PUCL Bulletin, March 2002

Justice Iyer and Contempt of Court
By K.G. Kannabiran

If at all there has been a judge who was able to think in terms of the constitutional philosophy, it is Justice Krishna Iyer. He was a great advocate of social transformation. For him social transformation is possible by good governance and by the latter he meant enforcing Directive Principles of State Policy. For him Rule of Law is at the core of the programme to realize the Constitutional dream. Such a person can never be guilty of impropriety towards administration of justice. Precisely this person is reported to be facing contempt prosecution. What is the contempt he is said to have committed? Gopalakrishnan is one of the contemnors in respect of a publication in Mathrubhumi a Kerala Daily, relating to some hooch tragedy. He was involved in a road accident and was admitted into a hospital with a spinal injury .The notice of contempt was served on him and had to appear in that condition in the court. He was carried in that condition to the court on a stretcher. Reacting to this news Justice Iyer wrote to the concerned judge, "I am unhappy at the developments consequent on Mathrubhumi editor's presence in court in a stretcher. I am unhappy at the theatricality of the episode. Personally speaking I hold you in high respect and as a man of moderation. As a judge you have not been given to excess in exercise of authority…" A letter addressed to the judge about a matter pending before the judge referring to the manner in which the contemnor was brought to the court and the words "theatricality of the episode" to the sitting judge are said to be contumacious.

On 1st December Indian Express reports that a Division Bench of the Kerala High Court has suo motu initiated proceedings for contempt against Justice Iyer, Justice Balakrishna Eradi and some others on the basis of some statements made by them and published in Mathrubhumi touching upon the contempt proceedings pending before the Court. The counsel appointed to assist the court moved for contempt against added some more to the list and among them are a member of the State Human Rights Commission and that fine Journalist T.J.S. George and N. Ram of Frontline among others. Though contempt of court has its Star Chamber origin, one never thought Indian court would manage to reproduce its absolutist form prevailing during the Stuart Rule now.

Very often criticism of the conduct of a judge or palpably insufferable orders made by him, is not made with a view to diminishing the institution in public gaze but to enhance the prestige of the institution by criticizing the erring judge. The adage that a judge can decide wrongly or rightly never meant that the judge has the privilege to defiantly err. It only a recognizes the limitation that a judge is fallible like everybody around and a realization of this fact should impart to him a sense of sobriety in his conduct as a judge. This power is traced to the sovereign (the king) and it is spoken of as an aspect of Royal power. In this country this myth making is blown out of all proportion by the very institution, which claims this power and under a Constitution. The institution adjudicates its own power and the rhetoric by which it justifies its necessity is profoundly inane. This is one power, which is totally out of tune with our constitutional system and democracy. This power is no exception to Lord Acton's profound admonition to power wielders.

Whatever may be the rhetoric and platitudes uttered in seminar halls on the question of "contempt jurisdiction of the courts" when issues come before them in courts the conduct of the judge, or the wholly unjustified order he passed are quarantined in the debate and by a process of legal legerdemain transform the criticism of a judge into an accusation against the institution. And the contemnor punished.

Manifestation of judicial tyranny has become too frequent to be ignored. We have seen that very often this power is used as a shield to ward off ) serious charges of misbehavior and the complainant pitifully standing as accused before the court while his counsel cravenly tendering apology to the court and genuflecting for a reprieve. Unfortunately this major assault on free speech and expression did not receive the attention it deserves. In fact it calls for a national debate leading to pruning the powers of this institution by making it more responsible and accountable. In fact by initiating contempt proceeding against these persons they have considerably diminished respect for the institution and the constitutional position they are holding. As a device of executing orders there may be necessity to confine the contempt powers to enforce orders passed in writ and other proceedings against the government and other instrumentalities of the state. The Supreme Court shoulders this responsibility, if it is to avoid legislative inroads into its independence. An over-subservient Bar is our greatest misfortune. A genuflecting profession inebriates power.

We have been carrying this colonial baggage knowing full well that the Constitution brought about a severance with the past; between the purposes of a colonial administration and the struggle for Independence and the vision and value system it provided us with. The most important institutions of a democracy are tethered to the colonial past the privileges of the representative institutions of the State and the Center and the contempt jurisdictions of the Courts. This will be an opportunity to raise the issue at a national level and bring about the long delayed severance from our colonial past.

Racially though we had no affinity to the British and though politically we were antagonistic and waged a prolonged struggle for liberation we have adapted their repressive and undemocratic system for governing the people. American History was otherwise. Their break with the British was complete. Their judges were fully well versed in what democracy is all about. And what is meant by Independence. The American Supreme Court in Bridges vs. California (1941) had occasion to deal with contempt jurisdiction of the American courts. Restraint on free speech by the threat of contempt proceedings is based on common law practice and not on account of any prior legislative deliberation. They refused to allow the common law tradition to throttle free speech. They rejected the argument that the power of judges to punish by contempt out-of-court publications tending "to obstruct orderly and fair administration of justice in a pending case" was a part of English common law at the time the Constitution was adopted. The Court followed it up by saying " one of the objects of the Revolution was to get rid of English Common Law on liberty of speech and of the press" The Court quoted Madison who said "the state of the press. ...under the common law, cannot be the standard of its freedom in the United States." We could have had a similar stand with more justification.
This ground has nothing to do with the character of the First Amendment or its unqualified sweep. The other reasons of Hugo Black's opinion of the court are internal to the contempt proceedings. Repelling the argument that comment on pending proceedings amounted to disrespect to the judiciary Justice Black pointed out, "The assumption that respect for the judiciary can be won by shielding judges from public 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." Public Interest in Administration of Justice has literally banned free speech and expression on matters pertaining to the performance of courts.

The duration of censorship depends on the pendency of the case. It is always presumed that Public interest in the administration of justice supercedes all public debates on pending cases when such focused debate is called for. In response to a contempt notice and direction of the court a contemnor who is disabled by injury and hospitalized was produced on a stretcher. If this act is done by the police it can be subjected to criticism and not if the court does it under its contempt power! Is there any objective standard to assess what type of criticism calls for contempt proceedings. Is judging judges and the quality of the administration of justice excluded from right to free speech and expression. Does the myth of a court of record amount to reasonable restraint and does this myth qualify for being called a law in relation contempt power? All these need renewed debate and a fresh look

Home | Index