PUCL Bulletin, April 2001
Law and Human Rights
By K.G. Kannabiran
It was the Madras Bar Association, way back in 1960 or so, that challenged the efforts of C. Subramaniam, at that time a Minister in the Madras Government, to fast forward the career of Alagiriswamy. He was asked to resign his position as chief judge, city civil court and was appointed Government Pleader immediately thereafter. This was to clear the ground for his judgeship. This effort of C. Subramaniam was fiercely contested in the High Court by way of a writ petition. This petition was dismissed as not maintainable, but not without a strong criticism of the devices adopted by the Minister and his Government to push their candidate. The rest is history.
The question of the true age of S. Ramachandra Iyer surfaced as a major issue in 1960 after he became Chief Justice of the Court. It was then believed that he had a fair chance of being called to the Supreme Court. The declaration of his age was found to be not true when his younger brother sent out invitations for celebrating the completion of his 60th year. He was known to be a competent judge, but competence and ability are not synonyms for ethical or moral conduct. Nor the presence of ability and competence assure also the presence of ethical conduct in the discharge of duties. It became the unenviable task of the then Chief Justice of India, P. B. Gajendragadkar, to ease him out of the position without much damage to the Institution. Really age has nothing to do with a person functioning as a judge. Nor has it anything to do with the administration of justice. But once an age of entry and exit is fixed misrepresentation of age becomes unethical and continuation on such representation does affect the administration of justice, not because he is past the age but because he misrepresented to extend his tenure.
By the time we arrive into the era of Mr. V. Ramaswamy, again from the Madras High Court. The misdemeanors of this judge while in office led to his impeachment. And we realised that the arteries of all the institutions have hardened and the periodical exercises in elections may at best recycle the decadent and the criminal in different permutations and combinations. The judiciary does not suffer from such exercises in renewal periodically. When the issue of integrity of judges became an issue of partisan debate in the impeachment proceedings the possibility of restructuring and reforming the judiciary receded into the distant horizon.
The history of these institutions has always been one of degeneration mainly because these are perceived as one of position and authority. With perquisites and other more than comforting facilities these positions offer the promise of a sybaritic life comparable only to decadent Rome. Pomp to overawe people and power to subjugate criticism is all that is required to run these institutions. The Courts structured as they are provide the pomp and the contempt jurisdiction, a facet of the divine right theory of the Stuart Monarch, in its unadulterated arbitrariness continued in its pristine state to regulate the matters governing the institution.
But then how does one discipline this institution, and how does one correct the unbecoming conduct of an individual judge was the problem worrying many and Mr. Sundaram an advocate practising in Chennai voiced it. The theory of inherent power (quite entrenched, I should say) cannot defeat the people's interest in the administration of justice. If we continue the myth about the court's inherent power it does really put a premium on unbecoming conduct going unchecked. As it is, a contempt proceeding very closely resembles one of those Catholic or the Calvinist inquisitions and the opportunity given to the contemnor is to apologise and not vindicate. There have been judges who make incorrect declarations regarding their age. There have been Judges who anticipating that they are likely "to be called" to the Bench take steps to alter their age by the simple device of a civil suit for correcting his age. Very often nobody takes notice of such harmless misdemeanors, as incorrect declaration of age, as these do not disturb the even tenor of aggradisement of the lawyers. Normally, whatever the provocation, for very professional reasons he would like a judge to be always in good humour.
After the advent of public interest litigation and the emergence of judicial activism the discourse in the court found the judges taking very moralistic positions and postures leading very often to undeserved strictures against the government and its officers and their own officers of courts, viz., the advocates. With corruption all around judicial activism created a make believe of an institution staffed by persons of impeccable rectitude. It is in fact not the judges' fault. Only a judge of a very high moral rectitude may maintain this moralistic tenor. There have been such legends, but no longer. Such a judge does not need security and contempt power. Rectitude in life style and in the discharge of the obligations attached to the position they hold appears to be a mandatory requirement. No explanation is acceptable for the absence of rectitude. There are certain other lessons from Sundaram.
Two earlier cases referred to in the judgment are against persons who made similar accusations against judges. These cases were in the year 1996. Does it not indicate that this signals the necessity for sincere collective reappraisal working of courts and an introspection of the life style of the judge and his/her work as a judge? Accusation of false age is not the issue. Sundaram raises quite a few questions and one of these is applicability of Article 14. Sundaram sets down in his affidavit that the material furnished by Ram Jethmalani in his book "Big Ego Small Men" disputes the age declaration. In which case, should not the Court proceed against Ram Jethmalani for contempt? He released the book in a press conference and reiterated the charge regarding the declaration of age. Could courts while exercising suo motu powers make such invidious discrimination? Does not such exercise of powers violative of Article 14. Or can the court claim total immunity from the application of Fundamental Rights Chapter? The Court did refer to what was published in The Hindu dated 3-11-2000 but would not take on Mr. Jethmalani for Contempt. For the discerning public the inferences are obvious. Sundaram also raises the question of redefining contempt power as also the issue of human rights in context of contempt jurisdiction.
In contempt proceedings there are two contending claims on the societal interests in the administration of justice. Sundaram or any other person becomes a contemnor whenever he raises the issue of administration of justice. This may be with reference to the conduct of an individual judge or with reference to the manner in which a proceeding was conducted. The court also claims that in the interests of administration of justice it is using contempt powers but in reality very often it is used as a shield to defend itself. In this competing claims between the citizen and courts the citizen always loses. The derisive discourse in ) the proceeding leaves one with the feeling that the institution is staffed with persons who are breastfed in authoritarian tradition 'and therefore do not want to read down the powers of contempt to bring it in tune with fundamental rights, values incorporated into the Constitution and in accordance with human rights as they evolved from the declaration onwards.
This arbitrary nature of power of contempt has been worrying the British also. It was felt that the offence of contempt for scandalising the court is too broad in its sweep and therefore very uncertain. Can this uncertainty be justified under the European Covenant on Human Rights even if the trial complies with the procedure prescribed by law? Does the procedure prescribed satisfy the test laid down in Maneka Gandhi's case in this country? The Canadian Court felt that the Contempt law is highly disproportionate to any legitimate purpose it might serve. The Phillimoremore committee in its report on Contempt of Court considered abolition of the offence of scandalising court, but ultimately settled for narrowly defining the offence.
The committee felt that the contempt of law should not be invoked against people who criticise judges or publish vituperative statements unless they create risk of serious prejudice to some particular, identifiable proceedings. David Feldman is of the view that the implementation of the suggestion would bring contempt law back in line with the Convention's requirements. It would ensure that criminal sanctions could be imposed only where they would be proportionate to the legitimate objective of maintaining the authority of the judiciary. The Committee recommended that there should be a new statutory offence of publishing material which imputes improper or corrupt behaviour to judges.
They suggested a defence by the contemnor if the allegation is both true and for public benefit. Such a defence would be needed if the interference with freedom of expression were to be proportionate to a legitimate aim in a democratic society, as required under Article 10(2) of the European Human Rights Convention, which provides for restraint on the freedom of expression. it is subject to penalties as are prescribed by law and as are necessary in a democratic society and for maintaining the authority and impartiality of the judiciary. It is in the context of this clause that suggestions were made that scandalising courts as an offence should be abolished, or should be read down so as to eliminate arbitrariness and make the procedure fair and the definition certain. If it is realised that administration of justice is an abiding concern of the people and courts are their institutions and instrument for bringing about an improvement in the quality and content of their lives, it, may not lead to silencing of criticism. But then it is so comforting to live with myths and mystification !
(The writer is National President of the People's Union of Civil Liberties).
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