Friday, 15 October 2010

As freedom of speech is no licence so justice is not a cloistered virtue

A National Daily of Bangladesh published a commentary on freedom of speeck and justice. The Commentary is given here for the readers of the Bangladesh Law House.

Our Supreme Court in more than one contempt proceedings upheld the principle laid down by the Privy Council:
"The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motive to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men."

Confidence in the judiciary must be protected not for the judges themselves, but for the survival of the rule of law. Our fundamental rights will not be enforceable without the help of a strong judiciary and the judiciary's strength comes from the confidence it enjoys of the people.

The recent contempt of court proceedings before the High Court Division and the Appellate Division have raised much discussion and some debate centering round the issues of freedom of speech and the independence of the judiciary. The issues are equally sensitive and vitally important for the demands of democracy and justice. We feel strongly about having a proper perspective in public domain. We at the same time though it best to explain the matter through the views and observations made by eminent judges while deciding contempt of court cases. The present Chief Justice Mr Khairul Haque has been quite explicit that judges are not above criticism. But what is expected is the fairness in criticism so that the judiciary as a whole is not undermined Restraint is also the hallmark of the judges.

All criticisms of the judiciary must be strictly rational and sober and proceed from the highest motives without being coloured by any partisan spirit or tactics. This should be a part of national ethics. The comments about the judges of the Supreme Court suggesting that they lack moral courage to the extent of having 'disowned' what they had done, at least verge on contempt. None could say that such suggestion would not make judges of the Supreme Court look ridiculous or even unworthy, in the estimation of the public, of the very high office they hold if they could so easily 'disown' what they had done after having really done it. The judiciary cannot be immune from criticism. But when that criticism was based on obvious distortion or gross misstatement and made in a manner which seems designed to lower respect for the judiciary and destroy public confidence in it, it could not be Ignored - S Mulgaokar, in re AIR 1978 SC 727: (1978)3 SCR 162.

As held in P N Duda V P Shiv Shankar AIR 1988 SC 1208. (1988)3 SCC 167- 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 uphold and defend. The Constitution and the laws without fear or favour. 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. Judgements can be criticised, the motives of the judges need not be attributed. It brings the administration of justice into deep disrepute. In the free market place of ideas criticism 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 matters suo motu or at the behest of the litigant or a lawyer. Turning, however, the light inward, the court in P N Duda [AIR 1988 SC 1208: (1988)3 SCC 167] went on to observe: 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 Baradakanta Mishra v Registrar of Orissa High Court (1974)1 SCC 374; AIR 1974 SC 710].

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. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process. If it is seriously done. This question was examined in Rama Dayal Markarha v State of M.P. (1978)3 SCR 497; AIR 1978 SC 921, where 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 judgement is incorrect or an error has been committed both with regard to law or established facts. But when it is said that the judge 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 prejudging of issues which would bring administration of Justice into ridicule. Criticism of the judges would attract greater attention than others and such criticism he 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.

In Brahma Prakash Sharma v State of HP AIR 1954 SC 10:1954 Cr LJ 238, the members of the local Bar took a resolution describing the two judicial officers as thoroughly incompetent in law and whose judicial work did not inspire any confidence. As to whether this amounted to contempt of court, it was held that to answer this question the court has to see whether it was in any way calculated to interfere with the due administration of justice in the concerned courts.

Upholding the right of fair criticism, the court in M. R. Parashar v Farooq Abdullah AIR 1984 SC 615: 1984 Cr LJ 337, observed: Indeed, the right to offer healthy and constructive criticism which is fair in spirit must be left unimpaired in the interest of public institutions themselves. Critics are instruments of reforms, not those actuated by malice but those who are inspired by the spirit of public weal Bona fide, criticism of any system or institution is aimed at inducing the administrators of that system or institution to look inwards and improve its public image. Courts do not like to assume the posture that they are above criticism and that their functioning needs no improvement. But it is necessary to make it clear that though law does not restrain the expression of disapprobation against what is done in or by courts of law, the liberty of free expression is not to be confounded with a license to make unfounded allegations of corruption against the judiciary. The abuse of the liberty of free speech and expression carries the case nearer the law of contempt.

Proceeding further, the court observed: 'We would also like to remind those who criticise the judiciary that it has no forum from which to defend itself. The legislature can act in defence of itself from the floor of the House. It enjoys privileges which are beyond the reach of law. The executive is all powerful and has ample resources and media at its command to explain its actions and, if need be, to counter-attack. Those who attack the judiciary must remember that they are attacking an institution which is indispensable for the survival of the rule of law but which has no means of defending itself. In the very nature of things, it cannot engage itself in an open war, not indulge in releasing contradictions. The sword of justice is in the hands of the Goddess of Justice, not in the hands of mortal judges. Therefore, judges must receive the due protection of law from unfounded attacks on their character.

As very rightly observed by Krishna Iyer, J. in Baradakanta Mishra v Registrar of Orissa High Court (1974) SCC 374: AIR 1974 SC 710 that if judges decay, the contempt power will not save them and so the other side of the coin is that judges like ceasar's wife must be above suspicion. In this connection it may be quite pertinent to refer to what the Supreme Court has to say in C. Ravichandran Iyer v Justice A. M. Bhattacharjee (1995)5 SCC 457: Judicial office is essentially a public trust; society is, therefore, entitled to expect that a judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process.

…………………To keep the stream of justice clean and pure, the judge must be endorsed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The judges of higher echelons, therefore, should not be mere men of clay with all the frailties and foibles, human failings and weak character which may be found in those in other walks of life. They should be men of fighting faith with tough fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those qualities which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. In short, the behaviour of the judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law.'

It may be interesting to note what Justice Barnard Botein, a Justice of the New York State Supreme Court, had to say in his small book titled 'Trial Judge': 'Modern lawyers recall Lord Chancellor Lyndhurst's description of a good judge, in this manner: First, he must be honest. Second, he must be reasonably hardworking. Third, he must have courage. Fourth, he must be a gentleman. And then, if he has some knowledge of law, it will help'.
Link: View the article in the newspaper

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