PUBLICATIONS

How fair is it for members of the bar to criticise the judiciary?

Posted on September 20, 2010. Filed under: PUBLICATIONS |

A casual stroll in the corridors of a Court shall expose a person to the cacophony of opinions eulogizing or deriding the judiciary; often with citation of unmentionable specifics. In my time at the Bar, I have heard stories of deteoriating standards at the bar and on the bench, however, stories are often exaggerated and incredible and I cannot affirm them with any certainty. But I tend to reflect on the point, is it that the method or standard of judging judges has witnessed deterioration as well. Perhaps so.

As a citizen of a modern democracy, often I am unable to appreciate the value of free speech and moreso, the freedom to criticize anything and by whichever means. That’s a right. And my lessons in high school taught me it’s a ‘fundamental right’ under Article 19(1)(a) of the constitution of India; something to take great pride in. I faintly recollect the part of my textbook in highschool which read that the right to freedom of speech is ‘not absolute’. My baby steps in law school introduced me to the concept but I must credit the popular media and in context of this piece, certain members of the Bar which bring me to delve deeper on the scope and ambit of the restriction contained in article 19(2) to an absolute freedom of speech. Congruent to the ethos of article 19(1)(a) there is a fairly large body of opinion on the right to free speech in the Indian democracy and I shall restrict the scope of this piece to judicial institutions.

The Indian constitution without spelling it out in as many words has drawn inspiration from the American constitutional system of checks and balances. The system of checks and balances is to prevent any one organ of the state to assume supremacy over the other(s) thereby maintaining the critical balance where powers and prerogatives of each organ remain within constitutional limits. The judiciary in India is contained in this design and article 124(4) of the constitution provides the process of removal of a judge of the Supreme Court of India to which the President, the Head of the Executive organ, and the House of Parliament, the Legislative organ are integral. Article 217(b) of the constitution cites the aforementioned process of removal as the process of removing a judge of the High Court. Therefore, the judiciary is answerable to the people of this country by virtue of being answerable to the House of Paliament which comprises of the elected representatives of the people. This makes the judiciary amenable to public opinion and the people have a right to criticize the judiciary.

The Members of the Bar are but a subset of the population of the country and must be treated at par with the ordinary citizen of this country unless the state wishes to bring itself in conflict with article 14 and 19(1)(g), i.e. fundamental right to being treated equally and to practice a profession of ones choice respectively. However, the law does not place all state organs on the same panoply to criticise. Over and above the ‘non absolute’ restrictions placed upon criticism of the Legislature and the Executive article 129 provides the Supreme Court with powers to punish for contempt of itself and similar powers are conferred upon the High Court by virtue of article 215 of the constitution. Further, section-10 of the Contempt of Courts Act, 1971 empowers the High Court to punish for contempt of the lower judiciary. Nyaya panchayats or other village courts are excluded from the ambit of the Contempt Act by virtue of Section-21 of the same Act. Certain privileges against criticism are provided to the House of Parliament and State Legislature by virtue of articles 105 and 194 of the constitution respectively, however, the design of article 129 of the constitution is vastly different. A necessary corollary to restrictions on criticism is that there is a right to criticize albeit subject to restrictions. Therefore, criticism of the judiciary is not contemnable unless it trespasses onto the territory of the restrictions.

What are these restrictions then? The constitution of India does not lay down the measure of contempt. What would constitute contempt and what would not?  The Contempt of Courts Act, 1971 enumerates the measure of contempt. However, the units of the measure are sparsely located and excludes acts of innocent publication and distribution of matter, fair and accurate report of judicial proceeding, fair criticism of judicial act, any statement made by a person in good faith concerning the presiding officer of any subordinate court to any other subordinate court or the high court, publication of information relating to proceedings in chambers or in camera subject to certain cases.

Contempt in itself is of two kinds, civil and criminal, which are defined as such in the following provisions of the Contempt Act:

Section-2(b) defines civil contempt as:

“”Civil contempt” means willful disobedience to any judgement, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court.”

Section-2(c) defines criminal contempt as:

“”Criminal contempt” means 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)   Scandalizes or tends to scandalize, 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.”

