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Friday, August 10, 2012
One man show, I alone hv to spend time and money on major repairs
Friday, August 3, 2012
Criminal Contempt Jurisdiction of the Court......Dignity of the Court and Dignity of Citizens of India
Criminal Contempt Jurisdiction of the Court......Dignity of the Court and Dignity of Citizens of India.
I start with the presumption of the supremacy of the People of India who have given the Constitution of India to themselves and the State organs comprising The Representatives of the People, The Ministers, The Commissioners and The Judges- Owe their origin, derive their authority, discharge their responsibilities and are conferred Powers, Privileges and Immunities only for one and only one purpose and that is for Security and Dignity of each and every individual. The Govts are entitled to collect Taxes from the Labouring Indians and in return to ensure security and dignity to each and every Indian.
A greatest degree of certainty must be supplied to every law and in particularly to a penal law which seek to imprison a man having committed that offence. When come to law of Criminal contempt of the court, wherein a Citizenry, having acted in a manner, is exposed to personal interpretation of every second Judge. Today, the scene is, that my alleged act is an sure offence for one Judge and none for second Judge.
This is not good. The Court must find the occasion to fix the ambit of offence. "Lowered the dignity"..... "tarnished image"....... concept are fundamentally personal opinion of every individual.... where the saying goes as- we do not see things as they are, but we see things as we are"............yet an act which is so scandalous in nature & content which every mind of ordinary prudence will regard it unworthy and uncalled for, may be regarded as having element of lowering the dignity... tarnishing the image.
When Judges says that act of Mr.X has lowered and tarnished the image of highest judiciary....... it is of LEAST / NO importance what the Judges feel and infer from alleged acts of Mr.X.......... what is of only importance- when if the general public at large is offended by the alleged act of Mr.X...... and there is public opinion coming that act of Mr.X has lowered and tarnished image.
Moreover, the dignity and the respect by its very nature cannot be commanded or enforced. It is earned by service and sacrifice in a similar fashion the head of the Family earn by securing and ensuring a food security, a good education, access to healthcare, a roof to live in safely, to every member. A king merely shouting from the Ivory tower commanding Respect does not get any. Instead, People fear of him for his mindless presumed and imagined insult.
The Judges are not divine beings. Their acts and omissions can have the element of error and foul play inherent in every other human being. Their acts and omissions can be and must be critically argued. The essence of immorality is the tendency to make an exception of MYSELF.
The Courts are not mere benches where they adjudicate upon disputes but are Temples where they get an opportunity to serve and protect suffering humanity and foester human development. The Court of Law or as fondly called the Courts of Equity, like the Temples, must be the place at least where People can come with no fear.
A Critic is a Friend of the Court. A Person who seeks to publicly criticize any Judicial action or inaction invariably requires a pack of Courage, Conviction and Complete faith in his so critical stand.
Ordinarily, a person publicly critical of any Judicial action or inaction doesn’t do so to malign or scandalize any Judge or Judiciary, or out of sheer fancy, or to gain cheap publicity and on the contrary he is the ONE who is concerned and well wisher of the Judge and the Judiciary. He is the ONE who wants the Person or the System to be corrected. In Fact, it is no exaggeration if I were to say that he is the ONE who wants the dignity of the Justice System be protected. ONE who criticizes has a profound interest in the well being of the criticized.
The inherent objective and purpose of criticism is not to malign but to ensure that a person loaded with discretionary powers exercises the same not only in accordance with law but also ensure it is socially just and reasonable. The Judicial dignity and Rule of Law in the society go hand in hand. They are inalienable.
It appears that judges suffer from selective blindness or they just play us for fools. If at all the Judges are so concerned and passionate about Judicial dignity, why are they not disturbed, sleepless and responsive at the premise where millions of childrens are malnourished, innocent childrens are forced to beg by begging mafias, People are living on the footpath, Farmers committing suicides, millions of people displaced and never rehabilitated, in the name of development.
