Sunday, April 29, 2012

CONTEMPT OF COURT -TRUTH CAN BE A GOOD DEFENCE


CONTEMPT OF COURT - TRUTH CAN BE A GOOD DEFENCE IF IT IS BONAFIDE AND IN THE PUBLIC INTEREST
By Dr. T Padma., LLM., Ph D
kethepadma@gmail.com
“Truth, purity, and unselfishness - wherever these are present, there is no power below or above the sun to crush the possessor thereof. Equipped with these, one individual is able to face the whole universe in opposition”
 –Swami Vivekanada
BACKGROUND                                                                         
Contempt of court is a court order which, in the context of a court trial or hearing, declares a person or organization to have disobeyed or been disrespectful of the court's authority. Often referred to simply as "contempt", such as a person "held in contempt", it is the judge's strongest power to impose sanctions for acts which disrupt the court's normal process.

A finding of contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behavior, or publication of material deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court. Judges in common law systems usually have more extensive power to declare someone in contempt than judges in civil law systems.

In civil cases involving disputes between private citizens, the behavior resulting in the ruling is often directed at one of the parties involved rather than at the court directly.

A person found in contempt of court is called a "contemnor." To prove contempt, the prosecutor or complainant must prove the four elements of contempt:

(a)  Existence of a lawful order
(b)  The contemnor's knowledge of the order
(c)   The contemnor's ability to comply
(d)  The contemnor's failure to comply

The jurisdiction to punish for contempt touches upon two important fundamental rights of the citizens, namely, the right to personal liberty and the right to freedom of expression. The basic principle in a democracy is that the people are supreme. It follows that all authorities - whether judges, legislators, Ministers, bureaucrats - are servants of the people. Once this concept of popular sovereignty is kept firmly in mind, it becomes obvious that the people are the masters and all authorities (including the courts) are their servants. Surely, the master has the right to criticise the servant if the servant does not act or behave properly.

INDIAN CONTEXT

 Article 19(1)(a) of the Constitution of India gives the right of freedom of speech and expression to all citizens. Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish people for their respective contempt. Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to punish contempts of its subordinate courts. Power to punish for contempt of court under Articles 129 and 215 is not subject to Article 19(1)(a).

Contempt of court is a concept which is a legacy of Anglo-Saxon jurisprudence. Continental jurisprudence is unaware of it. Unlike the Continental legal system the Anglo-Saxon legal system has adopted the adversary system of adjudication which we too have accepted and adopted.  In these days of repeated executive onslaughts on the judiciary and the judicial system, it is absolutely necessary that the court should be armed with the power to commit a person for contempt of court or otherwise, a court will be helpless in the face of defiance of its orders by the executive, and with no other means of enforcing its orders.

One of the much misunderstood and controversial jurisdiction and powers of the courts is the power to punish for contempt of court.  The expression ‘contempt of court’ is an archaic expression whose use is both unfortunate and misleading. To modern liberal minds accustomed to think in terms of freedom of speech and expression, it gives the impression that courts are concerned about upholding the dignity of judges and protecting them from affront and insult.  Nothing can be farther from the truth.  In a proceeding for contempt of court, the court is only concerned with the actions of people who seek to sully, obstruct, or prevent the due administration of justice.  The court is concerned with protecting the right of the public that the administration of justice shall not be impeded.  In a democracy founded on the rule of law, public policy demands that nothing should be allowed to be done to undermine the system of fearless administration of justice by courts of law or to shake public confidence in it.  No democratic institution can flourish in an atmosphere of fear and suspicion

A court of law cannot function freely and fairly if it is to be thwarted in the discharge of its duties by contumacious and willful flouting or disobedience of its orders; or the parties that come before it seeking justice, the advocates that appear before it, or the court itself are to be subjected to threat and abuse. Contempt of court is no demon lurking in the background, ready to pounce upon an unwary citizen. Nor is it a sword of Damocles ready to pierce his skull. Contempt of court is an instrument which the people themselves have given the courts by recognizing and vesting such power in the Supreme Court and the high courts by Articles 129 and 215 respectively, and which the courts keep properly sheathed to be used rarely but only when public interest demands it.  Anyone who takes the trouble of examining the applications make to the courts to commit persons for contempt of court will at once realize that more than 99 per cent of such applications arise out of attempts to disobey, obstruct or defy judicial orders made under Article 226 or Article 32 of the Constitution and hardly ever to vindicate the personal honour or integrity of the judge. The protagonists of the demand for the abolition of the law of contempt of court little realize that under the existing procedures the only way a high court or the Supreme Court may secure compliance with its judgments or orders in writ proceedings under Article 226 or Article 32 of the Constitution is by seeking recourse to proceedings for contempt of court.  Even adjudication and execution may be rendered difficult or ineffective without the power to commit for contempt of court.  For example, if the records in the custody of a government official are necessary for the disposal of a writ petition and if the official refuses or evades production of those documents in court, the only way to compel him to produce them is to commit him for contempt of court.

