Criticism and contempt

Justice Markandey Katju8217;s recent forthright exposition of the law of contempt has helped to remove some cobwebs surrounding the subject. Criticism of a judgment of the court, even if it be vehement or ill-informed, is not contempt. Why? Because the 8220;path of criticism is a public way. The wrong-headed are permitted to err therein. Justice is not a cloistered virtue.8221; Besides, the judiciary, like any other human institution, is not infallible. Decisions of a court entail consequences not only upon the parties to the litigation but have a wider impact on the community. Hence, criticism is not only permissible but necessary because free and frank debate about judgments constitutes a democratic check on the judiciary and ensures judicial accountability.

Justice Albie Sachs of the South African Constitutional Court aptly summed up the position in holding that 8220;it is not just the public that has the right to scrutinise the judiciary, but the judiciary that has the right to have its activities subjected to the most rigorous critique8230;The judiciary, as the ultimate guardian of free speech, must show the greatest tolerance to criticism of its own functioning.8221; But in the name of freedom of speech and freedom of the press there cannot be a free-for-all. You may call a judge dense and lazy, irritatingly garrulous, hasty, impatient and overbearing and hopefully get away with it. However there are certain limits which cannot be transgressed. There is an important distinction between assailing the correctness of judgments and assailing the integrity of judges who pronounced them. Criticism cannot take the form of scurrilous and wanton attacks on the judiciary as an institution because of the grave implications of loss of public confidence in the judiciary. And remember that justice is rooted in confidence. True, judges ought not be hypersensitive even where distortions and criticism overstep the limits. However if the court considers, in the inimitable words of Justice Krishna Iyer, 8220;attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream.8221;

Ultimately, what is needed is to strike a fair balance between two constitutional values 8212; the right of free speech and the right to independent justice. A delicate task, which our apex court may be expected to perform satisfactorily.

Judicial fury

It is an occupational hazard of lawyers to suffer indignities and, at times, physical assaults for their conduct of a case. A witness whom Lord Hailsham had cross-examined when he was a young barrister confronted him outside court and said, 8220;Young man, you made me out to be a liar. Take that and that and that!8221; And hit him three times with her umbrella.

Lawyers tend to lose their cool in court when they are constantly interrupted by overenthusiastic juniors or instructing advocates. Sir Patrick Hastings had to curb an irrepressible solicitor by hitting him upon the head with a volume of the Law Reports. There have been instances of lawyers indulging in fisticuffs with their opposing learned brethren.

But judges resorting to blows in court is indeed rare. It happened at the US-Iran claims tribunal in The Hague in 1984, when a Swedish judge was physically assaulted by two Iranian judges, who alleged that he was pro-American. One of the Iranian judges threatened that 8220;if judge Mangard tries to enter this tribunal again either his body or mine will roll down the steps of the court.8221; Judicial fury indeed.

However, it is unheard of for a judge to invite his brother judge for tea to his home, get into a heated argument with him and, as a fitting climax, hurl a few blows. This distinction was achieved recently by Justice B.J. Shethna of Gujarat High Court and the victim was Justice P.B. Majmudar. Shethna has disowned this dubious distinction and thus foreclosed his entry into the Guinness Book of Records.