Why it doesn’t shocks the conscience of the Judges by the fact that millions of people still do not have access to clean drinking water and are forced to do toilets in the open.
Why it doesn’t shock the conscience of the Judges by the fact that millions of Childrens and women are trafficked for prostitution and the State fondly call them Commercial Sex Workers {CSWs}. Do these CSWs have the requisite sanction of Constitution of India?
The Judges merely talking tough and doing nothing. Rather they have assumed the role of commentator than adjudicator, at least when mighty State is involved.
Is it sufficed that Orders are passed on deaf ears of the State, without being follow up of their implementation. Doesn’t the Judiciary has powers to monitor implementation of Orders passed by itself. And the State leadership get away Judges momentary fury with cultivated tradition of strictures and criticism, caution and advice and are merely branded callous or worse.
The sustained bleeding of the section of the People’s inhumane sufferings has failed to impress the Judges. The Judges are not seen alarmed or panicked over the state of affairs.
It can be said with near certainty that Judges of India have hardly employed the Landmark Judgment of Hon. Justice Krishna Iyer in Ratlam Municipality Vs Vardichand (1980) in which the Hon’ble Court fully acknowledging the magnitude of corruption and colossal waste of public money in the State Administration, observed that the State cannot plead paucity of funds for its inability to ensure basic necessities of life. The Court further Said, "regardless of the Cash in their coffers, even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions; Otherwise a Statutory body or Govt agency may legally defy duties under the Law by urging in self defence a self created bankruptcy or perverted expenditure budget. That cannot be."
It is pertinent to mention words of wisdom by some of the finest Jurists we have in recent times on the sensitive issue of Contempt of Courts.
The Hon. Supreme Court, thru Justice Krishna Iyer, did try to restrain the use of Contempt of Court Act 1971 when it stated in Ram Dayal Markarha V State of MP AIR 1978 SC 922 that the path of Justice is not strewn with roses and Justice being not a cloistered virtue, it must be allowed to suffer the scrutiny, even though outspoken comments of ordinary man.
Hon’ble Justice Markandey Katju has said and I quote, “In a Democracy the People should have the right to criticize Judges. The Purpose of the contempt power should not be to uphold the Majesty and Dignity of the Court but only to enable it to function.
As observed by Lord Denning, one of the finest Judge of England “Let me say at once that we will never use contempt Jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor we resent it. For there is something far important at stake. It is freedom of speech itself”.
The Contempt of the Court or Scandalizing the Judges is a whim that is fancy. This is an illegality for an undefined cause. It is simply Judge’s vandalism. Overzealous defenders of judicial dignity only serve to erode its credibility.
Satyamev Jayate as we call it and which is one of the foundation of our Life and it is fallacy to presume that Truth came to be a valid defence only after the amendment so brought then.
Yet a Constitution, no matter how well conceived, can only create institution on papers. Breathing life into them is up to the men occupying seat of power.
The ultimate judicial dignity lies in People getting “Preamble Justice”, or else the Judges may seek illusory, cosmetic and customary dignity. The Judicial dignity shall occasion, by default, where the offender of law will stop laughing at the premise of threat of legal action.
With great hope of accountability and wisdom in my Guardians.
Sandeep Jalan
Advocate
Mumbai.
I start with the presumption of the supremacy of the People of India who have given the Constitution of India to themselves and the State organs comprising The Representatives of the People, The Ministers, The Commissioners and The Judges- Owe their origin, derive their authority, discharge their responsibilities and are conferred Powers, Privileges and Immunities only for one and only one purpose and that is for Security and Dignity of each and every individual. The Govts are entitled to collect Taxes from the Labouring Indians and in return to ensure security and dignity to each and every Indian.
A greatest degree of certainty must be supplied to every law and in particularly to a penal law which seek to imprison a man having committed that offence. When come to law of Criminal contempt of the court, wherein a Citizenry, having acted in a manner, is exposed to personal interpretation of every second Judge. Today, the scene is, that my alleged act is an sure offence for one Judge and none for second Judge.
