In the last few weeks, we have been discussing the origin, international
views, pros and corns of the Contempt of Court Law. This is the final
article on this subject and here we would discuss why there is a need
for reform in this law. The Attorney General for India Soli J Sorabjee
in 1999 suggested to government to amend this law. He argued for amending
it in such a way that truth as a defence to a person should be allowed
as in the case of a libel action when the contempt case is slapped
on him/her. He also suggested that stiff penalties to be imposed if
someone intentionally alleged judiciary. Without this provision this
law serves the purpose of securing the interests of the judiciary
alone and leaves a common man in lurch. Various eminent personalities
from legal world, Jethmalani, Former Chief Justice of Supreme Court
A S Anand, criticized the functioning of the Judiciary and called
for a overhaul of the system in order to restore people's faith in
judicial administration. It is highly unfortunate that the then Law
Minister H.R. Gokhale (in 1999) categorically mentioned in the Rajya
Sabha that interference with this judicial power (Contempt of Court
Law) was constitutionally impermissible.
We should be progressive enough to dismiss the argument that any
amendment to this controversial law would make the judiciary vulnerable
to public criticism. While we amend this law, we can also allow judges
to take remedy using the normal defamation suit. It is not understandable
as to why the judges can not file defamation proceedings. It is also
interesting to note that the suggestion for an "in-house" procedure
to deal with the allegations of misconduct or corruption against the
judiciary did not take off although this suggestion is there for almost
more than three years. May be its time now to evaluate the effectiveness
of the 15-point charter that was brought out to guide the judges in
their behaviour and conduct. The judiciary should be matured enough
to take the view of the former Chief Justice Anand that "latent danger
to the judiciary lies from within". The dignity and majesty of judiciary
can only be upheld by itself.
It is to be noted that one of the members of the Constitutional Review
Committee, which reviewed the functioning of our Constitution in the
last 50 years, recently wrote in a Newspaper that criticisms against
Judiciary was not attempted whole heartedly thanks to the number of
members from the judiciary in that committee. It goes without saying
that judiciary is not yet ready for self-assessment.
Our Judiciary should allow the following words of Lord
Atkin to sink in their thoughts - "… the path of criticism is a public
way; the wrong-headed are permitted to err therein. Justice is not
a cloistered virtue. She must be allowed to suffer the scrutiny of
and respectful even though outspoken comments of ordinary men". If
Mr. Goldfarb is correct, the US Supreme Court has only once exercised
the contempt power. We must learn from the bold decision of United
State courts which have virtually given up the views of the contempt
power to silence comment on the judiciary unless there is a clear
and present danger to justice. It is important to recall the U.S.
Supreme Court's views, which are eloquently expressed in the words
of Justice Black who wrote the following in 1941: "The assumption
that respect for the judiciary can be won by shielding judges from
published criticism wrongly appraises the character of American public
opinion. For it is a prized American privilege to speak one's mind,
although not always with perfect good taste, on all public Institutions.
And an enforced silence, however limited solely in the name of preserving
the dignity of the bench, would probably engender resentment, suspicion,
and contempt much more than it would enhance respect". Justice Amua
Sekyi reasoned that "the courts must have regard to the right of every
person to express himself freely and openly on all matters of public
concern whether pertaining to the actions of the executive, the legislature
or the judiciary".
As V R Krishna Iyer yearns for, "India should welcome free speech,
especially on public issues, macro projects and policies of deep import
to the people. Informed criticism whether the president, Governors,
judges, or ministers or generals or technocrats are disparaged or
not, uninhibited by nay bogey or bully, is not only desirable but
must be encouraged. A dark democracy or ignorant citizenry, scared
by contempt is a disservice to the republic's progress". An independent
inestimable judiciary can only propel our great democracy. We need
Lord Atkins and Lord Denning to come down on our land to educate of
lawmakers and law-protectors. In a developing democracy, more speech,
more communication is needed even if a case is pending in judicial
process. This means we need to re-look at provisions relating to "sub-judice".
The same is true with respect to the Official Secrets Act (OSA) about
which we would discuss in the near future in these columns.
