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The dignity of law

A British tabloid once published an inverted photo of two judges of the appeals court in England with the caption: "Old fools have done it again."

No contempt action followed. Nor was there any outcry from the bar. One of the two judges, however, said in explanation that they were old was a fact and whether they were fools was a matter of opinion.

This incident is in sharp contrast to the excessive sensitivity that judges in India have developed. They have become too protocol-minded. They want beacon lights on their vehicles. In one state, the demand is for bigger cars. In another, an objection was raised after a party why judges had been seated at table number 5 and not 3.

There are many instances where judges have taken umbrage to even light-hearted remarks. Contempt proceedings have sometimes been initiated to satisfy a judge's ego. What it all boils down to is self-aggrandisement, a sense of power.

This defeats the very purpose of contempt. Obstruction to the administration of justice is certainly contempt. Questioning judicial activism is not. Parliament members have often complained from several platforms that the judiciary is occupying the executive's territory. The principle behind the contempt law is that the judiciary is an institution essential for the maintenance of the rule of law. Any act that undermines confidence in the judiciary will subvert the rule of law itself.

But surely judges are not expected, much less required, to admit suits for defamation every time somebody files a petition saying the court has been denigrated. It has to ensure that the petition filed is not based on frivolous allegations. Otherwise, it is bound to evoke resentment.

More and more social workers and intellectuals who speak against the system or the court's fiats are being driven to the wall. Their protest against a judgement should not be construed as contempt of court. The courts should act with circumspection. If the "contempt" is not deliberate, only technical, it should be overlooked. "An unbalanced administration of justice," as former Supreme Court justice P B Sawant says, "is a negation of the rule of law and, therefore, of democracy."

The larger question that needs to be answered is, why do courts entertain a petition that, on the face of it, is not true? And what action should the judges take if they find that the petitioner has made false charges and concealed facts?

Democracy implies the rule of law, not of petitioners. The judiciary has not only to administer justice equitably and justly, but also to protect individuals when falsely implicated.

My purpose is not to cast aspersions on judges or courts. People hurt themselves when they hurl stones at the temple of justice. To hurt the court is to hurt society. The denigration of judges can only lead to the lessening of an institution, which provides strength to the democratic system. Judges cannot defend themselves against the abuse hurled at them. "Contempt" is their only shield.

But it does not mean they should object to even peccadilloes. The dignity of law cannot be pulled down by slights that can easily be ignored. The more courts join issue on such things, the more they will involve themselves in spectacles that are bound to be messy.

Take the media. Its freedom means the freedom of the people to know all developments of public importance, including the administration of law and justice. The comments and criticism of the errors of facts and law should not be prevented in the name of contempt. So long as a statement, however strongly worded, is made in good faith, it should not amount to contempt.

Disobedience of court orders relating to publication of proceedings may be defiance of its authority. But should the court issue orders that amount to gagging the press? A few days ago, some of us went to court against an order, which asked the press not to publish the proceedings of a particular case. We did not associate ourselves with the merits or demerits of the case. But we did not want the gag order to go unchallenged. It was a matter of principle.

Today, it is one case. Tomorrow it can be another. Our purpose was to defend the right to publish. I believe that the freedom of expression, guaranteed by the Constitution, allows me to tell readers what transpires in courts. Any check is a check on my right to inform.

The media is an institution of the civil society while the judiciary is an institution of the political society. There is no conflict between them. In fact, the media is the first estate, not the fourth, since it criticizes and comments upon the acts of omission and commission of individuals and institutions belonging to society.

Putting restrictions on the media, however temporary, can be dangerous. They stop it from performing the role of educator and watchdog. The press has a right to report court proceedings, a right to remain present in court and take notes.

I think there should be a review of the law of contempt. The Parliamentary Standing Committee on Home Affairs and Law should do so. It should suggest how to do away with frivolous and motivated petitions.

The other device may be to constitute an internal, independent machinery to deal with the complaints of improper conduct of the judges. In some countries, such internal fora exist and they have been working effectively. India could take a leaf from their book.

Kuldip Nayar