This is not good. The Court must find the occasion to fix the ambit of offence. "Lowered the dignity"..... "tarnished image"....... concept are fundamentally personal opinion of every individual.... where the saying goes as- we do not see things as they are, but we see things as we are"............yet an act which is so scandalous in nature & content which every mind of ordinary prudence will regard it unworthy and uncalled for, may be regarded as having element of lowering the dignity... tarnishing the image.
When Judges says that act of Mr.X has lowered and tarnished the image of highest judiciary....... it is of LEAST / NO importance what the Judges feel and infer from alleged acts of Mr.X.......... what is of only importance- when if the general public at large is offended by the alleged act of Mr.X...... and there is public opinion coming that act of Mr.X has lowered and tarnished image.
Moreover, the dignity and the respect by its very nature cannot be commanded or enforced. It is earned by service and sacrifice in a similar fashion the head of the Family earn by securing and ensuring a food security, a good education, access to healthcare, a roof to live in safely, to every member. A king merely shouting from the Ivory tower commanding Respect does not get any. Instead, People fear of him for his mindless presumed and imagined insult.
The Judges are not divine beings. Their acts and omissions can have the element of error and foul play inherent in every other human being. Their acts and omissions can be and must be critically argued. The essence of immorality is the tendency to make an exception of MYSELF.
The Courts are not mere benches where they adjudicate upon disputes but are Temples where they get an opportunity to serve and protect suffering humanity and foester human development. The Court of Law or as fondly called the Courts of Equity, like the Temples, must be the place at least where People can come with no fear.
A Critic is a Friend of the Court. A Person who seeks to publicly criticize any Judicial action or inaction invariably requires a pack of Courage, Conviction and Complete faith in his so critical stand.
Ordinarily, a person publicly critical of any Judicial action or inaction doesn’t do so to malign or scandalize any Judge or Judiciary, or out of sheer fancy, or to gain cheap publicity and on the contrary he is the ONE who is concerned and well wisher of the Judge and the Judiciary. He is the ONE who wants the Person or the System to be corrected. In Fact, it is no exaggeration if I were to say that he is the ONE who wants the dignity of the Justice System be protected. ONE who criticizes has a profound interest in the well being of the criticized.
The inherent objective and purpose of criticism is not to malign but to ensure that a person loaded with discretionary powers exercises the same not only in accordance with law but also ensure it is socially just and reasonable. The Judicial dignity and Rule of Law in the society go hand in hand. They are inalienable.
It appears that judges suffer from selective blindness or they just play us for fools. If at all the Judges are so concerned and passionate about Judicial dignity, why are they not disturbed, sleepless and responsive at the premise where millions of childrens are malnourished, innocent childrens are forced to beg by begging mafias, People are living on the footpath, Farmers committing suicides, millions of people displaced and never rehabilitated, in the name of development.
Why it doesn’t shocks the conscience of the Judges by the fact that millions of people still do not have access to clean drinking water and are forced to do toilets in the open.
Why it doesn’t shock the conscience of the Judges by the fact that millions of Childrens and women are trafficked for prostitution and the State fondly call them Commercial Sex Workers {CSWs}. Do these CSWs have the requisite sanction of Constitution of India?
The Judges merely talking tough and doing nothing. Rather they have assumed the role of commentator than adjudicator, at least when mighty State is involved.
Is it sufficed that Orders are passed on deaf ears of the State, without being follow up of their implementation. Doesn’t the Judiciary has powers to monitor implementation of Orders passed by itself. And the State leadership get away Judges momentary fury with cultivated tradition of strictures and criticism, caution and advice and are merely branded callous or worse.
The sustained bleeding of the section of the People’s inhumane sufferings has failed to impress the Judges. The Judges are not seen alarmed or panicked over the state of affairs.
It can be said with near certainty that Judges of India have hardly employed the Landmark Judgment of Hon. Justice Krishna Iyer in Ratlam Municipality Vs Vardichand (1980) in which the Hon’ble Court fully acknowledging the magnitude of corruption and colossal waste of public money in the State Administration, observed that the State cannot plead paucity of funds for its inability to ensure basic necessities of life. The Court further Said, "regardless of the Cash in their coffers, even as human rights under part Three of the Constitution have to be respected by the State regardless of Budgetary provisions; Otherwise a Statutory body or Govt agency may legally defy duties under the Law by urging in self defence a self created bankruptcy or perverted expenditure budget. That cannot be."
It is pertinent to mention words of wisdom by some of the finest Jurists we have in recent times on the sensitive issue of Contempt of Courts.
The Hon. Supreme Court, thru Justice Krishna Iyer, did try to restrain the use of Contempt of Court Act 1971 when it stated in Ram Dayal Markarha V State of MP AIR 1978 SC 922 that the path of Justice is not strewn with roses and Justice being not a cloistered virtue, it must be allowed to suffer the scrutiny, even though outspoken comments of ordinary man.
Hon’ble Justice Markandey Katju has said and I quote, “In a Democracy the People should have the right to criticize Judges. The Purpose of the contempt power should not be to uphold the Majesty and Dignity of the Court but only to enable it to function.
As observed by Lord Denning, one of the finest Judge of England “Let me say at once that we will never use contempt Jurisdiction as a means to uphold our own dignity. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor we resent it. For there is something far important at stake. It is freedom of speech itself”.
The Contempt of the Court or Scandalizing the Judges is a whim that is fancy. This is an illegality for an undefined cause. It is simply Judge’s vandalism. Overzealous defenders of judicial dignity only serve to erode its credibility.
Satyamev Jayate as we call it and which is one of the foundation of our Life and it is fallacy to presume that Truth came to be a valid defence only after the amendment so brought then.
Yet a Constitution, no matter how well conceived, can only create institution on papers. Breathing life into them is up to the men occupying seat of power.
The ultimate judicial dignity lies in People getting “Preamble Justice”, or else the Judges may seek illusory, cosmetic and customary dignity. The Judicial dignity shall occasion, by default, where the offender of law will stop laughing at the premise of threat of legal action.
With great hope of accountability and wisdom in my Guardians.
Sandeep Jalan
Advocate
Mumbai.
Contempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Contempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Section 5 of the Contempt of the Courts Act, 1971 – a
Person shall not be guilty of Contempt of the Court for publishing any fair
comment on the merits of the case which has heard and finally decided.
The Proceedings should not be initiated lightly – Pradip
Kumar Biswas (Dr) versus Subrata Das – (2004) 4 SCC 573
Fair comments even if outspoken, but made without any
malice and without attempting to impair the administration of justice and made
in good faith in proper language, do not attract any punishment for contempt of
Court – AIR 1988 SC 3299.
There can be no manner of
doubt that in this country the principles which should govern cases of the
present kind are now fully settled by the previous decisions of this Court. we
may re; state the result of the discussion of the above cases on this head of
contempt which is by no means exhaustive.
(1 ) It will not be right to
say that committals for contempt for scandalizing the court have become
obsolete.
(2) The summary jurisdiction by
way of contempt must be exercised with great care and caution and only when its
exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to
express fair, reasonable and legitimate criticism of any act or conduct of a
judge in his judicial capacity or even to make a proper and fair comment on any
decision given by him because "justice is not a cloistered virtue and she must
be allowed to suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men".
(4) A distinction must be made
between .a mere libel or defamation of a judge and what amounts to a contempt of
the court. The test in each case would be whether the impugned publication is a
mere defamatory attack on the judge or whether it is calculated to interfere
with the due course of justice or the proper administration of law by his court.
It is only in the latter case that it wilt be punishable as Contempt. (1) [1959]
S.C.R. 1367. (2) [1953] S.C.R. 1169. 792
(5 ) Alternatively the test
will be whether the wrong is done to the judge personally or it is done to the
public. To borrow from the language of Mukherjea, J. (as he then was) (Brahma
Prakash Sharma's case)(1) the publication of a disparaging statement will be an
injury to the public if it tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the judge or to deter
actual and prospective litigants from placing complete reliance upon the court's
administration of justice or if it is likely to cause embarrassment in the mind
of the judge himself in the discharge of his judicial duties.
