The articles on this subject is the review of opinions expressed
by V R Krishna Iyer, Retired Supreme Court Judge, Rajeev Dhavan, Zahid
F Ebrahim, a Pakistani Lawyer and legal scholar, and Gail Omvedt in
leading journals in the past few years. This author thanks them and
also the Press for educating him on this topic through many essays
and articles.
In the recent times there are hectic discussions on the need for
a reform in the contempt of court law. In order for the reader to
make up his/her mind on this law and the connected issues, it is pertinent
to go through the origin and the purpose of this law, the international
stand, and the matters related to sub-judice and the freedom of expression.
It is a quite accepted norm that judges should not be indiscriminately
criticized as it would affect the high esteem in which the Judges
and the judiciary is held by the public. The Contempt of Court Law
is followed, as judges can not answer back when a criticism is thrown
at them. Judges can not file defamation proceedings. Probably it is
time that we change this clause in place of the contempt of court
law. The contempt power is a quick method by which the judges can
ask for explanations and defend themselves when a criticism comes
up against them. It is to be noted that in the Contempt of Court case,
the accused would not go through a regular trial and "truth" can not
be sued as a defense by the accused. It was made clear by the Supreme
Court in 1997 that disobeying of injunctive orders of the court even
if they are in excess of jurisdiction or misplaced amounts to civil
contempt. Thus, it silences public discussion on the orders. Of course,
criticisms of judges and judicial process in a defamatory and irresponsible
sense can not be allowed. But there can not even be a "fair and fierce"
criticism of the judges and judicial decisions.
There are three branches of law: (a) contempt in the face of the
Court, (b) prejudicing, or interfering or tending to interfere with
the due course of any judicial proceedig (on this basis, the Centre's
proposed plan to allow the "Bhoomi Pooja" and "Shila Daan" in the
undisputed but the acquired land in contrary to the order passed by
the Supreme Court in 1994 qualifies for the contempt of court punishment,
(c) the broad duty not to interfere with the due administration of
justice including not "scandalizing the judiciary".
All the newspapers in India and many political leaders including
Nehru and Indira Gandhi have been at the receiving end of the contempt
of court law. In 1920, Gandhiji offered to go to jail rather than
compromise his conscience. However, he was let off with a warning.
If we have to go by the judgement of the latest Contempt of Court
decision against Ms Arundhati Roy, as krishna Iyer said even "Gandhiji
may be liable". Our present Prime Minsiter asked the Gujarat government
to go ahead in raising the height of the Sardar Sarovar dam to 100
ft without even bothering to assure the "Resettlement and Rehabilitation"
as instructed by the Supreme Court in the Sardar Sarovar case. Last
week he tried to appease Vishwa Hindu Parishad in the Ayodhya issue
which invited the wrath of the Supreme Court. Also, his cabinet did
not apprise the Attorney general when he represented the Central Government
in the Apex Court on the Ayodhya issue on 13th March 2002. In fact
what the Attorney General said in the court was the views of the Central
Government as per the Constitution and his non-secular arguments completely
goes against the Constitution and the 1994 judgement of the Apex Court.
Recently, the Chief Justice of India remarked that judges are not
coming to the courts by 10 am and even if they come, they do not stay
up to 5 pm. In all these instances those who made the remarks qualify
for Contempt of Court punishment if one goes by the hypersensitivity
shown by the Apex Court in Arundhati Roy case.
The Indian judiciary was set up by the British where it was evolved
as an instrumentality of the British Crown. After the Independence
and after the Constitution was put in place, the Judiciary was envisaged
as watchdog body. These watch dog body is independent of the executive
and entrusted with a task of supervising that all other Institutions
function in accordance with the Constitution and the rule of the law.
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