The Supreme Court is set to examine under which circumstances a person can make public allegations of corruption against the judiciary. A three-judge bench of Supreme Court would also hear arguments to decide on the procedure to be adopted in cases when such statements of corruption are made in public against sitting as well as retired judges. The Supreme court would look into these issues:
- If statements on ‘judicial corruption’ are made in public, under what circumstances can they be made.
- The procedure to be adopted if such statements of corruption are made in public against sitting as well as retired judges
- When some matter is sub judice, to what extent… can the matter be argued through the media or another mode.
Referred to Justice V Ramaswamy case
The bench referred to Justice V Ramaswamy case in which the procedure was laid down to deal with allegations against a sitting judge. The Bench said the judgment was against publicly making allegations against judges. The dominating spirit of the 1992 judgment was to “preserve the right, interest, and dignity of the judge, which is commensurate with the dignity of all the institutions and functionaries involved in the process.”
A thin line difference between Criticism and Contempt
Section 2(c) of the Contempt of Courts Act, 1971 defines criminal contempt as the publication of any matter or the doing of any other act which scandalizes or lowers the authority of any court; or prejudices or interferes with the due course of any judicial proceeding; or obstructs the administration of justice. Does this mean criticism against judiciary amounts to contempt? The answer is a straight no. A statement would not constitute criminal contempt if it is only against the judge in his or her individual capacity and not in discharge of his or her judicial function. Statements that affect the administration of justice or functioning of courts amount to criminal contempt since public perception plays a vital role in maintaining rule of law.
Does statements against the functioning of a judge amount criminal contempt?
The Supreme court has held that if a comment is made against the functioning of a judge, it would have to be seen whether the comment is fair or malicious. If the comment is made against the judge as an individual, it would have to be seen whether the comment interferes with the judge’s administration or is simply in the nature of libel or defamation. The court would have to determine whether the statement is fair, bona fide, defamatory or contemptuous.
Conflict with Freedom of speech
In the matter of C.K. Daphtary v. O.P. Gupta (1971), the Supreme Court held that the existing law of criminal contempt is a reasonable restriction under Article 19(2) but that does not mean one cannot express one’s ire against the judiciary for fear of contempt. Way back in 1968, Lord Denning M. R. set out the guidelines in matters of contempt of court. He stated that the power of contempt shall be exercised sparingly as freedom of speech is paramount.
Defence of “Fair Comment”
Section 4 and 5 of Contempt of Courts Act, 1971 is a defence if criticism of judicial act is “fair“. In the matter of In Re: S. Mugolkar v. Unknown (1978), the Supreme Court held that “judiciary cannot be immune from fair criticism, and contempt action is to be used only when an obvious misstatement with malicious intent seeks to bring down public confidence in the courts or seeks to influence courts.” Mr. justice opined that at times the judiciary adopts a “magnanimously charitable attitude even when utterly uncharitable and unfair criticism of its operations is made out of bonafide concern for improvement.” Again in the matter of Indirect Tax Practitioner’s Association v. R.K. Jain (2010), it is held by the Supreme Court that truth is also a defence in matters of criminal contempt if it is bona fide and made in the public interest.
Thus, it can be said whether a statement criticizing the judiciary depends upon the facts and circumstances of each case. Certainly, tweets and public comments do not denigrate the judicial functionaries if made fair. The power of contempt shall be exercised very rarely to preserve the freedom of expression as rightly pointed out by Lord Denning.