DOES DISCLOSURE OF COMPLAINT AGAINST JUDGES CONSTITUTE CONTEMPT

Subject: Media Law Submitted to: Mr. Apar Gupta Submitted by: Aman Singh (2008-07) IV-Year, VIII-Semester

National Law University, Delhi

Table of Contents

1.1 Introduction 1.2 Background Facts 1.3 What Constitutes Contempt 1.4 Discrepancies in Issuing Of Contempt 1.5 Truth A Defense For Contempt 1.6 Analysis Of Various Recent Acts 1.7 Current Situation 1.8 Conclusions And Suggestions

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Does Disclosure of Complaint against Judges Constitute Contempt

In a democracy people should have right to criticize judges. The purpose of this should not be to uphold the majesty and dignity of the court but, only to enable it to function. MARKANDEY KATJU

1.4 INTRODUCTION: This project is essentially on a very important issue of contempt of court and the subtlety of it. It concerns to a situation where any kind of disclosure of complaints, irrespective of the fact that it is civil or criminal in nature, made against the judges should be disclosed to the larger public or not, or whether this amounts to the contempt of court? The answer to this question, according to the present law is that it will constitute contempt. However, the researcher is of the view that the disclosure of complaints against judges should not constitute contempt of court. Thus the main research question that this project deals with is: Whether disclosure of complaints against judges amount to contempt? The research project, in essence would be answering the aforesaid question with regards to the present law, and what the researcher believes in, as to the current situation that should exists. Therefore, the researcher would advance the arguments accordingly. In order to answer the above research question, the researcher would be first analyzing as to what are the reasons of sudden arousal of this current issue. Following which it would be necessary to discuss what essentially constitutes contempt, with regards to the judges and whether they should be given this much power and privilege with regards to the contempt. After which there would be a brief analysis on the various applicable laws like Prevention of Corruption Act, Contempt of Court Act. Also a brief discussion on the latest development of law of like the passing of Judicial Standards and Accountability Bill, 2010 and The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010. Following this would be my analysis and the conclusion and suggestion to my topic.

1.5 BACKGROUND FACTS: Facts: The facts that lead to this moot point, and opened the gates of discussion is because of an order1 passed by the Central Information Commission (C.I.C) on 22nd March, 2012 by Sushma Singh who is an information Commissioner. The order that is passed is essentially the stepping stone in a move which may make disclose the names of judges against whom complaints have been received by the Law Ministry. The CIC has directed the ministry to disclose the forwarding letters attached with such complaints referred to the Chief Justices of India and Chief Justices of High Courts respectively. The reasons or excuses given by the ministry when they refused to provide for such information are as follows: a. That it cannot be provided copy of complaints because these complaints are forwarded to Chief Justice of India and Chief Justices of High Courts in respective cases. b. Another reason of the officials that was raised when Mr. Agrawal filed a second RTI application was that, the process to club these official copies for the last three years would be a time consuming task. Order: These were some of the grounds on basis of which the Ministry refused to forward the complaint letter. However, the Central Information Commission found his demand of the letters "reasonable" and ordered the disclosure of such letters dating back to last one year immediately. The court also asked the officials to trace records for three years and provide it to the applicant. Information Commissioner. it also directed the Ministry to maintain the records properly. Reasons for a valid claim of the applicant: The applicant had a reasonable claim for asking such kind of information because firstly, this information technically comes within the ambit of the Public Information and thus every citizen
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Official Order, Case No. CIC/SS/A/2011/001270,

Dated: 22.3.2012, available at http://www.rti.india.gov.in/cic_decisions/CIC_SS_A_2011_001270_M_79871.pdf

has right to know all kinds of allegations and charges that has been framed against a judge. It is because Judiciary is at a higher pedestal amongst these three organs because it is the only mechanism to keep the executive and legislature within their jurisdictions by confining them not to abuse or misuse their powers. Thus keep a check on the judiciary is very essential, considering the fact that around 20% of the judges in the higher as well as the lower judiciary is alleged to be corrupt.

