Hyderabad: Judges who created a history of judicial uprightness have advised not to use this power. Never to be used. Lord Denning says in R. vs. Commr. Of Police (1968) 2 QB 150, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication.”

The Contempt of Court power is not to protect the fame or reputation of the judges or courts, but to secure the unfettered faith of the people reposed in the judiciary. In spite of all this criticism, the dignity of the court needs to be protected because the court is the only resort for a victim of atrocities by all-powerful despot governments. Parliament plans for the future. If the political government is good, sensible and governs according to Constitution, the citizen finds no need to approach the Courts. Independence of the judiciary should be respected first by judges, then by lawyers, critics, government, and the people. If faith in apex court collapses, nothing remains to call the Rule of Law.

Open hearing

There should be a consistent effort by the officers of courts, including the judges and lawyers, keep the institution independent and dignified. The trial of cases and hearing of appeals are open, which is age-old custom and convention of the judicial function. This is the transparency prescribed to judicial actions. They incorporate the public scrutiny as a great testing point of the integrity and accountable functioning of judicial institutions.  Courts can send persons to incarceration or to gallows. Their actions must be open to scrutiny. That is the purpose of public hearings. Very mandate of openness of hearings within it contains the freedom of people to scrutiny and raise critical voices against injustice, misgovernance, wrong order, or anything that might go not in the right direction. Lord Atkin says, “Justice is not a cloistered virtue. It must suffer the scrutiny and outspoken comments of ordinary men.”  If scrutiny is considered an embarrassment, the courts must suffer it. If outspoken comments of ordinary men hurt them, they should suffer that also.

Bhushan’s actions

Question is whether Prashant Bhushan defamed the Courts or obstructed the administration of justice? On one hand, the apex court is hearing the suo motu complaint of contempt against Bhushan, and on the other, a petition challenging the constitutionality is awaiting the court’s attention.

The Supreme Court is legitimately expected to have an open mind in hearing the constitutional challenge to the joint petition by the Hindu journalist N Ram, Public Interest Lawyer Prashant Bhushan, and former journalist and Union Minister Arun Shourie seeking invalidation of s.2(c)(i) of the Contempt of Courts Act 1971. This was later withdrawn.

Is it not violative of 19(a)?

The petitioners contended that the provision is violative of freedom of speech under Article 19 of the Constitution and effectively gags discourse on matters of public importance. “It violates the right to free speech and expression guaranteed under Article 19(1) (a). It is unconstitutional as it is incompatible with the preambular values and basic features of the constitution,” the plea said.

It was submitted that the provision raises a prior restraint on speech on matters of public and political importance by criminalizing criticism of court in sweeping and absolute terms. The offences of scandalizing the court is rooted in colonial assumptions and objects, and have no place in legal orders committed to democratic constitutionalism.

The Contempt of Court Act

The Contempt of Court Act provides for civil and criminal contempt. Civil contempt is defined under Section 2(b) as willful disobedience to any judgment, order or direction of a court or willful breach of an undertaking given to a court.

Section 2(c) deals with criminal contempt and attempts to punish publication of any material or commission of any act against courts.

This provision has three sub-clauses, which explain when such a publication or act could amount to criminal contempt.

First, if such publication or act scandalizes or lowers the authority of any court (sub-clause I), second, if it prejudices or interferes with any judicial proceeding (sub-clause ii) and third, if it interferes with or obstructs the administration of justice (sub-clause iii).

The petitioners have challenged only sub-clause (I), which criminalizes any publication or act on the ground that it scandalizes or lowers the authority of the court.

The provision, it was contended, has an extremely wide import and is incapable of objective interpretation. “For example, an interrogation by a traffic constable about whether the red beacon on the hood of a judge’s car was held to be contempt on the ground of scandalizing the court,” the petition stated.

It was argued that the provision uses vague terminology, whose scope and limits are impossible to demarcate. “In particular, the terminology ‘scandalizes or tends to scandalize’ invites subjective and greatly differing readings and applications. It violates Article 14, which demands equal treatment and non –arbitrariness,” the plea added.

‘Fools’ case

Justice Markendeya Katju, whose criticism was also subjected to process of contempt, wrote in a recent article about the tolerance of English judges to ‘personal insults’ heaped on them. He narrated an anecdote of renowned Advocate Fali Nariman’s meeting with Lord Templeman.

Justice Katju wrote:

“Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case (Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316)  `YOU FOOLS’. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majorities, why the Judges did not take contempt action. Lord Templeman smiled and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion”.

Not only that the judges were called fools with a big size headline of the tabloid newspaper, but their photos were published upside down.  The Judges did not mind it.  The expression ‘fool’ is considered as a matter of opinion and not as abuse. Everyone has a right to have an opinion and express it. It has nothing to do with the truth.

Katju illustrated what is contempt and what is not:

“If someone calls a judge a fool inside the courtroom and goes away, in my opinion it is not contempt, for he has not stopped the functioning of the court. …But if he keeps shouting in court the whole day, and despite warning does not stop, he is obviously not letting the court function, and this would be contempt”.

The nine-year-old comments and some recent tweets of Prashant Bhushan are recalled every day, being reviewed, and analyzed. Every reference is a repetition of comments which are now under judicial scrutiny. The controversy should have ended in a dignified manner for upholding the public interest.

M Sridhar Acharyulu

Madabhushi Sridhar Acharyulu was the Central Information Commissioner (2013-18) of Union of India, who delivered thousands of landmark judgments on Right to Information. Earlier, Madabhushi Sridhar served as Professor and Registrar at NALSAR University, Hyderabad . With double post-graduate degrees (LLM & MCJ) Ph.D. and LL.D., Sridhar continues as a columnist on socio-political happenings and policies of the state. He has written and published 40 books on Law and Journalism in both Telugu and English, 100 plus research articles and thousands of newspaper articles. Sridhar anchored a live phone-in TV weekly program to answer doubts on land records in 60 episodes of a TV channel in Hyderabad.

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