The Hon’ble Supreme court in the case of Muthu Karuppan
versus Parithi, in Para 9, observed as – The contempt proceedings being quasi
criminal in nature, burden and standard of proof is the same as required in
criminal cases. The charges have to be framed as per the statutory rules framed
for the purpose and proved beyond reasonable doubt keeping in mind that the
alleged contemnor is entitled to the benefit of doubt. Law does not permit
imposing any punishment in contempt proceedings on mere probabilities; equally,
the court cannot punish the alleged contemnor without any foundation merely on
conjectures and surmises. As observed above, the contempt proceeding being quasi
criminal in nature require strict adherence to the procedure prescribed under
the rules applicable in such proceedings. [AIR 2011 SC 1645]
....Courtesy. Ad Sandeep Jalan
Criminal Contempt Jurisdiction of the CourtContempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Contempt of Courts - Defences available - Truth, Fair Criticism, innocent Publication
Section 5 of the Contempt of the Courts Act, 1971 – a
Person shall not be guilty of Contempt of the Court for publishing any fair
comment on the merits of the case which has heard and finally decided.
The Proceedings should not be initiated lightly – Pradip
Kumar Biswas (Dr) versus Subrata Das – (2004) 4 SCC 573
Fair comments even if outspoken, but made without any
malice and without attempting to impair the administration of justice and made
in good faith in proper language, do not attract any punishment for contempt of
Court – AIR 1988 SC 3299.
There can be no manner of
doubt that in this country the principles which should govern cases of the
present kind are now fully settled by the previous decisions of this Court. we
may re; state the result of the discussion of the above cases on this head of
contempt which is by no means exhaustive.
(1 ) It will not be right to
say that committals for contempt for scandalizing the court have become
obsolete.
(2) The summary jurisdiction by
way of contempt must be exercised with great care and caution and only when its
exercise is necessary for the proper administration of law and justice.
(3) It is open to anyone to
express fair, reasonable and legitimate criticism of any act or conduct of a
judge in his judicial capacity or even to make a proper and fair comment on any
decision given by him because "justice is not a cloistered virtue and she must
be allowed to suffer the scrutiny and respectful, even though outspoken,
comments of ordinary men".
(4) A distinction must be made
between .a mere libel or defamation of a judge and what amounts to a contempt of
the court. The test in each case would be whether the impugned publication is a
mere defamatory attack on the judge or whether it is calculated to interfere
with the due course of justice or the proper administration of law by his court.
It is only in the latter case that it wilt be punishable as Contempt. (1) [1959]
S.C.R. 1367. (2) [1953] S.C.R. 1169. 792
(5 ) Alternatively the test
will be whether the wrong is done to the judge personally or it is done to the
public. To borrow from the language of Mukherjea, J. (as he then was) (Brahma
Prakash Sharma's case)(1) the publication of a disparaging statement will be an
injury to the public if it tends to create an apprehension in the minds of the
people regarding the integrity, ability or fairness of the judge or to deter
actual and prospective litigants from placing complete reliance upon the court's
administration of justice or if it is likely to cause embarrassment in the mind
of the judge himself in the discharge of his judicial duties.