 Broadly, civil contempt consists of disobedience of the orders of the court while criminal contempt consists of all other kinds of contempt such as scandalizing or lowering the authority of any court, prejudicing or interfering with the course of a judicial proceeding, and interfering or obstructing the administration of justice or tending to do so.  This is how civil contempt and criminal contempt are defined by Section 2 of the Indian Contempt of Courts Act, 1971.

CIVIL CONTEMPT

The Contempt of Courts Act of 1971 defines contempt of court. Civil contempt is a wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court [section 2(b)]. All practicing lawyers know how necessary it is that the court should have the power to commit for contempt to meet similar situations which arise daily in court.  This branch of contempt is known as civil contempt and there cannot be much controversy over the necessity of a court having power to commit for civil contempt.

CRIMINAL CONTEMPT

Criminal contempt has been defined vide sec 2(c) as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
(i)                Scandalises or tends to scandalise, or lowers or tends to lower the authority of,  any court, or
(ii)             Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii)           Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other manner.

TRIAL BY MEDIA

There should not be any controversy regarding interference with a judicial proceedings or the administration of justice constituting contempt of court. A judge cannot be threatened to give a particular judgment, a witness cannot be threatened to give evidence in a particular manner, or a party cannot be coerced into withdrawing its action.   But there may be, as indeed there are bound to be, cases which arouse tremendous public interest and inspire or provoke members of the public and the press to express freely their opinion on points of public interest.  Now, is it right that an issue before a court is tried and decided by the press and the public? On the contrary is it right that there should be any restriction on the freedom of the press to comment on all issues of importance? What is paramount-the right to freedom of expression which necessarily includes the freedom of the press or the right of a party to have its case decided by a court of competent jurisdiction without any extraneous pressure in whatever form?  The right to an unbiased trial,  as well as the right to freedom of expression are both rights which are capable of provoking emotion and rhetoric, naturally tending to cloud the basic public interest involved.  The first public interest involved is the right to be informed and to discuss. When matters of public importance are debated in courts it is futile to expect members of the public not to be agitated and not to discuss and debate such matters.  In a free and democratic society such debate and discussion must necessarily be pursued through the press.  It is necessary for the survival of democracy.

The other public interest involved, and equally necessary for the survival of democracy, is the independence of the judiciary.  The judiciary is to decide the cases that come up before them without fear or favour.  They are not to be led into deciding cases one way or the other by the pressure of the power of the press.  The question should ultimately resolve itself in each individual case to the question which interests of the public outweigh the other on the facts of the case.  The court should not refuse to balance the competing interests of the administration of justice on one hand and the right of the public to be informed on the other.

BMW hit-and-run case

The Supreme Court judgment in this case has thrown new light on the sting operations undertaken over the past decade by sections of the news media as a form of investigative journalism. It contains some significant statements on the functioning of the media, their responsibility to maintain professional standards by evolving a self-regulatory mechanism, and the larger issue of freedom of the press. The court made these remarks while upholding the conviction of the lawyer Anand by the Delhi High Court on a charge of contempt of court. The contempt charge arose when Anand, who was defending the accused in the BMW hit-and-run case, attempted to influence a key prosecution witness in favour of the accused, in the presence of the chief prosecution counsel and two others. In a sting operation, NDTV captured the negotiation scene on camera and telecast it. The bench commented “we do not have the slightest doubt that the authenticity and integrity of the sting recordings were never disputed or doubted by R.K. Anand.”  “He kept changing his stand in regard to the sting recordings. In the facts and circumstances of the case, therefore, there was no requirement of any formal proof of the recordings.” The bench further noted that the observations made in the judgment would help television channels in their future operations and programmes. The sting as a method of recording audio-visual evidence of wrongdoing in high places, which are not easily accessible, has come a long way since the Tehelka expose. With the phenomenal increase in the number of TV channels in the country in recent years and the growing popularity of sting operations, financially resourceful channels may find it attractive to resort to this form of journalism and deploy the most enterprising and adventurous among their journalists to do the job.