Therefore instead of having a confidential process with regards to the investigation and the filing of the complaints against the judges, which again has the scope of being misused and the corruption make take place over there. This opens the exit gates for the judges to avoid any liability arising from any kind of misconduct. Therefore the researcher proposes that transparency is the best available solution to avoid any kind of corruptions, which includes disclosing of complaints against the judges. Thus it is high time to break the traditional belief that it is necessary to uphold the majesty and the dignity of the court. Thus the background facts have been explained, as to why this special issue arose at first. 1.6 WHAT CONSTITUTES CONTEMPT: Criminal Contempt: Disclosure of any kind complaints against judges would constitute a criminal contempt. Criminal Contempt2 has been defined under section 2(c)3. Thus any kind of disclosure of complaints

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Section (c), Contempt of Courts Act, 1971 Any kind of publication (whether by words. spoken or written, or by signs, or by visible representations, or

otherwise) of any matter or the doing of any other act whatsoever which(i) Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner ;

would fall under the subhead of the first point i.e. it scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court. Analysis of Contempt of Courts Act, 1971: Analyzing the present act, it can be clearly seen that the protection and the power given to judges is draconian in nature. Thus, it has become imperative for people to demand the Parliament, to amend the Contempt of Courts Act, 1971 and to make it clear that any criticism of the court, howsoever severe, and any imputation against a Judge or the Judiciary, will not constitute contempt, unless it is shown that the imputation is both baseless and mala fide. Secondly, a case involving a charge of contempt of court should be tried by a Bench comprising five Judges, and not by the very same Judge or Judges against whom the criticism or imputation in question is made. Another point to be noted is that the Contempt of Court Act, rather than defining and limiting the courts powers to punish for contempt, has let itself be misused to stifle genuine criticism against the judiciary and this has grave implications for ensuring accountability of one of the key pillars of India's democracy. According to the researcher, the power assumed by the judiciary (and later conferred on them by the Act) of deciding whether a particular criticism of themselves amounts to scandalizing the court or lowering the authority of the court, is the very negation of the notion of justice in which no person can sit in judgment over his own cause. This power has been misused by the courts to go so far as to hold that no motives can be ascribed to judges or courts and that even the truth of an imputation cannot be pleaded in defense in a charge of contempt. Thus even though, in the current scenario disclosing such kind of complaints filed by people against the judges to the public may and will definitely fall within the ambit of contempt. However, the researcher believes that, this should not be the case.

1.4 Discrepancies in issuing of contempt: This part of the project deals with the different kinds of discrepancies which exist when it comes the court/ judges issuing contempt proceedings against the people. This part of the project holds

importance because when a person discloses any kind of complaints against the judges, it would definitely scandalize and lower the reputation of the court. Thus contempt would be issue. This is the reasoning given by the courts in case such an even happens. However if there is any kind of remark, or any act committed by any other person, then there is a whole new criteria for issuing of contempt proceedings, and relieving that person under these charges. These discrepancies have been briefly mentioned through case analysis which is as follows: 1.4.1 Analysis of the Wah India case: About: This Case4 demonstrates the need for greater journalistic responsibility in the exercise of the freedom of expression, which could in turn; strengthen the case for curtailing the invocation of criminal contempt5 Facts: The case arose out of the publication by the publisher on their magazine and on their website. The publication was related to the results of a purported survey grading the judges of the Delhi High Court based on the criteria, including their personal integrity, understanding of law and quality of judgments delivered. The publishers claimed that the grades were based on a survey where fifty senior members of the Delhi Bar, described as one-tenth of the total strength of the Delhi Bar were consulted. The publication caused a scandal and the Delhi High Court ordered, summarily directing the confiscation of all the unsold copies and ban its circulation and ordered the media not to publish anything that would lower the authority, dignity and prestige of the members of the judiciary. News reports on the contempt proceeding against Wah India were also banned. This provoked more publicity and resulted in an even greater outcry by the media against the courts. The next
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Surya Prakash Khatri v. Madhu Trehan, (2001) 92 DLT 665 (See the majority Judgement delivered by Arjit

