The limitations of Fair Criticism of Court
It is well to remember the observations of Justice Brennan of U.S. Supreme Court (though made in the context of law of libel) in New York Times Company v. L.B. Sullivan, 376 U.S. 254 that it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.
Lord Denning in Regina v. Commissioner of Police of the Metropolis, Ex parte Blackburn, [1968] 2 W.L.R. 1204 observed as follows.
“Let me say at once that we will never use this jurisdiction as a means 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. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment on matters of public interest.
Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy.
We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.”
The aforesaid observations were made in respect of an article written by Mr. Quintin Hogg in “Punch” (as later Lord Hailsham then was) more or less in a critical language as the Hon’ble Minister’s speech in the instant case.
Gajendragadkar, C.J. in Special Reference No. 1 of 1964, [1965] 1 SCR 413 observed as follows:
“We ought never to forget that the power to punish for contempt, large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve 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 has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that Judges, like Caesar’s wife, must be above suspicion, per Krishna Iyer, J. in Shri Baradakanta Mishra v. The Registrar of Orissa High Court and another, [1974] 1 S.C.C. 374.
The Effect of Scandalous Remarks against Judiciary
The Court in P.N. Duda v. P. Shri Krishna (1988) Said, that
It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalising remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remedyless evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the Judges and lawyers must make about themselves. We must turn the search light inward.
Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R. 497
In Rama Dayal Markarha v. State of Madhya Pradesh, [1978] 3 S.C.R. 497 it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a Judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less Judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts.
But when it is said that the Judges had a pre-disposition to convict or deliberately took a turn in discussion of evidence because he had already made up his mind to convict the accused, or has a wayward bend of mind, is attributing motives, lack of dispassionate and objective approach and analysis and pre-judging of the issues which would bring administration of justice into ridicule. Criticism of the Judges would attract greater attention than others and such criticism sometime interferes with the administration of justice and that must be judged by the yardstick whether it brings the administration of justice into a ridicule or hampers administration of justice.
After all it cannot be denied that pre-disposition or subtle prejudice or unconscious prejudice or what in Indian language is called “Sanskar” are inarticulate major premises in decision making process. That element in the decision making process cannot be denied, it should be taken note of It has to be borne in mind, as has been said by Benjamin N. Cardozo in “The Nature of the Judicial Process” at pages 16-17 that the Judge as the interpreter for the community of its sense of law and order must supply omissions, correct uncertainties, and harmonize results with justice through a method of free decision. Courts are to “search for light among the social elements of every kind that are the A living force behind the facts they deal with”.
The power thus put in their hands is great, and subject, like all power, to abuse; but we are not to flinch from granting it. In the long run “there is not guaranty of justice,” said Ehrlich, “except the personality of the judge. Justice Benjamin N. Cardozo further says at page 112 of the said book that judicial process comes then to this, and little more logic, history, custom and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law.
Judges try to see things as objectively as they please. Nonetheless, we can never see them with any eyes except our own. Therefore, the perception of a judge is important and relevant. Judicial process is not only a path of discovery but a path of creation (Cardozo “the Nature of the Judicial Process”).
It is well to remember the words of Justice Cardozo where he says as follows:
“I have no quarrel, therefore, with the doctrine that the judges ought to be in sympathy with the spirit of their times. Alas! assent to such a generality does not carry us far upon the road to truth. In every court there are likely to be as many estimates of the ‘Zeitgeist’ as there are judges on its bench. Of the power of favour or prejudice in any sordid or vulgar or evil sense, I have found no trace, not even the faintest, among the judges whom I have known.
But every day there is borne in on me a new conviction of the inescapable relation between the truth without us and the truth within. The spirit of the age, as it is revealed to each of us, is too often only the spirit of the group in which the accidents of birth or education or occupation or fellowship have given us a place. No effort or revolution of the mind will overthrow utterly and at all times the empire of these subconscious loyalties.
“our beliefs and opinions,” says James Harvey Robinson (32 Political Science Quarterly 315), “like our standards of conduct come to us insensibly as products of our companionship with our fellow men, not as results of our personal experience and the inferences we individually make from our own observations. We are constantly misled by our extraordinary faculty of ‘rationalizing’ -that is, of devising plausible arguments for accepting what is imposed upon us by the traditions of the group to which we belong.
We are adjectly credulous by nature, and instinctively accept the verdicts of the group. We are suggestible not merely when under the spell of an excited mob or a fervent revival, but we are ever and always listening to the still small voice of the herd, and are ever ready to defend and justify its instructions and warnings, and accept them as the mature results of our own reasoning. “
This was written, not of judges specially, but of men and women of all classes. The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions. It will help to broaden the group to which his subconscious loyalties are due. Never will these loyalties be utterly extinguished while human nature is what it is. We may wonder sometimes how from the play of all these forces of individualism, there can come anything coherent, anything but chaos and the void. Those are the moments in which we exaggerate the elements of difference. In the end there emerges some thing which has a composite shape and truth and order. It has been said that “History, like mathematics, is obliged to assume that eccentricities more or less balance each other, so that something remains constant at last” (Henry Adams, “The Degradation of the Democratic Dogma,” pages 291 and 292).
The like is true of the work of courts. The eccentricities of judges balance one another. One judge looks at problems from the point of view of history, another from that of philosophy, another from that of social utility, one is a formalist, another a latitudinarian, one is timorous of change, another dissatisfied with the present; out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements.
The same thing is true of the work of juries. I do not mean to suggest that the product in either case does not betray the flaws inherent in its origin. The flaws are there as in every human institution. Because they are not only there but visible, we have faith that they will be corrected. There is no assurance that the rule of the majority will be the expression of perfect reason when embodied in constitution or in statute. We ought not to expect more of it when embodied in the judgments of the courts. The tide rises and falls, but the sands of error crumble.
The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. Little by little the old doctrine is undermined. Often the encroachments are so gradual that their significance is at first obscured.
Finally we discover that the contour of the landscape has been changed, that the old maps must be cast aside, and the ground charted anew. The process, with all its silent yet inevitable power, has been described by Mr. Henderson with singular felicity:
“When an adherent of a systematic faith is brought continuously in touch with influences and exposed to desires inconsistent with that faith, a process of unconscious cerebration may take place, by which a growing store of hostile mental inclinations may accumulate, strongly motivating action and decision, but seldom emerging clearly into consciousness. In the meantime the formulas of the old faith are retained and repeated by force of habit, until one day the realization comes that conduct and sympathies and fundamental desires have become so inconsistent with the logical framework that it must be discarded. Then begins the task of building up and rationalizing a new faith.” (Cardozo- The Nature of the Judicial Process pages 174-179)
If any-one draws attention to this danger and aspect and measures an institution by the class content he does not minimise its dignity or denigrate its authority. Looked in that perspective though at places little intemperate, the statement of the Minister in this case cannot be said to amount to interference with the administration of justice and as to amount to contempt of court. The Minister’s statement does not interfere with the administration of justice. Administration of justice in this country stands on surer foundation.
J.A.G. Griffith in “The Politics of the Judiciary”
J.A.G. Griffith in “The Politics of the Judiciary”, Part I has two interesting passages on the judiciary which are worth quoting:
“There is one matter which I ought to mention. All the judges, without exception, are members of the Athenaeum, and I presume you will wish to be a member. If so, may I have the pleasure of proposing you? There is a meeting of the Committee early next week.” “The most politically influential of the judges, however, has been the Master of the Rolls, Lord Denning . . . With his own modest roots he dismisses the attacks on a classbased judiciary: The youngsters believe that we come from a narrow background-it’s all nonsense-they get it from that man Griffith.”
Griffith in his book “The Politics of the Judiciary” at page 234 has tried to incite the concept of the class interest of the judges. Judges he says are concerned to preserve and protect the existing order. This does not mean that no judges are capable of moving with the times, of adjusting to changed circumstances. But, according to him, their function in our society is to do so belatedly. He further says thus:
“Law and order, the established distribution of power both public and private, the conventional and agreed view amongst those who exercise political and economic power, the fears and prejudices of the middle and upper classes, these are the forces which the judges are expected to up hold and do uphold.”
No contempt proceedings were taken in England in respect of these and one would like to think rightly. Faith in the administration of justice is not shaken by such criticism.
Conscientious Group v. Mohammed Yunus and others, [1987] 3 S.C.C. 89
Reference may also be made to the decision of this Court in Conscientious Group v. Mohammed Yunus and others, [1987] 3 S.C.C. 89. In that case there was publication in the Indian Express which carried the news that Mr. Mohammed Yunus, Chairman, Trade Fair Authority of India said that the Supreme Court Judge who held that the singing of the National Anthem was not compulsory had no right to be called either an Indian or a Judge.
The Conscientious Group approached this Court for contempt alleging that the conduct of Mr. Mohammed Yunus in making certain adverse comments about the Judges who delivered the judgment of this Court in Civil Appeal No. 860 of 1986 National Anthem case (1986 3 S.C.C. 615) constituted criminal contempt and it should be so dealt with. Notice on this petition was issued.
When the matter subsequently came up before a Bench of three Judges consisting of Bhagwati, C.J., Oza and K.N. Singh, JJ., the contemnor filed a reply stating that the petition was not maintainable inasmuch as the petitioner had not obtained the consent in writing of the Attorney General as required under section 15 of the Act. It appears that the petitioner was directed by the Division Bench to move the Attorney General for his consent and the petition was adjourned. The Attorney General on being moved by the petitioner for the grant of consent replied to the petitioner stating that since he was himself a party in his capacity as Attorney General in the National Anthem case, it was not appropriate for him to deal with the petitioner’s application.
When the case later on came up before the same three Judges Bench on December 12, 1986, the learned Judges directed the withdrawal of the petition with liberty to the petitioner to refile the application after obtaining consent of the Attorney General as soon as the National Anthem case was over. It was further observed by this Court that everyone is entitled to criticise the judgment of the court but no one should attack the Judges who delivered the judgment as that denigrates the judicial institution and in the long term impairs the democratic process.
Subsequently the petitioner in that case filed Criminal Miscellaneous Petition No. 5244 of 1986 praying for recalling the aforesaid order on the ground that at the time when he applied to the court for withdrawal of the petition he was not aware that under Rule 3(c) of the Rules framed by this Court, the contempt petition could be maintained with the consent of the Solicitor General, if the Attorney General, for any reason, was not in a position to give consent to the filing of the petition. He was so allowed. Thereafter the petitioner approached the Solicitor General. But the Solicitor General declined to give the consent in public interest. He gave certain reasons in support of his conclusion.
The Court in the aforesaid decision by scrutinising reasons was of the opinion that the reasons stated by the Solicitor General refusing to grant consent could not be said to be irrelevant and the petition was dismissed. In dismissing this application this Court observed at page 93 of the report “No doubt, by the last of the sentence of the said order, the Bench has also observed that ‘the petitioner will not be without remedy, if the Solicitor General refuses his consent on any irrelevant ground’ but this only means that such a refusal can be called in question before this Court by the petitioner by appropriate process”. In other words, the effect of the decision is that the reasons given by the Attorney General or the Solicitor General in giving or not giving his consent were justiciable.
Reference
P.N. Duda v. P. Shiv Shankar (1988)