Critics of sting operations also complain of the impropriety of intruding into the privacy of the people, particularly in the absence of stringent laws in India. A legitimate question arises: How sacred is the privacy of a person whose private actions have a bearing on public welfare? Another ethical issue raised is that sting operations tempt if not force someone to commit a crime and encouraging law breaking is unacceptable. These objections cannot be dismissed as baseless, but they are not insurmountable in the long run. Some others call it a trial by the media.

The judgment gives the impression that a sting is not objectionable if it is done in genuine public interest and carried out with care strictly following norms. The bench said that the NDTV telecast had rendered valuable service to the important public cause of protecting and salvaging the purity of the course of justice and the operation could not be termed trial by media. It held that whatever the faults or weaknesses of the programme, it certainly did not interfere with or obstruct the due course of the BMW case trial. After all, the programme did show the people that a conspiracy was afoot to undermine the BMW trial. This conclusion will encourage all journalists who investigate wrongdoing or injustice boldly: “What was shown was proved to be substantially true and accurate. The programme was thus clearly intended to prevent the attempt to interfere with or obstruct the due course of the BMW trial.” The Supreme Court full-throatedly expressed itself against curbing sting operations. It also rejected a suggestion that the media take prior permission for conducting such operations on the grounds that it would amount to pre-censorship.

PROTECTION TO JUDGES

The importance of affording protection to judge was recognized by the constitution makers who while giving full freedom of speech to the members of Parliament provided in Article 121 of the Constitution that there should be no discussion in Parliament with reference to the conduct of any judge of the Supreme Court or of a high court in the discharge of his duties except upon a motion for presenting an address to the president praying for the removal of the judge.

Has the public no right to expose the conduct of a corrupt judge, one may wonder. A limited answer is suggested by Section 6 of the Contempt of Courts Act which saves statements made in good faith concerning the presiding officer of a subordinate court to a superior court.   Perhaps all statements made in good faith, but after bona fide enquiry and proper verification should be excepted.  A journal may publish a report about a corrupt or unfair judge but only after satisfying itself about the genuineness of the allegations.  But no one should be allowed to get away with scandalous allegations against a judge, saying later that he had heard rumours to that effect. 

CRITICISM OF JUDGMENT IS NOT CONTEMPT
Freedom of expression is non-negotiable except for the restraints specified in Article 19 of the Constitution. Contempt is one of them. While freedom of opinion and expression include the freedom to seek, receive and impart information through any media, this freedom cannot be used to paralyse the court process, scandalise the judges into submissive disgrace or result in direct action that would damage the independent working of the courts.
Chief Justice Potti propounded the concept of contempt jurisprudence with great wisdom, while deciding a contempt petition against Justice V.R. Krishna Iyer, who in a speech had criticised the functional shortcoming of the courts in India: “An erudite Judge illumines the pages of law reports. He earns the respect and admiration of the members of the bar and the bench. The legal fraternity may remember him as his reputation survives to posterity. But rarely is such a Judge widely known outside the world of law...V.R. Krishna Iyer is known and respected by the public of this country. His tenure of office as a Judge of this Court, later as a member of the Law Commission and finally as a Judge of the Supreme Court has been marked by a distinction that singles him out from the rest of his colleagues. His decisions evince a new approach to law and new role for the Judge. Many a good Judge has come and gone having performed his duty with dedication and integrity, as good Judges are expected to do, leaving a mark of his own and an imprint of his individuality but giving no room for anyone to raise his eyebrows at him at any time on account of infringement of traditional behavior and infringing states decorum. While leaving a distinct mark of his personality in all that he did Sri V. R. Krishna Iyer did challenge established traditional values and approaches and opened new vistas of thought and action to promote the social engineering process in this country”.
Justice Potti so beautifully welcomed the constructive criticism of the judiciary by Justice V. R. Krishna Iyer and amply indicated, in the process, that objective criticism must be encouraged. He was not alone in this Justice Frankfurter once said “the need is great that court is criticised, but just as great that they will be allowed do this duty”.
Free speech is a fundamental right, so too free access to justice. To strangle both these freedoms because courts are allergic to any kind of criticism will be nothing but judicial totalitarianism.
India and England have produced a long list of outstanding judges. They have not only welcomed objective criticism but also encouraged the same. The common law is entirely a product of their intellect and contains some of the most elegant expressions of thought to be found in the literature of the world.
In Arundhati Roy matter, the Supreme Court - by pronouncing the symbolic punishment of a day’s sentence to Roy, made it clear in unequivocal terms that it is not averse to the fair criticism as long as it is done in good faith and in public interest: “Fair criticism of the conduct of a Judge, the institution of the judiciary and its functioning may not amount to contempt if it is made in good faith and in public interest. To ascertain the good faith and the public interest, the Courts have to see all the surrounding circumstance including the person responsible for comments, his knowledge in the field regarding which the comments are made and the intended purpose sought to be achieved. All citizens cannot be permitted to comment upon the conduct of the Courts in the name of fair criticism which, if not checked, would destroy the institution itself.”
There is a well-know story of a judge of the American Supreme Court who when asked by the Court as to why he did not take action against a litigant who shouted ‘Nine old fools’ when the Court pronounced judgment against him said ‘There is no question that all the nine of us are old men and whether we are fools or not is a matter of opinion’.