Pasayat, C.J.)
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V. Venkatesan, Contempt and punishment, available at: http://www.frontlineonnet.com/fl1814/18140920.htm

day the court lifted the ban on the reporting of the contempt proceedings and directed that the reporting must be fair and accurate.6 The court subsequently let the publishers off after accepting an apology tendered by the publisher and the other three journalists. Minority View: The minority view expressed by Anil Dev Singh, J. and O.P. Dwivedi, J. concluded that the apologies ought not to be accepted since it was apparent that they were a sham tendered only to avoid punishment. Analysis: The message that this conveys to the press and the public is essentially that anyone can go ahead and say what you like about the judiciary, circulate it, tender an apology to assuage hurt egos and get away without much of a problem. As a result the reputation of the judiciary in the eyes of the general public suffered a blow despite the irresponsible nature of the allegations, first by the publication of the purported survey, then by the issuance of the gag orders which got adverse publicity in the press, and finally by the journalists being let off quite easily. What is most essential and important to note here is that in cases such as Wah India, where the material was unsupported by any factual evidence. Where the publication was reckless and irresponsible, and was an obvious attempt to scandalize, the court ought not to stop short at accepting an apology. Where however, when a publication is a genuine attempt to inform the public and is supported by material evidence, showing truth and good faith that ought not to be a case for contempt. For responsible investigative journalism would help facilitate a stronger judicial system, which in turn, inspires greater public confidence. Thus, the Wah India case does no credit to the case for journalistic freedom. If the media demands greater freedom to criticize the administration of justice, there is also a corresponding duty on the media to report with a much greater degree of responsibility.7 1.4.2 Analysis of P.N. Duda vs. P. Shiv Shanker8 case:
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Indian Express, New Delhi, 2 nd May 2001. Harijai Singh, Re, (1996) 6 SCC 466 were also cases where allegations were made by senior journalists against the

then chief justice and a judge of the supreme court without carying to verify the truth of the charges.

In the present case, a speech was delivered by the then Union Law Minister Mr. P. Shiv Shanker, who made quite a few remarks on judges and the administration of court which were defamatory in nature. Thus, it definitely scandalized and lowered the authority of judiciary. however the case was lapsed merely on procedural grounds and no more subsequent actions were taken against the person, when this case was a clear example of contempt of court. Similarly, when Mr.Nambuniripad9 delivered a speech which was similar in substance, who was the then Chief Minister of Kerala. He was still held guilty of contempt of Court but Mr. Shiv Shanker in the preset case was not. This is another clear case of the uncertainty in the law.

Thus, there have been many similar cases like. As a result of these discrepancies, it has opened a lot of confusion as to what constitutes contempt and what not. Thus with regards to the present law with disclosure of complaints against judges, whether it actually will constitute contempt is still questionable. However if any case is arose with respect to his presently, the court (especially the specific judge against whom the complaints have been disclosed) will definitely constitutes contempt. 1.5 Truth a Defense for contempt: Truth is not a defense for contempt according to the present law. However, a landmark Contempt of Courts (Amendment) Bill, 2004, was passed in the Lok Sabha which wanted to amend the 1971 Act to include Section 13 (b).10 However, the bill wasnt passed for the following reasons that: a. Firstly, the 13th Lok Sabha, was dissolved in which it was introduced earlier. b. It was re-introduced by the following government, however it again lapsed because the lack of quorum.11

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AIR 1988 SC 1208 AIR 1970 SC 2015 The court may permit, in any proceeding for contempt of court, justification by truth as a valid defense if it is

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satisfied that it is in public interest and the request for invoking the said defence is bona fide.
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V.Venkatesan, Truth as defense, available at: http://www.frontlineonnet.com/fl1821/18210990.htm

