My Corner

Transparent Judiciary Need of the hour

For fear of contempt of court, grievances against the judiciary are either not aired or not redressed

img-april14-32CONTEMPT of court! These three words every judge would love to use whenever he feels that the person in front of him, or even if not physically standing in front of the judge, is going beyond the limits prescribed through law and numerous judicial pronouncements; these are the words every advocate, every official, every mediaperson and almost every person other than the judge truly fears.

In its broader understanding, contempt of court, often referred to simply as ‘contempt’, is the offence of being disobedient or disrespectful to a court of law and its officers in the form of behaviour that opposes or defies the authority, justice, and dignity of the court. It is said to manifest itself in wilful disregard or disrespect for the authority of a court of law, which is often termed as illegal behaviour because it does not obey or respect the rules of a law court.

As explained in the People’s Law Dictionary by Gerald and Kathleen Hill, “there are essentially two types of contempt: 1) being rude, disrespectful to the judge, or other attorneys, or causing a disturbance in the courtroom, particularly after being warned by the judge; 2) wilful failure to obey an order of the court.”

Two ways to overcome thecurrent situation are, firstly,to make the laws of criminal contempt moreliberal and, secondly, to getthese complaints and grievances monitored andinquired into in atransparent manner

In India, contempt of court is regulated by the Contempt of Courts Act, 1971. Section 2(a) of the Act says contempt of court means civil contempt or criminal contempt, while Section 2(b) says civil contempt means wilful disobedience of any judgment, decree, direction, order, writ or other process of a court, or wilful breach of an undertaking given to a court. Section 2(c) says 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) scandalises or tends to scandalise, or lowers or tends to lower the authority of any court; or (ii) prejudices, or interferes with or tends to interfere with the due course of any judicial proceeding; or (iii) interferes with or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

The issue of civil contempt has not elicited much discussion because almost every person tends to believe that this is a basic necessity for proper and smooth functioning of every judicial system. It is well-understood that if there is no authority with the court to punish an authority for wilful disobedience of its orders, the entire judicial structure and system will collapse because the implementation of its order can be done only through the executive arm of the governance. Thus, something said in Noorali Babul Thanewala vs KMM Shetty by the Supreme Court—“Breach of an undertaking given to a court by a person in civil proceedings, on the faith of which the court sanctions a course of action is misconduct amounting to contempt of court”—is what most people would tend toagree with.

The issue becomes contentious in the case of criminal contempt. The problem here is that every judge is also an individual. As a judge, it is theoretically expected and believed that he has no religion, caste, personal thinking, political affiliations, personal grudges, likes and dislikes, favourites, affections and tilt of any nature for or against anything. This makes the judge a completely neutral entity. But, in practice, a judge belongs to a family, has a caste, creed, religion, needs, wants, inclinations, likes, dislikes and so on.

What it means is that a judge, though theoretically neutral in his operations, naturally has a reasonable possibility of getting oriented to certain things even if they might not be exactly correct, while, at the same time, acting against certainother things even if they areotherwise correct.

It also needs to be seen that with changing times, the isolation of a judge from things around him has thinned and thus a judge today is much more exposed to persons and situations around him than the judges of previous days. Thus the notions and opinions of judges today are much stronger than before. The danger of this situation is too obvious—the possibility of the judgment being affected by these personal notions, in preference to the facts on record, definitely becomes higher.

In such circumstances, the other natural corollary is the increase in the disgruntlement of the affected parties. If it seems to one of the parties that the judgment was based not on facts or figures but on any such extraneous reason like caste, creed, religion, region, likes and dislikes of the judge, the stature of the advocate and his alleged proximity to the judge, or the alleged political affiliations the judge has been regularly showing in his judgments and so on and so forth, then he is bound to feel bad about the judgment. He is thus bound to feel personally aggrieved with the judge and also feel like commenting on the judge as an individual.

These situations are becoming a challenge for the Indian judiciary. Though Section 3 of the Act says that innocent publication and distribution of matter is not contempt, Section 4 says that fair and accurate reporting of judicial proceedings is not contempt and Section 5 says that fair criticism of judicial acts is not contempt, the fact is that, unfortunately, more and more examples are found where the affected party has such a strong opinion about the conduct of the judge that he has a strong impulse to criticise the conduct, but stays away from doing so merely because of the fear of contempt of court.

TO me, it seems that such a thing cannot go on because the judiciary is one institution which runs solely on moral authority and not on any outside force. People go to the courts because they have faith in them. Hence, two ways to overcome the current situation are, firstly, to make the laws of criminal contempt more liberal and, secondly, to get these complaints and grievances monitored and inquired into in a transparent manner.

If such an open and transparent methodology is adopted where voices are not choked through fear of contempt of court, it will increase faith in the judiciary. At the same time, it will also help root out the evils allegedly creeping into the judiciary, so that the bad eggs are not able to take advantage of the powers of contempt of court and an open, transparent and accountable atmosphere in tune with the needs of today gets created inthe judiciary.

At the same time, it will also curb the present tendency of certain people to bring unsubstantiated charges against judges, which anyway is creating bad impressions about this most respectable institution. False, fabricated and baseless allegations and complaints will not only get exposed once and for all, they will also put the judiciary and the concerned judges in a much better and brighter light. Many of the latter are getting their pure names sullied, because of the alleged improprieties of a few judges, whose cases do not come up due to the fear of contempt of court.

VOL. 8, ISSUE 1 | April | 2014

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