subordinate to the legislature and is bound to obey the legislature. Over and above the legislature, there is the judiciary to control both and keep them within [their] prescribed bounds.”

We believe that in order to fulfil its responsibility and command respect and enjoy continued confidence and legitimacy, the Supreme Court is relying on the wrong weapon, i.e. criminal contempt. Rather, in our opinion, the apex court needs to shift its radar to the following.

Homogenous nature of the institution

Almost 50 years before, George H. Gadbois, a political science scholar who researched extensively on the Supreme Court of India, wrote this of the 36 men who had manned the Supreme Court as justices from 1950 to 1967:

“A prototypic judge was the product of a socially prestigeful and economically advantaged family, was a Hindu (most often a Brahmin), and was educated at one of the better Indian Universities or in England.”

And 50 years hence, we may safely say that the adage “change is the only constant” does not apply to India’s Supreme Court. For it continues to be the bastion of the privileged few, with negligible representation of the Scheduled Castes, Schedules Tribes and Other Backward Classes. Only eight women have been found suitable to reach the sanctum sanctorum of India’s apex court. Also, most of the incumbent judges come from similar economic strata.

Deplorably, neither the Supreme Court has evolved any mechanism to enhance its degree of representativeness nor does it see any need of even measuring it. It is about time that the court became more inclusive and diverse in terms of gender, caste, class, sexual orientation, religious minorities and regional representation.

Lack of structural mechanisms to ensure accountability and justice

As Justice Iyer pointed out, 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. In any case, no judge has ever been impeached in India. In this regard, Iyer suggested the creation of a performance commission to receive complaints against the judges and investigate it. But no such initiative has been forthcoming.

Further, nemo debet esse judex in proporia causa i.e. ‘no person can be a judge in their own cause’ is one of the most fundamental tenets of justice. Yet, the apex court lacks a mechanism to follow it. Thus, from investigating charges of sexual harassment against its own incumbent Chief Justice (CJI) to deciding whether it should be within the ambit of RTI, cases are decided by those clearly affected by and interested in the outcome.

Opaque and cloistered

Justice is not a cloistered virtue. However, the apex institution mandated with the task of dispensing it in the country comes across as both opaque and cloistered. It was almost 15 years after the enactment of the RTI Act that the Supreme Court last year decided to declare the office of the CJI as subject to this law, thereby empowering the masses to seek information on judicial appointments and transfers for the first time.

Further, in a country as large and diverse as India, the Supreme Court continues to have its seat only in Delhi. This is despite having the constitutional permission to establish benches elsewhere in the country. Remarkably, even the Constituent Assembly envisioned a peripatetic court, though it has not materialised so far.

If the top court is able to work on these aspects, neither will it be dwarfed in front of a strong executive nor will undue criticism rattle it. An inclusive, diverse, accountable, open and transparent Supreme Court would be able to administer justice without fear or favour, without needing criminal contempt to preserve its honour.

Source : https://thewire.in/law/supreme-court-contempt-of-court-respect-constitution-power