The Hon’ble Supreme court in the case of Muthu Karuppan
versus Parithi, in Para 9, observed as – The contempt proceedings being quasi
criminal in nature, burden and standard of proof is the same as required in
criminal cases. The charges have to be framed as per the statutory rules framed
for the purpose and proved beyond reasonable doubt keeping in mind that the
alleged contemnor is entitled to the benefit of doubt. Law does not permit
imposing any punishment in contempt proceedings on mere probabilities; equally,
the court cannot punish the alleged contemnor without any foundation merely on
conjectures and surmises. As observed above, the contempt proceeding being quasi
criminal in nature require strict adherence to the procedure prescribed under
the rules applicable in such proceedings. [AIR 2011 SC 1645]
Wednesday, August 1, 2012
Will samll causes court ever punish ...
advocates / litigants who abuse process of law , file misleading applications to delay and harrass and waste precious time of Hon. Courts???
https://docs.google.com/file/d/0B6hXZkfsIpLQZWE2Zjk0NjItZmQ3NS00ODFiLThlYjQtMjI4ZWY2ZmFlNDdk/edit?authkey=CKuY_rUN
https://docs.google.com/file/d/0B6hXZkfsIpLQZWE2Zjk0NjItZmQ3NS00ODFiLThlYjQtMjI4ZWY2ZmFlNDdk/edit?authkey=CKuY_rUN
Friday, July 27, 2012
Exposing judicial and other corruption is Not contempt.
Leo Rebello ✆ prof.leorebello@gmail.com
Jul 24 (3 days ago)
to pushpa, me
Pushpa -- Alok knows me... And he is perfectly within his right to
write what he has written so explicitly. Exposing judicial and other corruption is Not contempt.
Jul 24 (3 days ago)
to pushpa, me
Pushpa -- Alok knows me... And he is perfectly within his right to
write what he has written so explicitly. Exposing judicial and other corruption is Not contempt.
Tuesday, July 24, 2012
Freedom of Speech versus Contempt of Court: The law revisited
http://legalperspectives.blogspot.in/2010/10/freedom-of-speech-versus-contempt-of.html
5 OCT 2010
Freedom of Speech versus Contempt of Court: The law revisited
Holding that somewhere the line has to be drawn between the exercise of the freedom of speech and expression and the law relating to contempt of court, the Supreme Court in a recent decision [Indirect Tax Practitioners Association v. R.K. Jain] dismissed the contempt petition against a publisher of a law journal for alleged contempt of a tax tribunal committed by him in terms of the articles/editorials published in the law journal.
Justice G.S. Singhvi, speaking for the Bench, inter alia defined the dividing line the following terms;
14. Before adverting to the second and more important issue, we deem it necessary to remind ourselves that freedom of speech and expression has always been considered as the most cherished right of every human being. Justice Brennan of U.S. Supreme Court, while dealing with a case of libel – New York Times Company v. L.B. Sullivan observed that “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” In all civilized societies, the Courts have exhibited high degree of tolerance and accepted adverse comments and criticism of their orders/judgments even though, at times, such criticism is totally off the mark and the language used is inappropriate. The right of a member of the public to criticize the functioning of a judicial institution has been beautifully described by the Privy Council in Andre Paul Terence Ambard v. Attorney General of Trinidad and Tobago AIR 1936 PC 141 in the following words:
“No wrong is committed by any member of the public who exercises the ordinary right of criticizing in good faith in private or public the public act done in the seat of justice. The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”
In Debi Prasad Sharma v. The King Emperor AIR 1943 PC 202, Lord Atkin speaking on behalf of the Judicial Committee observed:
“In 1899 this Board pronounced proceedings for this species of contempt (scandalization) to be obsolete in this country, though surviving in other parts of the Empire, but they added that it is a weapon to be used sparingly and always with reference to the administration of Justice: McLeod v. St. Auhyn. In In re a Special Reference from the Bahama Islands the test applied by the very strong Board which heard the reference was whether the words complained of were in the circumstances calculated to obstruct or interfere with the course of justice and the due administration of the law. In Queen v. Gray it was shown that the offence of scandalizing the court itself was not obsolete in this country. A very scandalous attack had been made on a Judge for his judicial utterances while sitting in a criminal case on circuit, and it was with the foregoing opinions on record that Lord Russell of Killowen, C.J., adopting the expression of Wilmot, C.J., in his opinion in Rex v. Almon which is the source of much of the present law on the subject, spoke of the article complained of as calculated to lower the authority of the Judge.”