Therefore, for an act to be an act of civil contempt there must be [a] disobedience of any judgment, decree, direction, order, writ or other process of court; or [b] breach of any undertaking given to Court; and such disobedience and breach shall be willful. While, to qualify an act to be disobedient and in breach in the sense provided above cogent reasons exist in law but to determine the willful nature of such act cannot be determined on a set formula and is contingent upon the context of the case.

Similarly, for an act of criminal contempt there must be, publication or doing of an act which [a] scandalizes or tends to scandalize, or lowers or tends to lower; authority of any Court, or [b] prejudices, or interferes or tends to interfere; due course of any judicial proceeding, or [c] interferes or tends to interfere, or obstructs or tends to obstruct; administration of justice in any other manner. It is normative to decide what shall constitute the meaning of the terms scandalize, lowers, prejudices, interferes or obstructs. Often the acts under scrutiny do not fall under the natural and ordinary meaning of the aforementioned terms and the judiciary is left to appreciate the context of the case to justify the act as contemnable or not. By no means is this an easy task.

The task is difficult for myriad reasons, but, certain highlights could be:

Firstly, to discharge the burden of selflessness. The maxim nemo judex in re sua fills the notes on this point. The maxim contains the principle of natural justice that ‘no man should be a judge in his own cause’. The principle echoes the propensity of a person to consider the motives and actions of other(s) to be for the maximum benefit of themselves, often to the exclusion of all others. The Contempt of Courts Act, 1971 contains a procedure prescribed by law to discharge the burden imposed by this maxim. However, while immune from conflict with legal provisions the judiciary does not get complete immunity from allegations of bias. It is agreed, mere allegations of bias is not enough to hold the judiciary down but it does make the judiciary amenable to criticism(within the restrictions ofcourse). For this reason, it may be so that Hon’ble J. Krishna Iyer in his judgment in the case In Re S. Mulgaokar, (1978) 3 SCC 339¶32 exhorted the judges to avoid being hypersensitive even where distortions and criticisms of the judiciary overstepped the limits.

Secondly, to harmonise constitutional values of free criticism and need for a fearless curial process. But how heavy a burden is this. The ‘value of free criticism’ in itself has not witnessed tremendous support. Few regimes champion the value and even fewer have managed to uphold its dignity. Even the Indian democracy, with its libertarian ethos, has struggled to uphold the ‘value of free criticism’ grappling between extremes of the emergency and ouster of leaders from national political parties for their beliefs and convictions. On the other hand, the citizens of this country alongwith the entire framework of institutional systems demand a fearless curial process and would not settle for anything lesser. And barring aberrations, the judiciary in India has been able to maintain the reputation of a fearless curial process with judgments interspersed in the history of independent India which have stood for constitutional rights at the risk of being on collision course and sometimes colliding head on with the other organs of this democracy. To harmonise the reasonable approach of valuing free criticism and to play the sentinel on the qui vive to punish for contempt of itself is no mean task. The words of Hon’ble J. Krishna Iyer in his judgment in the case In Re S. Mulgaokar, when aggregated throw light on this burden: ‘The Court should act with seriousness and severity where justice is being 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 notice cannot gag it or manacle it. The Court must avoid confusion between personal protection of a libelled Judge and prevention of obstruction of public justice and the community’s confidence in that great process. The former is not contempt but the latter is, although overlapping spaces abound.’

Thirdly, dealing with ignorant reporting. While the term ‘reporting’ may be popularly substituted for ‘media reporting’ I seek the liberty to include within the meaning of the term ‘reporting’ any publication or doing of an act by any person of the processes of the Court. Not every process of the Court is discharged by the judges or supervised under their command. The functions of the judiciary can be clearly divided into administrative and judicial functions. Moreover, when a case is pending before the Court or when a case is being heard judges may probe and investigate the case and every comment or opinion made by the judges cannot be taken against them as if it is their final legal opinion on the case. Often, junior members of the Bar and the media miss this basic but vital difference and criticism by casual remarks is misplaced and unfair.

