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Be detached, be tolerant

Courts should use contempt law with utmost caution, and never to prevent criticism.

Updated: June 15, 2015 4:59:42 am
Supreme Court, NJAC, Collegium system, Mukul Rohatgi, supreme court judges, sc judges appointment, Narendra Modi government, Njac news, SC NJac, Appointment of judges, Judges appointment, bjp government, nda government, india news, nation news There has been a gradual arrogation of powers by judiciaries across the free world. The Indian judiciary is carrying out some functions that are traditionally considered to be the domain of the legislature and executive.

By: Ajit Prakash Shah

The media and the judiciary have an uneasy and delicate relationship. For a properly functioning democracy, it is important to get the balance right. The need for the court to maintain its authority and the freedom of the press must always be reconciled to maintain this balance. However, this fundamental equation often comes into conflict when the judiciary perceives media reporting as interference in the administration of justice, and the media invokes the fundamental right to report or comment on cases. Two areas with constant conflict are reporting on sub judice matters, a phenomenon also known as a media trial, and the frequent invocation of the powers of contempt by courts to punish the scandalising of judges.

For any judicial system, there are serious dangers when parallel trials are conducted by the media. It is hard to believe that judges are never influenced, even subconsciously, by what they read or see. Justice Felix Frankfurter had said that all judges, however stalwart, are eventually humans, and the delicate task of dispensing justice should not be made more difficult by irresponsible print.

There are several recent examples where media reporting has impacted judicial conduct. One instance was when a school expelled a Muslim teenager because he was sporting a beard. The Supreme Court, while dismissing the student’s petition, remarked that the “Talibanisation” of the country could not be permitted. There was widespread criticism of the court. It recalled its order and the matter was placed before another bench. In several important cases, the media has played a vital role in highlighting the failure of justice — for instance in the Jessica Lall, Priyadarshini Mattoo, Nitish Katara and the BMW hit-and-run cases.

But there are also examples of media sensationalism crossing the boundaries of fairness and decency. Take the Aarushi Talwar murder case. There were sustained, vicious leaks about her killing. Her alleged sexual conduct became a topic of discussion on several news channels. There was virtually a parallel trial in the media. The judiciary has to struggle to maintain the dignity of justice and its dispensation. At times, the line between generating public opinion and prejudicing an ongoing legal proceeding becomes blurred.

There has been a gradual arrogation of powers by judiciaries across the free world. The Indian judiciary is carrying out some functions that are traditionally considered to be the domain of the legislature and executive. When judges have such vast powers, it is difficult to expect people to be silent about the exercise of such powers. Just as the decisions of other branches of government attract criticism, important and controversial decisions of the courts will, too. The SC has held, in relation to powers of contempt, that the judiciary is not only the guardian of the rule of law and the third pillar, but the central pillar of democracy. If the judiciary is to perform effectively, the dignity and authority of the courts have to be respected and protected at all costs.

The need to respect the “authority and dignity of the court” is an idea borrowed from the British and derived from an era when the king used to decide cases himself. In England, the judges gradually took over the benches presided by the king. The majesty of the court has no basis in a democratic system, and contempt law should only be used to enable the court to function, not prevent criticism. Courts in the US have rejected the use of judicial contempt powers. Even in the UK, a far more liberal approach is applied.

In contrast, Indian courts have adopted a different approach. Consider Narmada Bachao Andolan vs Union of India. While criticising the SC judgment, Arundhati Roy wrote: “Most tribal people — or let’s say most small farmers — have as much use for money as a Supreme Court judge has for a bag of fertiliser.” In the contempt proceedings initiated against her, the court found that Roy had brought disrepute to it. But it did not pursue the matter. However, Roy led a demonstration outside the SC’s gate and as a result, contempt proceedings were initiated against her by five advocates. The SC found parts of her affidavit objectionable, in which she said: “It indicates a disquieting inclination on the part of the court to silence criticism and muzzle dissent, to harass and intimidate those who disagree with it. By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm.” The court found that she had committed criminal contempt, and she was punished with imprisonment for a day and a fine. This invited criticism against the SC.

Till recently, neither truth nor good faith were defences against the law of contempt. When Madhav Gadkari, editor of Loksatta, wrote about a judge that he was hard of hearing and that when he wanted an advocate to stop arguing, he would simply take off his hearing aid and tell the advocate he could go on arguing, Gadkari was issued a notice for contempt. The courts said that the truth could not be invoked as a defence. This erroneous position was rectified by a 2006 amendment to the Contempt of Courts Act, which makes truth a valid defence.

The law of contempt as described by Justice Krishna Iyer is a vague and wandering jurisdiction with uncertain boundaries and a suspect power to punish that lies in the hands of the prosecutor itself. Such a law, regardless of public good, may unwittingly trample upon civil liberties. Therefore, the powers of contempt must be exercised with deliberation and operated with utmost caution by the higher judiciaries. The courts must vigilantly protect free speech even in the face of severe criticism and dispense justice, which is a sacred duty demanding the highest levels of tolerance and detachment.

The writer, a former chief justice of the Delhi High Court, is chairman of the Law Commission of India. This article has been excerpted from a speech made at the Express Institute of Media Studies annual day on May 29.

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