The flint stone was flung at the judge, but it narrowly missed the target; ject un brickbat a le dit justice que narrowly mist goes the mixed language (quite like our present day newspapers) report of one of the earliest recorded cases of contempt of court. The judge it seems was leaning low and the missile missed the target. The judge remarked to his friends, “You see, now, if I had been an upright judge, I had been slain.”
Our lives would be much easier if all contempt cases were variations of this 1631 contempt in facie curiae. It would make for colourful copy, the accuracy would be unquestioned and we would all be happy reporting such capers. At least it sounds like a caper till one hears what befell the poor prisoner. But we live in calumniating times and there is a decline in ethical standards and it is difficult not to question or critique the system of governance, of which the judiciary are an integral part. Add the proliferation of media outlets; each one out to out do the other in attempting to shock, stun or sting us. And then the judges becoming a trifle bereft of humour, at least of the kind that this judge displayed, even as laughter shows tickle the country’s ribs.
How do we cover the judiciary? How do we report, but not offend? And do we even have the foggiest notion as journalists that there are enough ways to getting around contempt without compromising on telling the story. And what ought to be our position on the subject.
Contempt of court that consumes us is not the one where the right to free expression has to be balanced against the right to a fair trial. It is from this fulcrum that tries to balance competing rights that law derives the moral authority against contemning the judiciary. One should do nothing that impedes justice, either when the order is passed and is flouted or more importantly when a case is being heard and the reportage is of a nature that is likely to affect the course of law. How one wishes the judiciary took notice of trial by media and took action to ensure that the media remain in the business of reporting and they continue with their duty of delivering justice.
It is the other kind of contempt that draws ire. When we do something that, in Hardwicke’s words, is “scandalizing the court itself” we become contemners. The problem is we are not sure what is scandalizing to the court and since we have chosen to live with greater democratic impulses our intuition suggests that judges should not be above criticism or censure. What we have is not an issue of fair trial, but whether the laws of libel should be applicable in cases where there is something deemed defamatory by the judges against their person or should it be treated as a case of contempt. If the subject of criticism is an individual judge or a few named individuals, what are the standards that we, as citizens, hold by which such criticism is judged. If they are libelous in nature, would it not be appropriate that the concerned judge/s take such cases to the courts and seek redress as victims of defamation and not seek refuge in a tradition where the person of the judge is held to inhere in him Justice itself. Common law traditions were used against such libels and contempt of court with summary punishment was a later instrument against such offenders. Histories of the law of contempt of court tell us this.
The point needs to be repeated for emphasis that the problem that we have been facing is because the libeling of judges is treated on par with issues of obstructing or impeding with the due course of justice. The latter belongs to the proper category of contempt of court, while the former ought not to. Justice Pasayat in the last Supreme Court judgement (Haridas Das v. Usha Rani Banik and others) agrees to this formulation when in his judgement he writes, and it merits to be quoted in extenso:
Though certain imputations against the Judge may be only libelous against that particular individual, it may at times amount to contempt also depending upon the gravity of the allegations. In Brahma Prakash Sharma’s case (supra) this Court held that a defamatory attack on a Judge may be a libel so far as the judge is concerned and it would be open to him to proceed against the libellor in a proper action if he so chooses. If, however, the publication of the disparaging statement is calculated to interfere with the due course of justice or proper administration of law by such Court, it can be punished separately as contempt. The same view has been taken in Perspective Publications (P) Ltd v. The State of Maharashtra (AIR 1971 SC 221) and C.K. Daphtary and others v O.P. Gupta and others (AIR 1971 SC 1132). Therefore, apart from the fact that a particular statement is libelous, it can constitute criminal contempt if the imputation is such that the same is capable of lowering the authority of the Court. The gravity of the aforesaid statement [made by the contemner in this case] is that the same would scandalize the court.
The question then turns on how the gravity of the statement is judged and what constitutes the lowering of authority of the Court. It seems that as journalists we have to offer a cogent response to this predicament that the courts face instead of letting them be prosecutor, jury, and judge. As those who intercourse daily in the court of public opinion, let us arrogate the position of an amicus curiae and share what might be better for ensuring that the authority of the Court and the judicial system is not lowered.
There is a distinction between the facticity of a law and the moral authority of a law. The first is the import that a law receives because it is part of the books of law and hence justiciable and punishable. The second is the ethical respect it deserves because the law holds up for practice something that is preferable. The right conduct of the judges and the judiciary may or may not be contemptible in the law courts and the press may be stopped or coerced into not reporting the truth about the courts. But the respect that the judiciary gets is finally a function of its behaviour, of its own practice.The contempt the judicial system should fear is when they are held contemptible in the court of public opinion, however sacrosanct they may hold themselves in their own eyes. Like all institutions authority and respect is eroded by its own actions, not by words hurled at it.
When monarchy was still the norm and notions of democracy had not entered the public consciousness, the body of the sovereign was endowed with divinity, which may have reflected onto those who represented the sovereign. Judges did so. And hence they demanded privilege and were, under duress or otherwise, given that sanctity. Now, they are like anyone else – functionaries of the people. They are answerable to the people via the parliament. And they are not above reproach or scrutiny. If anything, they deserve the same level of scrutiny, if not more, that is directed at the parliament and the executive. To imagine that they can carve a sanctuary within which they are free to do what they wish without inviting our collective opprobrium is to live in error. We have to move towards a legal regime that treats scandalizing the judiciary as matters of libel rather than as those of contempt.
Contempt has to belong only to cases where there is an imminent threat to the prosecution of justice. The test to be applied is whether there is a risk of seriously impeding or prejudicing justice rather than anything that is defamatory. The judicial process has to be valorized rather than any judge or court. And certainly those whose own actions may be inimical to the highest standards of conduct need not be sheltered under laws meant to ensure free and fair trial. If one recalls the kind of scrutiny that Supreme Court nominees in the United States have to undergo before confirmation, it will be clear that those democracies where republican values have greater salience treat judges in the same manner as any other government official.
If anything as journalists we are entrusted with the task of ensuring that constitutional rights are protected. Hence, it is not the balancing of two rights, fair trial and free speech, that we are concerned with. We are there to ensure that moral turpitude and ineptitude does not lead to a miscarriage of justice and that the law mighty though it may be is at the service of the people and not for the might alone. The arguments against in camera trial are precisely those that are also applicable for merciless scrutiny of the judicial process and if that extends to the behaviour of the judges, so be it. What recourse do the people have if not the majesty of the court of public opinion if and when the narrow corridors of judiciary are corrupted. It is a task for the protection of fundamental rights, not of weighing competing claims. And in the last analysis that has to remain the last defence that the journalists have for the work we do vis-a-vis the courts of law.
Times have changed since the hand that flung the stone was cut and the man put on the gibbet then and there. Among the tasks that we journalists have to perform the most important is ensuring that the beacon is not dimmed at those who have power. We are participants in the courts; we convey to the people that justice prevails. And hence we also have to convey when it does not and when those who sit on judgement have sullied their hands. If we err, let us be judged for our errors of omission and commission. But not with summary powers. Constructive contempt vis-a-vis the press belongs to the Star Chamber not to our democracy.
Appeared in Vidura.
