An Edited Excerpt from P.N.Duda v. P. Shiv Shankar (1988)
“Justice is not a cloistered virtue. she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.”
– said Lord Atkin in Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 at 335.
Administration of justice and Judges are open to public criticism and public scrutiny. Judges have their accountability to the society and their accountability must be judged by their conscience and oath of their office, that is, to defend and uphold the Constitution and the laws without fear and favour. This the Judges must do in the light given to them to determine what is right.
And again as has been said in the famous speech of Abraham Lincoln in 1865 “With malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right.” Any criticism about the judicial system or the Judges which hampers the administration of justice or which erodes the faith in the objective approach of Judges and brings administration of justice into ridicule must be prevented.
The Contempt of Court proceedings arise out of that attempt. Judgment can be criticised; the motives of the Judges need not be attributed, it brings the administration of justice into deep disrepute. Faith in the administration of justice is one of the pillars through which democratic institution functions and sustains. In the free market place of ideas criticisms about the judicial system or Judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice.
This is how Courts should approach the powers vested in them as Judges to punish a person for an alleged contempt, be it by taking notice of the matter suo motu or at the behest of the litigant or a lawyer.
The Contempt of Court case of Namboodiripad
In E.M. Sankaran Namboodiripad v. T. Narayanan Nambiar, [1971] I S.C.R. 697, the Court had to deal with this jurisdiction in respect of Mr. Namboodiripad who at the relevant time was the Chief Minister of Kerala.
He had held a press conference in November, 1976 and made various critical remarks relating to the judiciary which inter alia was described by him as “an instrument of oppression” and the Judges as “dominated by class hatred, class prejudices”, “instinctively” favouring the rich against the poor. He also stated that as part of the ruling classes the judiciary “works against workers, peasants and other sections of the working classes” and “the law and the system of judiciary essentially served the exploiting classes.”
It was found that these remarks were reported in the newspapers and thereafter proceedings commenced in the High Court of Kerala. The appellant Shri Namboodiripad was called upon to show cause why he should not be committed for contempt. In his affidavit the appellant stated that the reports were “substantially correct”, though incomplete in some respects.
The appellant further claimed that his observations did no more than give expression to the Marxist Philosophy and what was contained in the programme of the Communist Party of India. By a majority judgment of the High Court the appellant was convicted for contempt of court and fined Rs. 1000 or simple imprisonment for one month. He moved Supreme Court by an appeal.
He contended that the law of contempt must be read without encroaching upon the guarantee of freedom of speech and expression under Article 19(1)(a) of the Constitution and that the intention of the appellant in making his remarks at the press conference should be examined in the light of his political views which he was at liberty to put before the people. He sought to justify the remarks as an exposition of his ideology which he claimed was based on the teachigs of Marx and Engels and on this ground claimed protection of the first clause of Article 19(1) of the Constitution.
The conviction of the appellant was upheld by Supreme Court. It was observed by Hidayatullah, C.J speaking for the Court that the law punishes not only acts which do not in fact interfere with the courts and administration of justice but also those which have that tendency, that is to say, are likely to produce a particular result. Judged from the angle of courts and administration of justice, there was no doubt that the appellant was guilty of contempt of court.
The Chief Justice observed whether the appellant misunderstood the teachings of Marx and Engels or deliberately distorted them was not to mush purpose. The likely effect of his words must be seen and they clearly had the effect of lowering the prestige of judges and courts in the eyes of the people. That he did not intend any such result may be a matter for consideration in the sentence to be imposed on him but could not serve as a justification.
The Court further held that the appellant had misguided himself about the true teachings of Marx, Engles and Lenin. According to the Chief Justice he had misunderstood the attack by them on State and the laws as involving an attack on the Judiciary. No doubt the courts, while upholding the laws and enforcing them, do give support to the State but they do not do so out of any impure motives. To charge the Judiciary as an instrument of oppression, the Judges as guided and dominated by class hatred, class interests and class prejudices, instinctively favouring the rich against the poor is to draw a very distorted and poor picture of the Judiciary.
It was clear that the appellant bore an attack upon judges which was calculated to raise in the minds of the people a general dissatisfaction with and distrust of all judicial decisions. According to the Chief Justice it weakened the authority of law and law courts. It was further held that while the spirit underlying Article 19(1)(a), must have due play, the Court could not overlook the provisions of the second clause of that Article. Its provisions are to be read with Articles 129 and 215 which specially confer on this Court and the High Courts the power to punish for contempt of themselves.
Although Article 19(1)(a) guaranteed complete freedom of speech and expression, it also made an exception in respect of contempt of court. While the right is essential to a free society, the Constitution had itself imposed restrictions in relation to contempt of court and it could not therefore be said that the right abolished the law of contempt or that attack upon judges and courts would be condoned.
While respectfully accepting the ratio and the observations of the learned Chief Justice made in that decision we must recognise that times and clime have changed in the last two decades. There have been tremendous erosions of many values.
In this connection it is interesting to note that little over sixty years ago, on 1st March, 1928, Justice Holmes wrote to Prof. Harold Laski ” . . .You amaze me by saying, if I understand you, that criticism of an opinion or judgment after it has been rendered, may make a man liable for contempt. I thought that notion was left for some of our middle western states. I must try to get the book and the decision .. ” (Holmes-Laski Letters Vol. I 1916-1925 Page 1032).
Reference
P.N. Duda v. P. Shiv Shankar (1988)