Friday, February 09, 2007

Justice Katju on the need to reform current judicial attitudes (and the law) relating to Contempt of Courts

Justice Markandey Katju, who was recently appointed to the Supreme Court, appears to be a representative of a rare species of higher court judges in contemporary India, who actually agree that the Supreme Court's approach to contempt of court cases is in dire need of reform.

Outlook has published the full text of a public lecture he delivered recently, where he reiterates his position, which is one that he has advanced for some time now. This latest articulation of his position seems a bit too heavily reliant on judicial rulings and personal views of English judges and lawyers on the need for a tolerant contempt of court jurisprudence. Given that the English judiciary bears very little resemblance today to the Indian Supreme court, which has far exceeded the former both in powers and the jurisdiction it exercises in deeply political issues, one would have expected arguments grounded in current Indian realities. But, what is exceptional is not the content of the argument itself, but the fact that a Supreme Court justice is making the case for change. The full text of the speech is available here.

Justice's Katju's main argument is as follows:

"I submit that the law of contempt of court can be made certain once it is accepted that the purpose of the contempt power is not to vindicate or uphold the majesty and dignity of the court (for it is automatically vindicated and upheld by the proper conduct of the Judge, not by threats of using the contempt power) but only to enable the court to function. The contempt power should only be used in a rare and very exceptional situation where without using it, it becomes impossible or extremely difficult for the court to function.In such rare and exceptional situations, too, the contempt power should not be used if the mere threat to use it suffices."

Update: In the comments section of this post, V. Venkatesan sets out his position on the issue of contempt of the judiciary. Here is his view on Justice Katju’s position:

“Justice Katju has referred to the latest amendment of the Contempt of Courts Act, and has endorsed it. But to many of us who have been arguing for greater accommodation on the part of the judiciary, the latest amendment is just a sham. It says: 'The Courts may permit....". The point is that the Courts have not done so in many of the cases that came before it, even though the Act so far was silent on whether truth could be a defence. And if Nariman's lecture is any indication, the Supreme Court in fact misinterpreted an earlier judgment to suggest that it had ruled that truth could not be a defence in contempt proceedings. Ambiguity on this issue, therefore, led the Court to refer the question to a Constitution Bench, which has not yet heard the case.

I have often wondered what is the purpose of this amendment. If the objective is to bind the judiciary to accept truth as a defence, then the word 'shall' must have been used instead of 'may'. Secondly, is it not too much to expect a Judge to be "satisfied" that justification by truth is in public interest and the request for invoking the said defence is bona fide? What if the perceptions of contemner and the Judge differ on this issue? In other words, will a probable contemner take the risk (even if she is fully convinced that truth could be invoked as a defence in the case), if the Judge has the veto to reject the claim at the threshold stage?”

I am grateful for this intervention. The purpose of the original post was to highlight the fact that some judges also appreciate what seems to be a fairly obvious point for many commentators: that current approaches to contempt of court law in India are deeply problematic. In the post, I did not set out my own view, which I will lay out briefly here.

Essentially, I agree with V. Venkatesan’s clearly set our view. My view, if anything, is more radical. I find it particularly ironic that the institution which is going about setting out norms of accountability and transparency for every other institution in India, is simultaneously pursuing such a patently self-serving attitude on crucial issues relating to its own accountability, such as judicial appointments and contempt powers. I say ‘ironic’ but I don’t find it surprising – this sort of institutionally self-serving behaviour is not peculiar to either the judiciary (within India) or to the Indian judiciary (when viewed comparatively). What is surprising to me is that in India, this is done with such lack of sophistication, leading to the obvious charge of hypocrisy. Such lack of sophistication may be generated because the Court in India is by now accustomed to getting away with a degree of judicial bravado and recklessness which would be unacceptable in most representative democracies, but is made possible in India because of the high degree of political fragmentation that has weakened the executive and legislature over the last two decades.

Across the commonwealth, judiciaries have been acting increasingly aggressively in recent years, which has led to a great deal of discussion among scholars about the “judicialisation of politics” globally. Yet, while speaking the language of 'democracy' 'rule of law' and 'transparency', these judiciaries have nevertheless sustained the validity of the antiquated offence of ‘scandalising the court.’ In recent years, the South African Constitutional Court has issued judgments of such a scale and ramifications that it can lay claim to being, alongside the Indian Supreme Court, “the world’s most powerful court.” Yet, even that court, in a 2001 ruling in the Mamabolo case, upheld the constitutional validity of the criminal offence of 'scandalising the court'. Part of its justification was that courts in “England and Wales, Canada, India, Australia, New Zealand, Mauritius, Hong Kong, Zimbabwe and Namibia” had done so.

If there is an example to be followed from comparative law, I believe it is that of the American judiciary. As early as in 1941, the U.S. Supreme Court took a progressive step towards making the offence redundant in practice, by interpreting it in consonance with that court’s generally strong preference for the rights of speech and the press, and by refusing to find the alleged contemnor guilty in Bridges v. California. Justice Hugo Black’s following words are very appropriate for the current Indian situation, as well as for other common law judiciaries:

“The substantive evil here sought to be averted … appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice. 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.”

Following this line of reasoning, I would argue that the current approach towards contempt of court needs to be wholly revised, bearing in mind the problem with the traditional basis for such a jurisdiction that Justice Black's statement exposes. While I am fully aware of the problems of recommending the virtues of an American model in this day and age, I believe that on this issue, doing so would enable the Indian judiciary to reclaim the high moral ground that it is having trouble asserting when stories about the questionable behaviour of Justices Bhalla and Jain abound in the media. In the long run, allowing its own conduct to come under public scrutiny (as it has been insisting for every other institution in India) will add considerably to the stature (and powers) of the judiciary in India.

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