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A judge above contempt

Fali S. Nariman

The speech delivered by Justice Markandey Katju, chief justice of the High Court of Madras, on the first anniversary of the inauguration of the Madurai Bench (July 24) was like a breath of fresh air. He said that it was a fundamental principle in democracy that the people are supreme, and that all authorities — judges, legislators, ministers, bureaucrats, and so on — were servants of the people, and should be proud to be servants of the people. He did not stop there. Since the people are our masters, he went on, and we are their servants, surely the masters have a right to criticise us and take us to task if we do not function properly; so we should not take offence when the people criticise us; our authority rests on public confidence, and not on the power of contempt.

If William Shakespeare were alive (in my opinion he and his plays are eternally alive) he would have gushed: “A Daniel come to judgment! Yea, a Daniel! O wise judge, how I do honour thee!”

The power of contempt that Chief Justice Katju spoke about was a relic that has survived our colonial past when it was as important for Indians to see “the awful majesty of the law” administered mainly by British judges, as it was to hear their ponderous verdicts. If anyone wrote or said anything derogatory about a judge of a superior court (which that judge himself ruled was derogatory) that person was guilty of contempt and could be marched off to prison for up to six months.

The origin of the branch of law known as “scandalising the court” was as controversial as was its introduction into British India. It originated from a celebrated dictum of one Justice Wilmot in his judgment of the vintage year 1765 in the Wilkes Case — a judgment which was never actually delivered, but meant to be delivered, and later published by Justice Wilmot’s son when his father’s papers were edited! It was a judgment reserved after argument, and when ready to be delivered it was discovered that the writ against John Wilkes was incorrectly titled, and since at that time an amendment of the writ — unless consented to — could not be permitted, the case had to be abandoned! This is the somewhat dubious ancestry of that part of the law of contempt known today as “scandalising the court”: it is based on a judgment never delivered in a case — a case which had already abated! And remember it was a case against a journalist: the bete-noir of all judges all over the world. Our Constitution makes freedom of speech and expression a fundamental right, and the exception to it is the law of contempt — not any law of contempt — but only reasonable restrictions in public interest in such a law. The Contempt of Courts Act does not say that truth cannot be a defence but courts have categorically said, “No, it cannot be a defence.” Judges have the last word as to who or what “scandalises” them.

If it is part of the law as is now understood that a person commits contempt even if he truthfully publishes as a fact that a particular judge (God forbid and only hypothetically speaking) has accepted a bribe for giving a judgment in a party’s favour — then I would submit that such a law would be void as imposing unreasonable restrictions on the freedom of speech and expression: the judge who took the bribe would be false to his oath, to do justice without fear or favour; and it would be absurd to say that although Article 124(4) provides for the removal of a judge for “proved misbehaviour”, no one can offer proof of such misbehaviour, except on pain of being sent to jail for contempt of court.

This is a glaring defect in our judge-made law that needs to be remedied —hopefully by the judges themselves; if not, reluctantly, then by Parliament. The importance of the speech of Justice Katju is that it is perhaps for the first time in my professional living memory of 55 years that a judge has introspected and has publicly come up with the right answer — it is a step in the right direction.

In England, too, the judges have done it by themselves, making parliamentary intervention wholly unnecessary. I recall the visit to India of Lord Templeman some years ago with a British team of judges and lawyers to participate in an annual feature called the Indo-British Legal Forum. Lord Templeman was then the senior-most sitting judge in the Judicial Committee of the House of Lords. One of the topics we discussed at the Forum was “Freedom of the Press including Contempt of courts”. It was shortly after the controversial 1987 decision in the Spycatcher Case, which attracted worldwide attention. Lord Templeman believed (and said so in his judgment) that Peter Wright who wrote Spycatcher, and had it published in the UK, should be held fast to the undertaking given by him — which was not to publish confidential information obtained by him in his capacity as a member of the British Secret Service, not withstanding that the information had, with lapse of time, percolated into the public domain. Two of his colleagues (in the House of Lords) agreed with him — which put Lord Templeman in the majority.

The Press (the “free Press”) not only criticised the judges but held them up to ridicule; the Daily Mirror published photographs of all three judges (Templeman included) and below the photograph was written in capital letters “Old Fools”. That picture hangs outside my study only to reassure me that judges — like lawyers — are as fallible as they are mortal. Well, I pointedly asked Sydney Templeman why no contempt proceedings were initiated against the Daily Mirror. And what has always endeared him to me was his answer. He smiled, and without a trace of bitterness, said that judges in England did not take notice of personal insults, uttered without malice. After all, he said, he was old, and though he believed he wasn’t a fool, someone else who sincerely thought he was, was entitled to his opinion. And then his eyes lighted up. “But if they (he meant the editor and publisher) had said we were dishonest or not true to our conscience, I would have promptly hauled them up”. I said to myself: here’s a Daniel-come-to-judgement — a judge who was so conscious of his enormous power that he knew when not to use it; a self-restraining quality which (I believe) greatly enhances the prestige of all judicial power. I would respectfully commend this attitude to all judges, present and future — both in the high courts and in the Supreme Court.

The writer is an eminent jurist