This amendment was important because to bar truth being cited as a defense, is to render the restriction on free speech (under Article 19 (1) (a),(2) of the Constitution) as being not reasonable. As long as the defendant is genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, he or she should have been immune from this. However the truth should be in public interest. Thus, considering all these elements, it can be clearly analyzed that disclosure of complaints against the judges, if it is bona fide and based on clear grounds should be disclosed because it is the right of the citizen to know and be informed of what kinds of misconduct, a judge is charged for. However, prior to disclosure of these complaints, it is necessary to check that these complaints are not based on frivolous grounds. In other Countries: Although courts in England have allowed truth coupled with public interest as a defense to a charge of contempt of court, Indian jurisprudence is yet to admit that truth could be a defense to a charge of contempt. The issue whether truth can be pleaded as defense in contempt proceedings was first referred for consideration by a five-Judge Constitution Bench of the Supreme Court in the Dr. Subramanian Swamy v. Ramakrishna Hegde case filed in 1990. This case is still pending. The issue again came up in the Ramaji Rao v. State of Andhra Pradesh, and was referred to the same Bench in 1999. Wherein it was held that, for an imputation to be bona fide, it must pass the twin tests of due care and caution coupled with public interest. 1.9 ANALYSIS OF VARIOUS RECENT ACTS: 1.9.1 Relevant Bills: A. Judicial Standards and Accountability Bill, 2010: Key Points Relevant: The present status of the bill is that it has been passed by the Lok Sabha. Within the bill, it requires judges to declare their assets, along with this it also lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. The mechanism laid out is very much clear. It establishes the National Judicial Oversight Committee,

the Complaints Scrutiny Panel and an investigation committee. Another important thing that should be noted is that the bill seeks to amend a whole new class of complainant i.e. any person. Thus any person can make a complaint against a judge to the Oversight Committee on grounds of misbehavior, etc, which would be subject to the scrutiny of these committees, and if there are valid grounds to it. Then the judge can be removed by the parliament, however based on the complaint of any person. Thus this is a step taken further towards an improvised mechanism. However the powers of the judges have still not been still restricted to a large amount. However, with respect to the disclosure of complaints that could be made out, there is a specific provision which deals with the confidentiality of it. Thus all kinds of complaints are not allowed to be disclosed. However this bill proposes, to still penalize the complainant who has filed a complaint against a judge based on frivolous grounds. Which means that judges still holds a stronger ground, because everything with regards to a complaint should be kept confidential, however if the nature of complaint is still frivolous, the complainant would still be penalized. Thus, the confidentiality provisions is essentially for the protection of judges, and not the complainant.12 B. The Public Interest Disclosure and Protection to Persons Making the Disclosure Bill, 2010 (Protection of Whistleblowers Act): Key points Relevant: Whistle blowing is the act of disclosing information by an employee or any stakeholder about an illegal or unethical conduct within an organization for the reason that there is always a possibility of victimization of the person making these complaints. Thus, it is necessary to protect the whistleblowers. This Bill in essence replaces the 2004 government resolution and sets up a mechanism to receive complaints of corruption or willful misuse of power by a public servant and provide other safeguards also. This bill has also been passed by the Lok Sabha, it seeks to protect whistleblowers, i.e. persons making a public interest disclosure related to an act of corruption, misuse of power, or criminal
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PRS Legislative Research , The Judicial Standards and Accountability Bill, 2010, available at:

http://www.prsindia.org/uploads/media/Judicial%20Standard/Final%20Brief%20for%20printing%20%20Judicial%20Standards%20and%20Accountability%20Bill%202010.pdf

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offence by a public servant. It further gives powers to any public servant or any other person including a non-governmental organization to make such relevant disclosure to the Central or State Vigilance Commission. However the identity of the complainant should not be disclosed. except if it deems it necessary. The Bill penalizes any person who has disclosed the identity of the complainant. This Bill also prescribes penalties for knowingly making false complaints. Thus person making any kind of complaint based on frivolous grounds is always to be penalized Some of the key definitions that question the key applicability of this act to the judges are as follows:
a. Disclosure13 b. Public Servant14: It does not specifically, include judges within the ambit. However the

researcher thinks that it is vital for a safe public administration that judges should be included within the ambit of public servant.

