A legal system depends on the quality of its lawyers. This is partly a matter of education and training. But there also have to be adequate safeguards to weed out bad apples and encourage good behavior. The public would certainly like to see a comprehensive overhaul of the Advocates Act- as opposed to the mild tweaking on offer in the Law Commission's draft Act. Perhaps, something bolder might emerge and it might deal with the subject of this post- viz. how to deal with criminal contempt by an officer of the Court?
The respected legal scholar, Faizan Mustafa,Vice Chancellor, Nalsar University of Law, Hyderabad, has a well written piece on the Bhushan contempt ruling in the Tribune.
AFTER the Spycatcher judgment by the House of Lords in 1987, British newspaper Daily Mirror published an upside-down picture of three law lords with the caption, ‘You Old Fools’. Lord Templeman refused to initiate contempt proceedings and said he was indeed old and whether he was a fool was a matter of perception, though he personally thought he was not one. British judges don’t take notice of personal insults, if uttered without malice. After the Brexit judgment, Daily Mirror titled its story ‘Enemies of people’and again no contempt notice was issued.
A young lawyer, associated with Subramanian Swamy filed the case. The Attorney General did not back it but the Bench decided to hear the matter. Why? An officer of the court felt that the Court had been brought into contempt. He had a legal remedy and the Bench allowed him to pursue it.
Britain does not have the same sort of hyper-active PIL culture as India. But it is a double edged sword. It may be used against those who have themselves used it.
Would a British Supreme Court proceed against an officer of the Court- a barrister, let us say, who has used intemperate language against the Bench? I think, such a person would offer a fulsome apology. However, he might still be disbarred. Rudy Narayan attacked British Judges for their Racism, which was why he was a hero to many Black British people, and faced professional sanctions and was finally disbarred for another offense. This is the main sanction against British barristers. In Ireland recently a barrister was disbarred for calling a Judge a disgrace. Judges are part of the Disciplinary committee of the Chambers which some view as unfair.
My point is that Britain has a stronger safeguard against miscreant officers of the court who scandalize the Bench. That is why they don't need the offense on the law books. It was abolished a few years back. The question is, does India have any similar sanction over errant officers of the Court? Can they indeed say anything they like about judges? This is the crux of the problem. The fact is India's legal landscape has evolved differently from Britain. Thus, we can seek no guidance from the British example. There Barristers tend to be self-policing. Judges are held in high esteem though the Politicians and the Tabloids sometimes have a go at them. What is happening in India, however, is quite different. Some lawyers and journalists are unhappy with a succession of judgments. But others are very happy with them. If a partisan of the first group scandalises the court, can the Bench take action based on a complaint from a member of the second group? The answer, it seems, is yes.
Contempt proceedings are a relic of a bygone age and not generally invoked in modern democracies.
Sadly, India remains very poor. The great mass of its people have a standard of living which obtained in 'modern democracies' only in a bygone age. What is a relic in one country, may be a way of life for hundreds of millions in a much poorer country.
India has an unusually activist- indeed hyper-active- Supreme Court by the standards of 'modern democracies'. Why is this? The answer is because India is very very poor. The Bench was seen as the last, but is often also the first, line of defence for people who were on the brink of starvation.
India also has a lot of very poorly educated lawyers. Even in the Supreme Court we see barely literate affidavits. Some High Court Judges have attracted ridicule for their bizarre vocabulary and ignorance of grammar. There may have been a time when there were similarly ignorant members of the legal fraternity in advanced democracies. But, at least at the level of the Supreme Court- which, I should mention, was created in Britain only about a dozen years ago- this is not at all the case. You would have to go far back in time to find anything similar.
Lately, there has been a surge in the use of contempt power in India; it is an exception to the freedom of speech. Former Supreme Court judge Markandey Katju was asked to explain his criticism of the judiciary. Lawyer Prashant Bhushan was in the contempt loop over his tweets regarding the appointment of the CBI’s acting director. The Attorney General now wants to withdraw contempt proceedings. Several eminent public men want to intervene in this matter because contempt power is not to be used to discipline the lawyers.
What is to be used to discipline them? That is the question. Disbarment may be felt to be too severe a penalty. Fines are derisory. Suspension may cause hardship to clients. Perhaps the best solution is to let them pay for protection from those who may want to beat them.
If a lawyer can say named Judges are destroying Democracy and acting unconstitutionally as a matter or protected speech, why prevent him for adding references not just to political orientation but to other things like religion and caste and region? Why shouldn't everybody just say anything they like? There may be much violence but ultimately people in one neighborhood will know they can safely blackguard those of a different community who are too cowed to retaliate.
Faizan Mustafa then mentions another type of case- one involving a publisher.
Shillong Times Editor Patricia Mukhim and publisher Shobha Chaudhry were found guilty of contempt by the Meghalaya High Court despite their apology. They were ordered to sit in the corner till the rising of the court and fined Rs 2 lakh each, failing which they were to serve a sentence of simple imprisonment for six months, besides a ban on the paper.
