Judicial Immunity

The Law of Contempt in certain matters. This school of thought would urge that any statement or publication that a Judge received a bribe or that he is incompetent should not be actionable in contempt and to that extent at least Judicial Immunity must be curtailed. These protagonists probably urge this on the need for correction and that unless such criticism is allowed to be made there will be no remedy open to the public. They would urge ‘Justice is not a cloistered virtue.’ It must be bold free and subject to public scrutiny and that therefore no Court should fight shy of criticism. But it is forgotten that once this is allowed there will be no limit to such attacks. The cure may be worse than the disease. It was Viscount Jowitt the Lord Chancellor of England who expressed on the birth of our new Constitution. “In any Constitution which you are going to have in India you must see that your Judges are absolutely independent of the Executive........ If you want to get a Judge you must have the best possible Judge you can get.” This answer gives the clue to the query of the U. P. Lawyers’ Conference. Instead of allowing criticism on the competence of a Judge or as to his judicial honesty, it is better if public criticism is turned towards the tone of recruitment to the Judge’s post. To select bad Judges and then plead for freedom to criticise them is a travesty of things. “Human dignity always tried to preserve its moral values by projecting a halo of solemnity to Courts of Justice. They were verily considered as Temples of Justice where the Judge was the High Priest and truth was the incense.....The reverence and the awe-inspired by such tribunals always kept up the majesty of law and induced implicit faith in the litigant who reposed in the altar of justice a confidence similar to the Divine Dispensation of Justice.” Author’s (VGR) Law of Contempt Page 1 (M. L. J. Publication). So it is of the utmost importance that the dignity of Courts of Justice must be preserved at all costs. Unless Judges are given adequate immunity the wonderful and magnificent judicial structure we have in India will crumble. We should not reduce these seats of Justice as debating matters. The independence of a country is always measured by the strength of its judiciary. So our attention must be revetted in selection of the best material of our Judges’ seat. That is almost our sacred duty and if this is done without fear or favour, caste or colour then one may rest assured there will not be a chance for the existence of any incompetent Judge or a dishonest Judge. Emoluments of the subordinate Judges or Magistrates may also be adequately raised to attract the best kind of men. Recruitment on the lines of the Indian Administrative Services (1. A. Judicial) on the basis of a competitive examination will give us efficient Judges. Once such Judges are selected we must keep within the law by respecting their judicial acts. Any aspersion of their honesty VGR’s Law of Contempt pp. 272 and 338 Emperor v. Marmaduke Packthal Editor of the Bombay Chronicle, A. I. R. (10) 1923 Bom 8 : (24 cr. L. J. 289) or competence In the matter of D. S. Bukhari, A.I.R. (14) 1927 Lah. 610 : (28 Cr. L. J. 727 (S. B.) Government Advocate of Burma v. Saya Sein, A. I. R (17) 1930 Rang. 124: (31 Cr. L. J. 397) will be per se contempt. In re Hadi Hussein v. Nasiruddin, A I. R. (13) 1926 ALL. 623 : 48 ALL. 711 (S. B.) a libellous attack on the Court and Counsel was indulged in a pamphlet in which the members of the judicial Tribunal were represented as having received illegal gratification. It was held to be gross contempt definitely tending to interfere with the course of Justice and undermining the prestige of the Seat of Justice.  In State v. Brahma Prasad, A. I. R (37) 1950 ALL. 556 : (1950 A. L. J. 458 F B.), VGR’s Law of Contempt p. 160 it was canvassed that in view of Art. 215 of the new Constitution, the High Court cannot punish contempt of a Subordinate Court. In that connection their Lordships held that the High Court retains its inherent power to deal with contempt and the power given to it under the Contempt of Courts Act and that the said Act is preserved and not abrogated by ths Indian Constitution by virtue of Art. 19 (2). In the case under reference the District Bar Association, Muzzafarnagar, passed a resolution giving it as their considered opinion that certain Judicial Officers by name are ‘‘thoroughly incompetent in law, do not inspire confidence in their judicial work, are given to stating wrong facts when passing orders and are overbaaring and discourteous to the litigant public and the lawyers.” Their Lordships held that this criticism went beyond reasonable criticism or expostulation and tended to bring the Magistrates into contempt and lower their authority. ‘‘It was suggested that members of the Bar have some undefined right in the interests of proper administration of justice to animadvert; on defects therein which come to their notice. We do not think this is so. Their duty in this respect may well, we think, be higher but their rights, like those of the press, are no more—and no lass—than those of the ordinary citizen.”  In another case ‘In the matter of an Advocate of Allahabad’ A. I. R. (22) 1935 ALL. 1 : (151 I. C. 955), the Leader published an article under title ‘A scandalous situation —the Bar Council Election’ wherein it was alleged that “it was amusing to note that when a comparatively undeserving lawyer is raised to the Bench—which is fairly a frequent occurrenee in our judicial history .... etc.” Sir Tej Bahadur Sapru ably argued that as the comment was general and not against a particular Judge there was no contempt. Their Lordships, however, held that an action for contempt lay even where the aspersion is not against a particular Judge or Bench in connection wish a particular case. The test is whether it tends to lower the dignity and prestige of the High Court. This decision would indicate how zealous our Courts are in safeguarding the seat of Justice from irresponsible attacks. What then is the remedy if a Judge falls a prey to inducements ? Such a Judge can be removed after a proper enquiry by his superior officer, under the rules governing the Judicial Servants. To make such matters as one of ordinary criticism by publication or otherwise is indeed a dangerous phenomenon. In the flush of the newly-won independence of India many of our politicians and M. L. As. took to interfering with the administration of justice by writing letters to Judges to drop certain proceedings. (Emperor v. Gajadar Prasad, A. I. R. (26) 1939 ALL. 247: (181 I. C. 558), District Magistrate of Sultanpur v. Ramjas Yaduva A. I. R. (27) 1910 Oudh 178: (41 Cr. L. J. 233)) or advising them in their judicial work. They were all ad judged as offending against the law of Contempt. It is, therefore, very necessary that the public, particularly the legal profession, should be zealous in guarding the seats of Justice from all such attacks or interference. May be under our present system of recruitment some of the Judges may not be up to the mark. But the remedy is not to attack them. The remedy lies in making the recruitment to the Judge’s post as a sacred trust whore the very best alone can be chosen, In no other country England or America will such attacks on the honesty or competency of a Judge be tolerated. It is a gross contempt (Redding’s case 2 BOC Abr. Tit Courts (E), Fuller’s case (1609) 12 GO Rep 41, VGR’s Law of Contempt pp. 117 & 272.) Similarly India must be proud of having the same standard of policy. It will indeed be suicidal if we lower the prestige of our own Judiciary. If we have the guts, let us concentrate on fighting the issue of selection of Judges which certainly is worthwhile. Let us educate public opinion in this direction rather than amend the Law of Contempt and take away oven partially the immunity offered to our Judges. The most priceless jewel India now possesses to safeguard public or private rights is its grand edifice of judicial system built on its ancient traditions and British jurisprudence. The writer would therefore welcome legal opinion on the above matters and invites the same for evolving the right solution.

Author Name: V G Ramchandran