SOME OTHER INTERESTING CASES

Sardar Sarovar Case

In another interesting case,Arundhati Roy, a renowned writer of repute, along with several others look part in a demonstration at the gates of the Supreme Court as part of the Narmada Bachao Andolan protesting against the judgment of the Court in the case of Narmada Bachao Andolan v. UOI by which the Court permitted to increase the height of the dam in question to the reduced level (RL) of 85 metres. The Court issued notices to Arundhati Roy and others to show cause why they should not be committed for contempt of court.  In the counter-affidavit filed by Arundhati Roy, she said that while the Supreme Court was not prepared to spare a judge to enquire into the Tehelka scandal, a matter of great public importance, the Court was ready and willing to issue a notice to her and others to show cause why they should not be committed for contempt on flimsy grounds which did not persuade even the local police station as sufficient to pursue any action against them.  The court which appeared to be upset by the counter-affidavit of Arundhati Roy, issued a fresh notice of contempt of court against her in regard to the statements made in the counter affidavit.  In response to the second notice of contempt, Arundhati Roy filed a counter-affidavit reaffirming what she had said in her original counter- affidavit, and added:

I believe the people of the Narmada Valley have the Constitutional right to peacefully protest against what they consider an unjust and unfair judgment.  As for myself, I have every right to participate in any peaceful protest meeting that I choose to.  Even outside the gates of the Supreme Court.  As a writer I am fully entitled to put forward my views, my reasons and arguments for why I believes that the judgment in the Sardar Sarovar case is flawed and unjust and violates human rights of Indian citizens.  I have the right to use all my skills and abilities such as they are, and all the facts and figures at my disposal, to persuade people to my point of view.  I wish to reaffirm that as a writer I have the right to state my opinions and beliefs.  As a free citizen of India I have the right to be part of any peaceful dharna, demonstration or protest march.  I have the right to criticize any judgment of any Court that I believe to be unjust.  I have the right to make common cause with those I agree with.

Her statement was clearly the indignant outburst of a tortured soul who thought that the action of the executive government in ordering the construction of the Sardar Sarovar Dam and further raising its height would victimize and render helpless and homeless thousands of persons who had lived and labored in the valley.  She raised her protesting voice against what she felt was a thoughtless act of the executive government and against the action of the Court in issuing notice for contempt of court for staging a demonstration near the gates of the Court. She appears to have thought that the issuance of notice for contempt of court was an act which would have the effect of denying the right to freedom of expression guaranteed by the constitution.  She thought she was entitled to exercise her right to freedom of expression which included even the right to criticize a court and its orders.  The Court however, felt that she had exceeded the right of fair criticism of its orders and was, therefore, guilty of contempt of court.  . 

Mohd Iqbal Kanday v Abdul Majid Rather

In another case Mohd Iqbal kanday v Abdul Majid Rather, where the high court made an order which was unworkable and difficult to execute and the high court issued a notice for contempt of court against the authority concerned for not implementing its order, the Supreme Court came down upon the high court and observed:“In our considered view hooking a party to contempt proceeding and enforcing obedience to such orders hardly lends credence to judicial process and authority, more so, in the peculiar facts and circumstances of the case.  The Court must always be zealous in preserving its authority and dignity but at the saem time it will be inadvisable to require compliance of an order impossible of compliance at the instance of the person proceeding against for contempt”.

