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Tuesday, November 13, 2007

Contemp of court

Contempt of court and the truth
The Hindu
India
Anil Divan
29 October 2007
In 2002, there were adverse comments widely reported in the print media in Karnataka regarding the private behaviour of some sitting judges of the High Court. The High Court suo motu commenced contempt proceedings against several publications for scandalising the Court and lowering its authority. The matter reached the Supreme Court and an agonised Chief Justice Khare while criticising the media for not disclosing their sources stated that “I will reward the media if they come out with the truth”… “I personally believe that truth should be a defence in a contempt case.”

Broadly, criminal contempt means either scandalising the Court or prejudicing a fair trial or interference with the administration of justice.
In the “Mid-day” case, a bench of the Delhi High Court without considering the defence of truth has imposed a severe sentence of four months imprisonment on the media for scandalising the Court. The case is now pending in the Supreme Court and raises far-reaching questions of public law.

The law as laid down by the Supreme Court following earlier cases was that justification or truth was no defence against summary proceedings for contempt when words were used which scandalised the Court or lowered its authority.

Parliament has now intervened and radically changed the law by Act 6 of 2006 by amending Section 13 of the Contempt of Courts Act, 1971 which states — “Notwithstanding anything contained in any law for the time being in force ... (b) the court may permit, in any proceedings for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.”

The Statement of Objects and Reasons to the Bill states that the amendment “would introduce fairness in procedure and meet the requirements of Art. 21 of the Constitution.”

When the provisions of the Bill were discussed in the Lok Sabha, Law Minister H.R. Bharadwaj said “Suppose, there is a corrupt judge and he is doing corruption within your sight, are you not entitled to say that what you are saying is true? Truth should prevail. That is also in public interest.”

The National Commission to Review the Working of the Constitution (NCRWC) headed by the distinguished former Chief Justice of India, M.N. Venkatachaliah, in its report stated “Judicial decisions have been interpreted to mean that the law as it now stands, even truth cannot be pleaded as a defence to a charge of contempt of court. This is not a satisfactory state of law. … A total embargo on truth as justification may be termed as an unreasonable restriction. It would, indeed, be ironical if, in spite of the emblems hanging prominently in the court halls, manifesting the motto ‘Satyameva Jayate’ in the High Courts and ‘Yatho dharmas tatho jaya’ in the Supreme Court, the courts could rule out the defence of justification by truth. The Commission is of the view that the law in this area requires an appropriate change.”

Chief Justice E.S. Venkataramiah, whose judgments on press freedom are liberal and well known — gave an interview to journalist Kuldip Nayar on the eve of his retirement. He stated “the judiciary in India has deteriorated in its standards because such judges appointed as are willing to be ‘influenced’ by lavish parties and whisky bottles.” … “in every High Court, there are at least 4 to 5 judges who are practically out every evening, wining and dining either at a lawyers’ house or a foreign embassy.” The columnist further reported that “Chief Justice Venkataramiah reiterated that close relations of judges be debarred from practicing in the same High Court.”

At the instance of a leading advocate, a petition was filed against Justice Venkataramiah bringing this interview to the notice of the Nagpur Bench of the Bombay High Court for instituting contempt proceedings against him for scandalising the entire judiciary. The Division Bench observed that the entire interview appeared to have been given with an idea to improve the judiciary and it was not a fit case where suo motu action was called for and dismissed the petition on merit.

International standards and laws of other democracies would be informative and enable us to arrive at the right standards. Professor Michael Addo of the University of Exeter has collected the views of many European experts in “Freedom of Expression and the Criticism of Judges.”

In European democracies such as Germany, France, Belgium, Austria, Italy, there is no power to commit for contempt for scandalising the court. The judge has to file a criminal complaint or institute an action for libel. Summary sanctions can be imposed only for misbehaviour during court proceedings.

In Belgium, the media have been very critical of the functioning of the administration of justice and have strongly criticised individual judges. This tension between the press and the judiciary led to a seminal pronouncement of the ECHR (European Court of Human Rights). Leo De Haes and Hugo Gijsels were editor and journalist of a weekly magazine Humo. They published five articles in which they criticised judges of the Antwerp Court of Appeal in virulent terms for having awarded custody of children to their father although there were serious allegations against him of incest and abuse of children. The three judges and the Advocate-General instituted proceedings against Haes and Gijsels seeking compensation for damage caused by the defamatory articles. The Tribunal of first instance held against the journalists and the same was affirmed by the Brussels Court of Appeal and on further appeal by the Court of Cassation. The journalists applied to the ECHR and succeeded. It was held that though courts had to enjoy public confidence and judges had to be protected against destructive attacks that were unfounded, the articles contained detailed information based on thorough research, and the press had a duty to impart information and ideas of public interest and the public had a right to receive them It was held that there was a breach of Article 10 of the European Human Rights Convention which guaranteed freedom of speech and expression and there was also a breach of Article 6(1) (fairness of trial) because the Tribunal refused to study the reports of professors relied upon by the journalists. The journalists were awarded damages and costs of over Francs 964000 against the State. The case shows that there is no summary right of committal for contempt and the judges adopted proceedings for libel which ultimately failed.

Professor Addo concludes in relation to Art. 10 of the European Convention of Human Rights that although all countries in Europe had an offence relating to the criticism of judges on their books only a few continue to punish for this offence and there is an emerging common European standard.

In the U.K., the offence of scandalising the court has become obsolete. The judiciary was vigorously criticised by the English press in the Spy Catcher case. Peter Wright a former intelligence officer wrote his memoirs but the Court of Appeal injuncted the publication of the book in England. The House of Lords, by a majority of three against two confirmed the interim injunction and enlarged it. The Times of London came out with a blistering editorial which said: “Yesterday morning the law looked simply to be an ass. Those who regretted this fact were waiting with quiet confidence for the Law Lords to do something about it . . . But yesterday afternoon the law was still an ass ... In the hands [of] Lords Templeman, Ackner and Brandon (the majority who ruled for the gag order) it had become unpredictable and wild seemingly responsive only to autocratic whims.”

The Daily Mirror came out with a front page caption “You Fools” and published the photographs of Lords Templeman, Ackner, and Brandon upside down.

In the United States, contempt power is used against the press and publication only if there is a clear imminent and present danger to the disposal of a pending case. Criticism however virulent or scandalous after final disposal of the proceedings will not be considered as contempt. The U.S. Supreme Court observed — “the assumption that respect for the judiciary can be won by shielding judges from published criticism wrongly appraises the character of American public opinion. For it is a prized American privilege to speak one’s mind, although not always with perfect good taste on all public institutions ... And an enforced silence, however, limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt much more than it would enhance respect.”

Our Parliament, by the recent amendment where justification or truth can be bona fide pleaded in the public interest has attempted clearly to bring our law in line with European and American standards.

Truth was treated as an ‘untouchable’ while exercising contempt jurisdiction for scandalising the Court. Parliament has now opened the doors of the temple of justice for the erstwhile untouchable.

In the case of Veeraswami, a former Chief Justice of Madras High Court, the Supreme Court observed: “A single dishonest judge not only dishonours himself and disgraces his office but jeopardises the integrity of the entire judicial system.”

The contest is between truth and its suppression. The choice then is between the plea of truth to expose judicial misconduct and the attempt to stifle such publication by the use of the contempt power. The Delhi High Court through its “Mid-day” judgment has catapulted the issue nationally and internationally.

This article was published in The Hindu on 29 October, 2007. Please read the original article here.

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