So, if a publisher is guilty of contempt, he faces a severe penalty. Should he escape this if he is also a lawyer?
The Supreme Court stayed this order on Friday.
The contempt power was used over a news report carried by the Shillong Times titled ‘When judges judge for themselves’. It began with former Chief Justice of Meghalaya High Court Uma Nath Singh and former Justice TNK Singh’s order of January 7, 2016, in which Z security was to be provided to the former judges.
Why? There is a terrorist threat in that State.
It went on to say that similarly, Justice SR Sen, who is set to retire, has ordered providing several facilities not only to retired judges, but also to their spouses and children. In addition to medical facilities, the controversial order stressed the need for providing protocol, guest houses, domestic help, mobile/internet charges at the rate of Rs 10,000 and a mobile phone for Rs 80,000 for judges. It was found that the news report was not based on facts and was intended to scandalise the High Court. The caption was found malicious and contemptuous. Mukhim was also alleged to have made insulting comments against the court on social media.
So, the offense is similar to that of Bhushan.
It seems the actual facts were that the Meghalaya government had withdrawn protocol service from the retired judges and their family members without consulting the High Court. Subsequently, the Chief Justice called a meeting of the Chief Secretary and other senior bureaucrats, seeking their explanation on this withdrawal, but they could not give a satisfactory answer. They were asked to restore these benefits, but when this did not happen even after a lapse of two months and some judges faced difficulties, the High Court initiated suo motu proceedings. Since the government kept mum and did not restore the benefits, contempt proceedings were initiated against the Chief Secretary, Law Secretary, Commissioner and Secretary, General Administration Department (GAD), Shillong. The court came down heavily on the journalists as their report had attributed motives to Justice Sen though the cases are allotted by the Chief Justice, who is the master of the roster. By the way, the Chief Justice was the other judge on this Bench.
If Judges can't use contempt proceedings against officers of their own court, why should they be allowed to do so against other Government servants? If, as is alleged by Bhushan, Judges are destroying democracy why should anybody be subject to the contempt proceedings they initiate?
Justice Sen was recently in the news for desiring that India be declared a Hindu rashtra. In his judgment, he has praised Prime Minister Narendra Modi and advocated passage of the controversial Citizenship Bill.
So what? No doubt this too is 'free expression'. Why be so thin skinned about his views?
Ideally, judges should never be oversensitive to public criticism.
Nor should we be oversensitive to anything they may care to say. Let us agree to consider each other as worthless lying scumbags as a matter of principle.
Bona fide criticism should be welcomed and appreciated because it opens the doors to introspection. Lord Atkin, in Ambard vs Attorney General of Trinidad and Tobago (1936), rightly said that “the path of criticism is a public way: the wrong-headed are permitted to err therein; provided the members of the public abstain from imputing improper motives… Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
We have long quit the realm of 'respectful' comment. What we have is open warfare of a partisan sort.
In 2006, the then UPA government brought in the long overdue amendment to the Contempt of Courts Act (1971), which now provides ‘truth’ as defence, provided it is bona fide and in public interest. A fair comment on the merits of a judgment is not contempt. Attributing improper motive to a judge or scurrilous abuse of judge will amount to scandalising the court and thus amount to contempt.
This is what has happened in the present case- unless the Bench has knowledge that there really has been a plot to do what Bhushan says has been done. But, in that case, the Judiciary should be scrapped! It is not fit for purpose!
The contempt law is problematic as the judge himself acts as prosecutor and victim and starts with the presumption of guilt rather than innocence, and in his discretion decides punishment. British judge Lord Denning, in Metropolitan Police Commissioner (1969), rightly observed that contempt “jurisdiction undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us.”
Five years later, Rudy Narayan- one of the few coloured barristers- faced a disciplinary hearing for saying what everyone knew to be true- Judges were racist. Thankfully British Society was changing. Still, as the political weather-vane shifted, a few years later he was reprimanded for discourtesy to a Judge. Ultimately he was disbarred for drawing attention to a custodial death. You see, Black Lives didn't matter much back then. Faizan Mustafa takes a different view. India should follow those judges whom Rudy Narayan described as racist.
Let Indian judges follow this greatest judge of the 20th century and demonstrate their compassion and large-heartedness in dealing with contempt cases so that the dignity of courts rises in the hearts of the people.
This leaves the problem of lawyers and those who write on legal matters. Should they be allowed to scandalize the Court to their heart's content? Surely that would cause the dignity of courts to fall in the hearts of the people?
Why shouldn't Judges and lawyers and everybody else express their view that certain Judges of a certain tendency- I mean nothing communal, of course- are sodomizing stray dogs in the street as part of Black Magic Rituals to bring about the complete collapse of Democracy and Secularism and all Human Rights save that of free expression?
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