1.9.2 Relevant Acts: A. Prevention of Corruption Act, 1988: It is very important to keep the judiciary in the purview of scrutiny. Especially when it has been alleged that more than 120 corrupt judges of Supreme Court, High Court & Lok Ayukata are treating the judicial institutions as their paternal property as said by one of the judges. The Supreme Court after the 2G scan case said that, filing a complaint under the Prevention of Corruption Act is a constitutional right of a citizen and the competent authority should take a decision on giving sanction of prosecution to the said people.

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Section 2(d), any complaint made in writing or electronic mail against a public servant on matters related to (a)

attempt to or commission of an offence under the Prevention of Corruption Act, 1988; (b) willful misuse of power which leads to demonstrable loss to the government or gain to the public servant; or (c) attempt .or commission of a criminal offence by a public servant.
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Section 2(i), any person who is an employee of the central government or the state government or any company

or society owned or controlled by the central or state government.

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Now, in the analysis of the previous act, the definition of public disclosure was not specific to the inclusion of judges. However the present act specifically includes judges within the ambit of public servant. As per the definition of public servant under Section 2(c) (iv), it includes: Any Judge, including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions; Thus, a judge may be charged for corruption and may be tried accordingly under the competent authority in the prescribed manner. However the act, does not discusses with respect to disclosures of complaints filed against the judges. There are various other anti-corruption legislations like The Benami Transactions (Prohibition) Act, 1988, The Prevention of Money Laundering Act, 2002, etc. However these legislationd are not very much relevant in our case. 1.10 Current Situation:

Thus the prevalent situation, with regards to the disclosure of complaints against judges, is that no person, authority under law can disclose such complaints to the larger public. The primary reason being that it would scandalize and subsequently lower the authority of the court. Therefore, any kind of such disclosure might trigger the contemptuous proceedings against the person who disclosed such information. However, after a reasonable investigation and when finally the charges are proved, then the information will eventually be disclosed to the larger public. 1.11 Conclusions and Suggestions:

Corruption exists everywhere, and thus it is inevitable to avoid it. Therefore corruption is a part of every judicial system around the world and it is equally applicable to Indian judiciary also. A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. Media being a part of democracy, play a major role in detecting these corrupt practices in judiciary and any such instance, if found, can be spread all over the world within a little span of time.

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What aggravates it, is that because there is almost no transparency in the system, thus any kind of allegation, complaints, charges framed against a judge is always kept confidential. Thus the public at large has no perspective of what is going inside it. Even though legislature, from time to time, attempted to secure the transparency and accountability in the judiciary by enacting legislations. It has passed many Bills for achieving the said goals. However with respect to disclosure of complaints against judges, the law hasnt developed yet. Therefore any kind of disclosure will amount to contempt of court, because it hinders and lowers the authority of the court. The primary purpose of the legislatures is that, it should not in any way hinder or lower the authority, or the administration, or any kind of judicial proceedings. Thus even the slightest criticism may actually amount to contempt, even if it has a negligible effect. That is why the contempt of court act is of draconian nature. Therefore, considering the present situation any kind of disclosure will definitely amount to contempt. And the judges with respect to this have been given a lot of power. However according to the researcher, if there is total transparency, which includes disclosing of complaints it will increase the public trust on the judiciary. Reason behind that being, that public will know everything about the judiciary and therefore the judiciary will gain more public confidence, as opposed the present scenario where everything is done behind the four walls. However, looking at the proposed model, a whole new set of mechanism will have to develop, or otherwise it wont work. The reason being that if any disclosure of complaints against judges is made, that judge wont be able to adjudicate upon the cases. Looking at the big picture, lately so many corruption charges against judges have been coming into picture. All these issues have created a major doubt in the mind of public regarding the credibility and judicial accountability of judges. No doubt the place of judiciary and post of judges are highly dignified. It is not desirable to probe into a judge. But recent examples of corrupt practices in judiciary and facts revealed by the Report of India Corruption Study, 2005 gives shocking figures which is alarming thus this is high time to judge the judges.