In Regina v. Commissioner of Police of the Metropolis (1968) 2 All ER 319, Lord Denning observed:
‘‘Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.’’
15. In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one’s mind have always been respected. After independence, the Courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements. Such criticism cannot be castigated as an attempt to scandalize or lower the authority of the Court or other judicial institutions or as an attempt to interfere with the administration of justice except when such criticism is ill motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for extraneous reasons. Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. Only when the criticism of judicial institutions transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the Court would use this power. The judgments of this Court in Re S. Mulgaokar (1978) 3 SCC 339 and P.N. Duda v. P. Shiv Shanker (1988) 3 SCC 167 are outstanding examples of this attitude and approach. In the first case, a three-Judge Bench considered the question of contempt by newspaper article published in Indian Express dated 13.12.1977 criticising the Judges of this Court. The article noted that the High Courts had strongly reacted to the proposal of introducing a code of judicial ethics and propriety. In its issue dated December 21, 1977 an article entitled “behaving like a Judge” was published which inter alia stated that the Supreme Court of India was “packed” by Mrs Indira Gandhi “with pliant and submissive judges except for a few”. It was further stated that the suggestion that a code of ethics should be formulated by judges themselves was “so utterly inimical to the independence of the judiciary, violative of the constitutional safeguards in that respect and offensive to the self-respect of the judges as to make one wonder how it was conceived in the first place”. A notice had been issued to the Editor-in-Chief of the newspaper to show cause why proceedings for contempt under Article 129 of the Constitution should not be initiated against him in respect of the above two news items. After examining the submissions made at the Bar, the Court dropped the contempt proceedings. Beg, C.J., expressed his views in the following words:
“Some people perhaps believe that attempts to hold trials of everything and everybody by publications in newspapers must include those directed against the highest Court of Justice in this country and its pronouncements. If this is done in a reasonable manner, which pre-supposes accuracy of information about a matter on which any criticism is offered, and arguments are directed fairly against any reasoning adopted, I would, speaking for myself, be the last person to consider it objectionable even if some criticism offered is erroneous. In Bennett Coleman & Co. v. Union of India, I had said (at p. 828) (SCC pp. 827-28):
“John Stuart Mill, in his essay on ‘Liberty’, pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be called the ‘dialectical’ process of a struggle with wrong ones which exposes errors. Milton, in his ‘Areopagitica’ (1644) said:
Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter?... Who knows not that Truth is strong, next to the Almighty; she needs no policies, no stratagems, no licensings to make her victorious; those are the shifts and defences that error makes against her power ....”
Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat’s faith when he told, an adversary in arguments : “I do not agree with a word you say, but I will defend to the death your right to say it”. Champions of human freedom of thought and expression throughout the ages, have realised that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members.
“Although, our Constitution does not contain a separate guarantee of Freedom of the Press, apart from the freedom of expression and opinion contained in Article 19(l)(a) of the Constitution, yet, it is well-recognised that the Press provides the principal vehicle of expression of their views to citizens. It has been said:
“Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so subtle. But, like other liberties, this also must be limited.”
Krishna Iyer, J. agreed with C.J. Beg and observed:
“Poise and peace and inner harmony are so quintessential to the judicial temper that huff, “haywire” or even humiliation shall not besiege; nor, unveracious provocation, frivolous persiflage nor terminological inexactitude throw into palpitating tantrums the balanced cerebration of the judicial mind. The integral yoga of shanti and neeti is so much the cornerstone of the judicial process that criticism, wild or valid, authentic or anathematic, shall have little purchase over the mentation of the Court. I quite realise how hard it is to resist, with sage silence, the shafts of acid speech; and, how alluring it is to succumb to the temptation of argumentation where the thorn, not the rose, triumphs. Truth’s taciturn strategy, the testimony of history says, has a higher power than a hundred thousand tongues or pens. In contempt jurisdiction, silence is a sign of strength since our power is wide and we are prosecutor and judge.”
