Monday, 28 July 2014

It’s time to amend law on contempt of court

The present law of contempt of court in India is a hangover of the original law on this subject in England. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.
But whence comes this dignity and authority of judges? In England, in feudal times, it came from the king, who was the fountain of justice, and would often decide cases himself. Later, when he had many other duties, he delegated judicial functions to his delegates, who were called judges. Thus, in a monarchy, the judge really exercises the delegated function of the king, and for this he requires the dignity, authority and majesty which a king must have, to secure obedience.
In feudal times, the king was supreme, and the people were his subjects. They could not criticize him, and such criticism was punishable.
In a democracy, however, this relationship is reversed. Now it is the people who are supreme (see Rousseau’s ‘Social Contract’), and all state authorities, including judges, are nothing but their servants.
Hence in a democracy there is no need for judges to vindicate their authority or display pomp and majesty. Their authority comes not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and learning.
This view is accepted now even in England. As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.
“Justice is not a cloistered virtue,” said Lord Atkin. “It must suffer the scrutiny and outspoken comments of ordinary men”.
In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “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”.
Sometimes an upright judge is unjustifiably criticized. The best course of action for such a judge is to ignore baseless criticism (but pay heed to honest and correct criticism). He should have broad enough shoulders to shrug off baseless comments without getting perturbed or influenced.
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 majority, 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.
In Balogh vs Crown Court at Albon (1975) AC 373, the defendant told the Judge “You are a humourless automaton. Why don’t you self destruct?”. The judge smiled, but took no action.
Now coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’.
He quoted Bentham, who said that when a dog does something nasty we beat him for it. Similarly, the laws in England become known only when someone is punished by the courts. The same is true about the law of contempt in India, and thus it is a standing threat to freedom of speech.
To illustrate, in Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathized with zamindars and bank magnates.
He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court” and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. Nariman asked whether if such a comment had been made by an ordinary man the court would have taken no action.
Moreover, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1770 2015). Where is the certainty or consistency in the law ?
We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 129 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled. In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.
It follows that the contempt power cannot be exercised because people are criticizing a judge. It can only be exercised if someone makes the functioning of the judge impossible eg if while a judge is hearing a case someone jumps on to the dias and tries to run away with the court file, or if he attacks or threatens a witness.
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. After all disputes in society have to be adjudicated, and judges must decide cases to justify payment of salaries to them.
I submit that the time has come now for Parliament, the judiciary and others concerned to take a fresh look at the law of contempt of court in the light of what I have said above, and bring about necessary amendments.

(Published in The Times of India on 28/07/2014)


  1. Sir, I want your views on this. Is it time to bring Jury system back so cases can be heard quickly and disposed of.?

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  3. I think rather than reinvent the wheel,we need to study the judicial system around the world,and bring in the best part ices.However feel that we must trust somebody otherwise if we become suspicious and start levying unfound accustions,there will be chaos in this country.

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  5. no he not like a virus mr anon. he is like a hero of 3 idiots, but i think u mr anon is like lala (means kanhaiya lal) of of film mother india,

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    1. Mr. Katju, opened himself up for criticism by writing Blogs. That's what is called divine courage!. Anonymous are like spoiled Eggs. Stay away from these, wonderful period of mankind where America gave this internet, literally free to you!.

  7. But you are still like Chatur of 3 Idiots :-)

    The films and actors you are quoting is of Mr.Katju's time :-) so who really you are Mr. Unknown Katju :-)

  8. Justice Katju, I wish to bring into light a few things as follows:
    1) s.1 of the Contempt of Courts Act,1971 says "all courts in India have the powers of contempt". But as far as the contempt Jurisdiction is vested only with the higher courts (HC & SC).

    2) If am not wrong there is a section in the Act under which a District Judge can refer the matter of contempt to the HC.

    3) In this connection years ago i read a Judgment from the SC that the subordinate courts can punish such contempt under IPC.

    Whats it really?

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  10. shut up, mr katju bannes the idiots like u

    1. Hold on buddy, dirt mongers begets boot. The person whom ur referring is a respectable judge and a citizen of this country. You cannot speak wat ever u want. If u have sumthing counter his arguments like a gentleman. Request choose ur words in public domain.


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  12. kya kya onger monger bak raha hai tu pillay, chup kar, mr katju ka sabhi aadar kartay hain,tu mat padha, angreji may mat bhaunk

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  14. Oh, I thought the readers of Blog are intelligent. When I see their posts, most of these people are trash. That's the result Congress ruling India for 5 decades. Even my Grand father had better sense, decency and respect for even animals, and more for people. Here its like America gave free internet to India, as like garland given to monkeys.

  15. Well said Sir, “said Lord Atkins - "It must suffer the scrutiny and outspoken comments of ordinary men"”. Often corrupt judges are high headed and honest one with humility. Corrupts do not like criticism and take shield of CONTEMPT rule. As time has changed, a SHO of police is served with capital punishment, ministers get jail, babus get suspended, doctors get punished for wrong operations, but we never heard a judge get punished for wrong judgment. WHY SHALL A ERRING Judge NOT BE PUNISHED? This rule must be scraped as it is redundant. Here is a fit case for public scrutiny and demanding stern punishment to a JMFC (Mr. Basco Roberts) at Panaji, as he did 5 blunders in NI-138 case (534/2007/C). (i) He counted wrongly 32 days from 16 Oct. to 16 Nov. to be within 30 days of statuary period (1999 Crl. L.J.1822 SC) for filing case. (ii)accused never received demand notice as he was abroad for two years (DC_2009_STPL(DC)_1138 _SC. pdf), (iii) undated security check claimed for unaccounted cash transaction not declared in tax are not in purview of NI-138 (AIR 2008 SC 1325), (iv) undated letter was used as liability (SG Rhagae said - undated documents have no legal value; SC order 2011; AIR 2000 SC 2676) which was already subject matter of a finally settled consumer forum case at national commission, and (v) now raking a settled matter again was being RES JUDICATA. He ordered 6 months jail to an innocent, who was on governmental deputation for two years, check bounced and process was issued in-absentia. When on wrong counting elections are countermanded, why not wrong judgments be scrutinized on suo moto cognizance by senior courts? Said JMFC is subject to be punished under following rules: (i) U/s 16 of Contempt Act, a judge can also be held guilty of Contempt of his own court in the same manner as any other individual is liable under the Contempt Act;- The Hon’ble Judges have, inter alia, taken the Oath, “ .that I will do justice without fear or favor and I will uphold the Constitution and the laws.” And it is apparent on the face that Hon’ble JMFC has violated Article 14 of the Constitution in the instant case, punished an innocent in a false case stated in absentia, and hereby he is deceitful with Constitution and the laws of India. (ii) U/s 199- False statement made in order which is by law receivable as ground for punishment: “Whoever, …. any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence”. Instant JMFC has willfully & intentionally counted wrong 30 for 32 days to strengthen 4 ingredients of NI-138. No action done is without a motive, and in instant case complainant and JFMC are saala-bahnoi (grand BIL). In front of session court judge complainant demanded 6 lakhs for a check of Rs. 2500/- for compounding, which is openly extortion of 1 lakh each for monthly jail in order given by saala. Said JMFC does not deserve to continue any more, as he over-ruled section 360 of probation act 1958 ordering 6 month jail to an innocent. Higher courts must take a suo moto cognizance to remove him from services at the earliest.