One of the most curious cases of contempt of court that reached the Supreme Court was the issue of a notice by a single judge of the Rajasthan High Court to the chief justice of that court to show cause why action should not be initiated against him for contempt of court as the chief justice had directed the posting of a writ petition before the division bench when the matter was part-heard before him.  The Supreme Court quashed the notice issued by the single judge as illegal, without jurisdiction, and totally misconceived as the posting of cases before different judges and division of judges was the prerogative of the chief justice.

A question which arises but occasionally is whether a judge in whose presence contempt of court is committed can himself take action and punish the contemner.  The Supreme Court, in the case of Vinay Chand Mishra observed that consensus of opinion among jurists and judges alike was that notwithstanding the objections that the judge would be dealing with the cases of contempt of himself, and the contemnor would have little opportunity of defending himself, it was the only realistic way of dealing with certain offenders.  The principle of natural justice nemo judex sua causa, would not be offended since the proceeding was not aimed at the judge personally but protecting the administration of justice. The threat of immediate punishment was the most effective deterrent against misconduct in the presence of the judge who has full control of the hearing of the case and who must therefore be able to take steps to restore order as early and quickly as possible.

In the same case the Supreme Court also decided that where an advocate was guilty of criminal contempt of court, the court had the power to suspend him from practice or to remove his name form the roll of the Bar Council.  This part of the judgment was later reviewed by the court itself and it was held that while the Court had the power to disciplinary action under the Bar Council Act as that was prerogative of the Bar Council.

In the case of Vasudevan v. Dhanunjaya, an IAS officer met a judge of the Supreme Court at his residence to request him to show mercy to a colleague of his, against whom a proceeding for contempt of court was pending.  He met the judge at the instance of his colleague.  The Court took a serious notice of the matter and condemned the conduct of the officer as most reprehensible.  However, as the officer admitted the error of his ways and expressed deep regret, the Court did not desire to proceed further in the matter beyond ordering that an entry should be made about the gross impropriety in his confidential character role (CCR). A plea for further mercy was rejected by the court on the ground that it would send wrong signals to the public at large.  It was necessary to realize that no one was above the law. 

NO POWER TO DIRECT PARLIAMENT

In Union of India vs. Prakash P. Hinduja, the supreme court held: "Under our constitutional scheme Parliament exercises sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation.  In Supreme Court Employees' Welfare Assn. vs. Union of India it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority”.[1]  This view has been reiterated in State of J & K vs. A.R. Zakki.[2]

The  court has refused to give directions by stating “ In our opinion the prayers made by the petitioner in this petition require us to give directions of a legislative or executive nature which can only be given by the legislature or executive.  As held by this Court in Divisional Manager, Aravali Golf Course & Anr. vs. Chander Hass,[3] the judiciary cannot encroach into the domain of the legislature or executive.  The doctrine of separation of powers has been discussed in great detail in the aforesaid decision, and we endorse the views expressed therein.”

CONCLUSION

In the light of the above, it will be in the fitness of the things that the expression ‘contempt of court’ should be replaced by the expression ‘obstructing justice’, that the provision for committing for civil contempt should be retained, and that the definition of criminal contempt should be modified so as to exclude publications commenting upon pending proceedings in a matter of public interest, to exclude all criticism of a judgment other than attributing improper motives, if made after enquiry and verification and further to exclude all criticism of a general nature against the legal system and principles followed by courts in the county. 

The Contempt of Courts Amendment Act, 2006 which has introduced a new Section 13(b) that states: "The courts may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bona fide."[4] Thus, truth is now a defence in contempt of court proceedings if it is in the public interest and is bona fide.

If one understands the Swami Vivekananda’s messages in right perspective, an individual equipped with these three qualities of truth, purity and unselfishness is able to face the whole universe in opposition  .leave alone the contempt of court proceedings.

     [ Published in ALT (Criminal)/Monthly
May - 2010, PART-5 & 6]


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Note: The Author is a member of A P State Higher Judiciary. The views expressed in this article are purely personal.    





[1]  (2003) 6 SCC 195:AIR 2003 SC 2612
[2]  1992 Supp SCC 548 : AIR 1992 SC 1546
[3]  JT 2008(3) SC 221
[4]  The Contempt of Courts Amendment Act, 2006

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