In the second case, this Court was called upon to initiate contempt proceedings against Shri P. Shiv Shanker who, in his capacity as Minister for Law, Justice and Company Affairs, delivered a speech in the meeting of Bar Council of Hyderabad on November 28, 1987 criticising the Supreme Court. Sabyasachi Mukharji, J. (as he then was) referred to large number of precedents and made the following observation:
“Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men” — said Lord Atkin in Ambard v. Attorney- General for Trinidad and Tobago. Administration of justice and judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. This the judges must do in the light given to them to determine what is right. And again as has been said in the famous speech of Abraham Lincoln in 1965: “With malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right.” Any criticism about the judicial system or the judges which hampers the administration of justice or which erodes the faith in the objective approach of judges and brings administration of justice into ridicule must be prevented. The contempt of court proceedings arise out of that attempt. Judgments can be criticised; the motives of the judges need not be attributed, it brings the administration of justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas criticisms about the judicial system or judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice. This is how courts should approach the powers vested in them as judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.
It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar’s wife, must be above suspicion, per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court. It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remediless evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the judges and lawyers must make about themselves. We must turn the searchlight inward. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama Dayal Markarha v. State of Madhya Pradesh where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the judge had a predisposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and prejudging of the issues which would bring administration of justice into ridicule. Criticism of the judges would attract greater attention than others and such criticism sometimes interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into ridicule or hampers administration of justice. After all it cannot be denied that predisposition or subtle prejudice or unconscious prejudice or what in Indian language is called “sanskar” are inarticulate major premises in decision making process. That element in the decision making process cannot be denied, it should be taken note of.”
In Baradakanta Mishra v. Registrar of Orissa High Court (1974) 1 SCC 374, Krishna Iyer, J. speaking for himself and P.N. Bhagwati, J., as he then was,emphasized the necessity of maintaining constitutional balance between two great but occasionally conflicting principles i.e. freedom of expression which is guaranteed under Article 19(1)(a) and fair and fearless justice, referred to “republican justification” suggested in the American system and observed:
“Maybe, we are nearer the republican justification suggested in the American system:
“In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this state, all judges are elected by the people, and hold their authority, in a double sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people, which the judges sit to exercise and enforce. Contempt against these courts, the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law, whom they employ in the conduct of their Government.”
This shift in legal philosophy will broaden the base of the citizen’s right to criticise and render the judicial power more socially valid. We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling criticism of a strategic institution, namely, administration of Justice, thus forbidding the right to argue for reform of the judicial process and to comment on the performance of the judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice, may be a tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic Government. The judicial instrument is no exception. To cite vintage rulings of English Courts and to bow to decisions of British Indian days as absolutes is to ignore the law of all laws that the rule of law must keep pace with the Rule of life. To make our point, we cannot resist quoting McWhinney, who wrote:
“The dominant theme in American philosophy of law today must be the concept of change — or revolution — in law. In Mr Justice Oliver Wendell Holmes’ own aphorism, it is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. prestige argument, from age alone, that because a claimed legal rule has lasted a certain length of time it must automatically be valid and binding at the present day, regardless of changes in basic societal conditions and expectations, is no longer very persuasive. According to the basic teachings of the Legal Realist and policy schools of law, society itself is in continuing state of flux at the present day; and the positive law, therefore, if it is to continue to be useful in the resolution of contemporary major social conflicts and social problems, must change in measure with the society. What we have, therefore, concomitantly with our conception of society in revolution is a conception of law itself, as being in a condition of flux, of movement. On this view, law is not a frozen, static body of rules but rules in a continuous process of change and adaptation; and the judge, at the final appellate level anyway, is a part — a determinant part — of this dynamic process of legal evolution.”
This approach must inform Indian law, including contempt law.
It is very necessary to remember the legal transformation in our value system on the inauguration of the Constitution, and the dogmas of the quiet past must change with the challenges of the stormy present. The great words of Justice Holmes uttered in a different context bear repetition in this context:
“But when men have realized 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. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that 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."
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