Algebra of infinite justice: Writer Arundhati Roy was held guilty of contempt of court in 2002

The debate ? are judges above being judged ? crops up periodically. But this time, with Chief Justice Markandey Katju of the Madras High Court supporting the abolition of the contempt of court clause from the Constitution, the longstanding debate over the clause’s legitimacy has received fresh momentum.

Article 19(1) (a) of the Constitution, the right to freedom of speech and expression, mentions that this fundamental right “would not prevent the courts to punish, as contempt of themselves, spoken or printed words calculated to have that effect”.

Contempt of court can be of two types ? civil or criminal. Most legal experts believe that civil contempt ? which implies flouting of court orders ? has a legitimate place in Indian jurisprudence.

The problem, they say, lies with criminal contempt. Any public expression, which “scandalises” or “tends to scandalise” the court, or lowers or tends to lower the authority of any court, could constitute criminal contempt.

“The way criminal contempt is defined, it has a very wide ambit, and hence, can be used fairly arbitrarily by judges in the higher courts,” says former Supreme Court Judge, Justice V.R. Krishna Iyer.

Clearly, Katju’s recent speech has kicked up a stir in legal circles. Democracy, the Chief Justice had said, meant that the people were supreme and every authority ? from political to judicial ?was a servant of the people. In that case, Chief Justice Katju argued, the people had the right to criticise the judiciary.

Among those who picked up the issue was jurist Fali S. Nariman. “The power of contempt that Chief Justice Katju spoke about was a relic that has survived our colonial past when it was as important for Indians to see ‘the awful majesty of the law’ administered mainly by British judges, as it was to hear their ponderous verdicts,” Nariman wrote in a column recently.

But there is a section that believes the contempt clause has its place in the Constitution, because it helps the judiciary function. The Constitutional purpose of the clause was explained in the Supreme Court judgement against noted author Arundhati Roy in March 2002.

Reading out the judgement, Justice R.P. Sethi said, “The Constitution has assigned the special task (of establishment of the rule of law) to the judiciary in the country. For the judiciary to perform its duties and functions effectively and true to the spirit with which it has been sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs.”

But there is a growing belief that while the dignity of the judiciary cannot be undermined, the contempt clause puts judges above the law. “In a republic, such a law should have no place,” says Justice Iyer. “Truth is not a defence in contempt cases. A person may have evidence that a judge took bribes. Even if that is proven in court, he or she would still be held guilty of criminal contempt,” he explains.

People’s Right Democracy, Chief Justice Katju had said, meant that the people were supreme and every authority — from political to judicial — was a servant of the people. In that case, the Chief Justice argued, the people had the right to criticise the judiciary

A major flaw with the current clause, experts say, is that it provides almost no chance for the accused to defend himself or herself. Arundhati Roy, for instance, was hauled up for contempt, because of an article titled The Greater Common Good. The Supreme Court held that the article was a “misrepresentation of Court proceedings”, referring to a judgement by Justice G.B. Pattanaik. Justice Pattanaik, however, was also on the bench which subsequently held Roy guilty of contempt.

“The fact that a judge who might be feeling slighted himself may be part of the bench for the contempt case gives the accused in the case very little chance,” says Justice Hosbet Suresh, former judge in the Mumbai High Court.

Earlier efforts at making the judiciary accountable have not met with success. Justice Suresh points out that the Mumbai Bar Association wanted former Chief Justice of the Mumbai High Court, Justice Bhatnagar, to vacate his post, as he was, in the association’s opinion, bringing disrepute to the profession. “The Supreme Court, however, held that the Chief Justice could not be removed”, he says.

But now, with the Law Commission also having made recommendations to the law ministry, seeking changes in the clause, a major section of the legal fraternity appears to feel that the contempt clause has outlived itself. Justice Katju's comments may just provide the ignition to take the debate to the law ministry corridors.