Right of Press to Criticize the Courts

Justice Frankfurter of the United States Supreme Court stated, "Judges as persons or courts as institutions are entitled to no greater immunity from criticism than other persons or institutions."  After posing the above question, Mr. Justice Krishna Iyer, in his judgment delivered in the case of S. Mulgaonkar, AIR 1978 SC 727 desisted from deciding the same. He, however, did express himself in favour of harmonising the freedom of Press and the law of contempt by saying, "We must evolve a know-how for the co-existence of free speech and free justice in tune with the Preamble and Art. 19." Justice Krishna Iyer in his judgment brought the issue into a sharp focus thus : "The issue is one of the gravest moment for free peoples and to choose between the cherished basics of free expression and fair hearing is a trying task." Then he went on to quote an eminent United States Judge who, while dealing with the same issue, had said,"................curtailment of Press freedom is a serious matter..........the assumption that respect for the judiciary can be won by shielding Judges from public criticism wrongly appraises the character of American public opinion .For it is apprized 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 the respect."  Former Chief Justice of India, Justice Gajendragadkar, (AIR 1965 SC 745), sounded a warning to the Judges anxious to invoke contempt power in defence of their honour in a judgment written on a special reference in 1965 thus :  "Wise judges never forget that the best way to sustain the dignity and status of their office is of deserving respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach and by the restraint, dignity and decorum which they observe in their judicial conduct."  It was in the same context that Justice Krishna Iyer declared, "If judges decay, the contempt will not save them and so the other side of the coin is that the judges like Caesar's wife must be above suspicion..........Even so, if judges have frailties — after all they are human — they need to be corrected by independent criticism. If judicature has serious shortcomings which demand systematic correction through socially oriented reform initiated through constructive criticism, the contempt power should not be an interdict. All this, far from undermining the confidence of the public in courts enhanced it and, in the last analyses, cannot be repressed by indiscriminated resort to contempt power."  In another case Justice Krishna Iyer again said AIR 1974 SC 710 that "vicious criticism of personal and administrative acts of judges may indirectly mar their image and weaken the confidence of the public in the judiciary but the countervailing good, not merely of free speech but also of greater faith generated by exposure to the actinic light of bona fide, even if marginally over zealous, criticism cannot be overlooked. Justice is no cloistered virtue."  The judgment of former Chief Justice of India, Justice Hidayatullah, delivered in the case of R. C. Cooper, (AIR 1970 SC 1318), is also on similar lines, wherein he categorically declared that courts like any other institution do not enjoy immunity from fair criticism. In fact, Justice Hidayatullah even went further and said that he does not claim that the Supreme Court is always right, although it spares no effort to be right according to the best of its ability, knowledge and judgment. In his characteristic humility, Justice Hidayatullah said that they do not claim themselves to be in possession of all the truth or that whenever others differ from them, they are necessarily wrong.  In the field of power of the courts to punish a person for scandalising the court, the judgment of Lord Denning in the case of Ragina v. Metropolitan Police Commr. (1968) 2 QB 150 : (1968) 2 WLR 1204, decided in 1968 is perhaps the most illuminating. Some obnoxious comments had been made by Quintin Hogg QC MP in the "Punch" about the members of the Court of Appeal. Even when confronted with barbed criticism of the judges, Lord Denning refused to be provoked. Instead he wrote, "Let me say at once that we will never use this jurisdiction as a means to uphold our 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 the freedom of speech itself."  Judgments on the question of contempt have dealt with the subject in a wide and varied manner. While some judges have been extremely liberal and tolerant, others display hyper-sensitivity and do not countenance any criticism. Even after the enlightened and liberal approach articulated by the great judges of the Supreme Court, many others are often too quick to give-in to the temptation of using the thick end of the long stick of contempt jurisdiction to silence their detractors. An example of this is when the Andhra Pradesh High Court, 1976 Cri LJ 746 hauled up a litigant who sent notices to the judges imputing mala fides to them and threatened them with legal action. Kerala High Court (1976 Cri LJ 158), held that even if a judgment was vitiated by errors, imputation of unfairness, bias or dishonesty to the judge cannot be excused. Orissa High Court (1976 Cri LJ 440), went to the extent of punishing a litigant who made a complaint about the conduct of District Judge to the Chief Justice of India and suggested that the High Court would not be able to make a proper enquiry into his action on account of relationship between the District Judge and the Chief Justice of the High Court. Rajasthan High Court (1978 Cri LJ 1440), initiated contempt proceedings against the President of Rajasthan Judicial Services Society who had taken the liberty of addressing a communication to the Union Home Minister to focus his attention to the increase in corruption in judiciary. The High Court, however, later discharged the alleged contemner when he made an explanation that the letter had been written by him in the spirit of a crusador against the evil of corruption and that he did not intend to make any insinuation against any person or institution. A litigant was also held to be guilty of contempt by the Allahabad High Court (1978 Cri LJ 789), who made "baseless" allegations against an officer of the court reflecting adversely on the working of court. Karanataka High Court (1976 Cri LJ 1958), found that the complainant who had written letters to the Judicial Magistrate was guilty of contempt as the language used by him in his letters had the effect of scandalising and lowering his authority. These instances and more may not go well with the approach commended by several Chief Justices of India.  Many judges fail to take into account the constitutional ideology according to which the freedom of Press is the 'arch of covenant of democracy'. It is essential that the power to punish for contempt of court for scandalising the judges be reviewed in the context of primacy given to the freedom of speech and expression by our Constitution. One cannot over-emphasise the need for public criticism to the working of democratic institutions. If democracy is to grow stronger, the extraordinary limitations on the right of criticism of public institutions must be removed. To uphold the power to stifle the Press in its criticism of judiciary is to doubt the fundamental principle on which the freedom of speech is based. It was John Stuart Mill who in his essay on "Liberty" pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be sailed the dialectical process of a struggle with wrong ones which exposes errors. "Let her and Falsehood grapple; whoever knew Truth put to the worse, in a free and open encounter? Who knows not that truth is strong, next to the Almighty; she needs no policies, no stratagems, no licencings to make her victorious."  The retention of power of the court to punish for contempt for scandalising the court is all the more painful when one is reminded that the same is a legacy of the colonial power. This was confirmed by Lord Morris in 1899 in the case of Me Leod v. St. Aubyn, 1899 AC 549 wherein he wrote, '"Courts are satisfied of leave to public opinion attacks or comments derogatory or scandalous to them, but in small colonies consisting principally of coloured populations, the enforcement in proper cases of committal for contempt of court for attacks on the court may be absolutely necessary to preserve in such a community the dignity of and respect for the Court."  We became free more than forty years ago and although we are coloured people, our laws cannot continue to regard as uncultured or uncivilised. In fact, as a retort to Lord. Morris, Justice Krishna Iyer says, AIR 1978 SC 727, "We are cultured people with traditions and canons and may at least be equated in these matters with Englishmen."  I hope that the concept and definition of contempt under the Contempt of Courts Act, 1971, will be reconsidered by the Parliament and will become a subject matter of public debate so as to bring it perfectly in consonance with the Constitutional value. It is perhaps the turn of the courts to express a democrat's faith like that of Volatire who said to his adversary in the course of arguments, "I do not agree with the word you say, but I will defend to the death your right to say it."

Author Name: K T S Tulsi