Contempt power - I

By V. R. Krishna Iyer

A VAGARIOUS branch of judicial jurisprudence, popularly known as contempt power, of ancient British vintage and regal mintage, has incarnated as part of the corpus juris of free India, with some constitutional sanction. But how has this intriguing infiltration been rendered possible into countries where no crown reigns nor palace rules, and yet is allowed to invade people's freedoms and intimidate democratic activists, sans constitutional parameters and regulatory correctives in the curial pharmacopoeia. How true, in this curious context, is Disraeli's remark that ``colonies do not cease to be colonies because they are independent''! Is the key of Indian Contempt Law kept in London? Does our hope of full- blown free speech and other liberties, barricaded from contempt terrorism, judicial or parliamentary, lie in some noble Lord Denning or Justice Hugo Black or liberal Privileges Committee in Westminster or its counterparts in Yankee country? Our great tryst with majestic destiny when We, the People of India, became free remains partly unredeemed and leaves us saluting the jurisprudential Union Jack. Native foundations for fundamental freedoms must be laid, unfettered by simian imitation of trans- Atlantic tribunals and Legislatures. No nation will collapse nor be drowned in lawless injustice merely because of the abolition of the absolutist authority of the Judicature and the Houses to punish intemperate criticism, degrading indignity or crass contumacy of these high institutions of law and law-making. It is good to know that the legal literature of the common law is replete with references to contempt power. But outside this jurisdiction it is regarded not only as unnecessary, but violative of basic philosophical approaches to the relations between government bodies and people. Neither Latin American nor European civil law legal systems use any device of the nature or proportions of our contempt power. While critics of these systems may make preferential comparisons, so long as these countries keep well within anarchy on the one hand and totalitarianism on the other, there is room to question whether indeed this power is as necessary and essential as our decision-makers suggest.

Free speech is a fundamental right; so too free access to justice. To strangle both these freedoms because the courts are allergic to what they regard as savage criticism is to foster judicial tyranny or tantrum. Parliamentary privileges and immunities are a third basic grace sanctioned by the Constitution, geared to the fearless defense of the people's democratic rights by parliamentarians. To ban criticism of Legislators when one observes their pandemonic performance or berserk behaviour is bedlam law. Hermeneutic harmony governs the content and contours of contempt power so as to reconcile it with fundamental rights. Why? Because this trinity of values is a trust for the people and tryst by the people. Whatever power springs from the Founding Deed must ultimately be accountable to the people since they are the final nidus. contempt power must, in fairness, respect other great rights of the people.

Freedom of opinion and expression includes freedom to seek, receive and impart information and ideas through any media. All these are part of and covered by the Universal Declaration of Human Rights (Art. 19) reaffirmed by Art. 19 of the International Covenant on Civil and Political Rights ratified by India in 1977. No quotational rhetoric is needed to uphold the singular paramountcy of this branch of global Jurisprudence. Great American judges have been emphatic about it. Hugo Black has gone to the extent of stating: ``My view is, without deviation, without exception, without any ifs, buts or whereas is, that freedom of speech means that you shall not do something to people either for the views they express, or the words they speak or write.'' The great Justice Holmes likewise explained the philosophy of free speech in an eloquent observation:

``But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market; and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.''

In sum, contempt justice has a punitive place but consistently with the comity of the other great rights. Indian Courts exercising contempt power have sometimes been unjustly harsh and zigzag but on several other occasions have generally been generous and expanded the semantic sweep of freedom of expression and held high its value. Right to Information has also been judicially blessed as basic. A dynamic modus vivendi has been attempted by Indian Courts. In Mulgaokar's case (1978 SC 727) in a separate judgment I had laid down guidelines regarding the use of contempt power and this has been referred to approvingly in Shiv Sanker's case. (1988 SC 1208) Chief Justice Savyasachi Mukherjee observed:

``Krishna Iyer, J. in his judgment observed that the court should act with seriousness and severity where justice is jeopardised by a gross and/ or unfounded attack on the judges, where the attack was calculated to obstruct or destroy the judicial process. The court must harmonise the constitutional values of free criticism, and the need for a fearless curial process and its presiding functionary, the judge. To criticise a judge fairly, albeit fiercely, is no crime but a necessary right. Where freedom of expression subserves public interest in reasonable measure, public justice cannot gag it or manacle it. The court must avoid confusion between personal protection of a libeled judge and prevention of obstruction of public justice and the community's confidence in that great process. The former is not contempt but latter is, although overlapping spaces abound. The fourth functional canon is that the Fourth Estate should be given free play within responsible limits even when the focus of its critical attention is the court, including the higher court. The fifth normative guideline for the judges to observe is not to be hypersensitive even where distortions and criticisms overstep the limits, but to deflate vulgar denunciation by dignified bearing, and the sixth consideration is that if the court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its sources and stream.''

Never forget the contempt law does not make a limpet or lapdog of judges but every citizen has the right to lash a judge with his pen or tongue if he is vicious or obnoxious on the Bench or corrupt for his culpable deviances. Silence is guilt when there is a duty to speak. Indeed, Justice Savyasachi cites Justice Brennan (U.S. SC) to say that it is a prized privilege to speak one's mind, although not always with perfect good tastes on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.

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