Fourthly, judging motives. Hon’ble Chief Justice Beg in the case In Re S. Mulgaokar, (1978) 3 SCC 339¶15  stated that national interest required that all criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics and should be a part of national ethics. The difficulty in judging the motive of a person is best summarised by Hon’ble Justice Black, who states that even the devil doesn’t know the mind of a man and to expect the judges to be infallible in knowing the mind of a man is an impossibility. Ofcourse, motive is ascertained with the circumstances surrounding the act but to be infallible is impossible. If a junior member of the Bar mouths unmentionable specifics against the judiciary or a particular judge(s) and if it qualifies the test laid down in section-2(b) or section 2-(c) of the Contempt of Courts Act, 1971 the member must be held liable/guilty of contempt. There is no reason to distinguish a junior member from a senior member at the Bar or a Senior Advocate. The law does not afford any special liberty to them. But what happens in a case where the publication or doing of an act does not squarely fall but tends to fall within the definition of section-2(b) or section 2-(c) of the Contempt of Courts Act, 1971. In a recent decision of the Hon’ble Supreme Court, Hari Singh Nagra & Ors. v. Kapil Sibal & Ors., (2010) 7 SCC 502 Hon’ble Justice J.M. Panchal speaking for himself and justice A.K. Pattnaik exonerated senior advocate and now HRD Minister Mr. Kapil Sibbal of the charge of criminal contempt. The publication in the case was of a message by Mr. Sibbal about the plight of the junior members at the Bar and about the failing standards of legal fraternity. The Hon’ble Supreme Court dismissed the contempt petition considering inter alia the reasonably tempered tone of the message and the constructive criticism contained in it. The moot point is if contempt is moved against a junior member of the Bar for an article with a reasonably tempered tone and constructive criticism would the law take the same course. Perhaps not. It is important to consider whether a junior member of the Bar must first achieve a sound understanding of the legal process and a standing at the Bar to afford himself the liberty to criticize.  To determine if the member has developed a sound understanding or not or developed a reasonable standard at the Bar cannot be chained within set parameters. Ofcourse this is debatable. And the open ended nature of this point complicates the task of the judge to judge motives.

Fifthly, the difference between judge and the judiciary. In contempt proceedings, specially when the contempt is contempt of any process of the Court, the bench assumes duality of roles; the aggrieved party as well as the judge. And the independent opinion of judges is criticized as reflective of their personality trait. The expectations on the judiciary is pegged at infallibility but the judges are humans as well. It is interesting to note the views of Justice Benjamin N. Cardozo who tells us that the business of the judge, was to discover objective truth. His own little individuality, his tiny stock of scattered and uncoordinated philosophies, these, with all his weaknesses and unconscious prejudices, were to be laid aside and forgotten. According to Justice Cardozo the truth is, however, that all these inward questionings are born of the hope and desire to transcend the limitations which hedge our human nature. The rule of law provides immunity to judges against personal liability for discharging constitutional duties but in discharge of these duties no judge appreciates challenge to his/her integrity and competence and such personal jibes would not only constitute lowering the dignity of the judge but the dignity of the entire judicial institution. Therefore, judges bear additional responsibilities to punish for contempt as the dignity of the office far exceeds their personal convictions.

It would be unfair to place the onus of maintaining the dignity of the judiciary entirely on the judges and the members of the Bar must shoulder the burden. Criticism at the Bar plays a subtle role in acting as checks and balances for the judiciary, however, such criticism must be keeping in mind the difficulties faced by the Court to uphold the dignity of this constitutional institution.  The criticism must not only avoid trespassing onto the territory of restrictions making it amenable for fine or punishment under the Contempt of Courts Act, 1971 but must also be responsible and fair. While the Bar enjoys the same rights as the ordinary citizen of this country its duties are much larger and integral to uphold the dignity of the judiciary. Even if the criticism is not contemnable within the Act but is irresponsible and unfair the same shall be condemnable. Therefore, there emerges three classifications of criticism: [i] fair criticism, [ii] condemnable  criticism and [iii] contemnable criticism. In a democracy which prides itself with the ‘value of free criticism’ and endeavours to uphold its dignity a member of the Bar must always tend to fall in line with fair criticism and avoid crossing the line to contemnable criticism and condemnable criticism.