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
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