These words emphasize the republican and democratic character of our Constitution, and show that all power ultimately stems from the People.
Once this concept of popular sovereignty is kept firmly in mind it becomes obvious that the people of India are the masters and all authorities in India (including the Courts) are their servants. Surely the master has the right to criticize the servant if the servant does not act or behave properly. It would logically seem to follow that in a democracy the people have the right to criticize the Judges. Why then, it may be asked, should there be a Contempt of Courts Act which to some extent prevents people from criticizing Judges or doing other things which are regarded as Contempt of Court? This is a question which calls for a close examination, and this is what is attempted here.
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he Constitution has no doubt been created by the people. But this instrument has itself created the Courts, which means that the people in their wisdom realized that there must be a forum (or fora) where disputes between the people could be resolved and grievances of the people redressed peacefully.
It is in the nature of things that in every society there will be disputes between, and grievances of, the people. If there is no forum to resolve these disputes and redress these grievances peacefully, they will be resolved violently with bombs, guns, knives and lathis. Hence the judiciary is a great safety valve. By giving a hearing to a person having a grievance, and by giving a verdict on the basis of settled legal principles, the Court pacifies that person, otherwise the grievance may erupt violently. The judiciary thus maintains peace in society, and no society can do without it.
Looking at it from this angle one can immediately realize that in a democracy the purpose of the Contempt of Court power can only be to enable the Court to function. The power is not to prevent the master (the people) from criticizing their servant (the Judges) if the latter do not function properly or commit misconduct.
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rticle 19(1)(a) of the Constitution gives the right of freedom of speech and expression to all citizens. But Articles 129 and 215 give the power of Contempt of Court to the higher judiciary, and this power limits the freedom granted by Article 19(1)(a). How are these two provisions to be reconciled?
In my opinion once it is accepted that India is a democracy, and that in a democracy the people are supreme, the reconciliation can only be affected by treating the right of the citizens of free speech and expression under Article 19(1)(a) to be primary, and the power of contempt to be subordinate. In other words, the people are free, and have the right to criticize Judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult.
Thus in my opinion the test to determine whether an act amounts to Contempt of Court or not is this : does it make the functioning of the Judges impossible or extremely difficult? If it does not, then it does not amount to Contempt of Court, even if it is harsh criticism.
Much of our Contempt Law is a hangover from British rule. But under British rule India was not free and democratic, and the people were not supreme, rather it was the British rulers who were supreme. Also there was no Constitution at that time containing provisions like Article 19(1)(a). How then can the law of those days be applicable today?
As a Judge in three High Courts (Allahabad, Madras and Delhi) I would often tell the lawyers in open Court that they could criticize me as much as they liked, inside the Court or outside it, to their heart’s content, but I would not initiate proceedings for Contempt of Court. Either the criticism was correct, in which case I deserved it, or it was false in which case I would ignore it. Some people deliberately try to provoke the Judge to initiate Contempt of Court proceedings, their whole game being to get publicity. The best way to deal with such persons would be to ignore them, and thus deny them the publicity which they are really seeking. I would often say in Court "Contempt power is a `Brahmastra’ to be used only on a `patra’ (deserving person), and I do not regard you as a `patra’."
I also said that the only situation where I would have to take some action was if my functioning as a Judge was made impossible e.g. if someone jumps up on to the dais of the Court and runs away with the Court file, or keeps shouting and screaming in Court, or threatens a party or a witness. After all I have to function if I wish to justify my salary.
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n a speech delivered on 1.12.2001 in Jaipur on the topic "The Law of Contempt – is it being stretched too far?" The doyen of the Indian Bar, Mr. Fali Nariman, said that the offence of `scandalizing the Court’ is a mercurial jurisdiction in which there are no rules and no constraints. I may quote an entire long passage from this speech: