Why Justice Krishna Iyer said Contempt power cipherises its user
Why Justice Krishna Iyer said Contempt power cipherises its user
Mathews J. Nedumpara
8.2.2023
1. What prompts me to pen these lines are the news reports that the Kerala High Court has initiated suo motu contempt proceedings against Shri K.M Shahjahan, Private Secretary to Shri V.S Achuthanandan, the former Chief Minister of Kerala. Shri K.M Shahjahan has reportedly alleged that it was not merely, Adv Saiby, the President of the Kerala High Court Advocate Association who was involved in the scandal of bribe for favorable orders in the Kerala High Court, but even the judges themselves. This seems like nothing more than stating the obvious when there exists an allegation of corruption. How can there be a bribe if there is no taker?
2. The High Court, in the draft charges framed against Shri Shahjahan, has accused him of tarnishing the integrity of the judge whom he had named. The Court further took the view that his speech amounted to scandalizing the authority of the court and interfering with the due course of judicial proceedings. The report would certainly shock the conscience of the common man. For me, it is rather painful. A prestigious High Court such as my own alma mater, the Kerala High Court, which has produced great judges like Justice Krishna Iyer and Justice KK Mathew, in taking suo motu contempt by scandalization has unwittingly allowed itself to go back to the days of the star chambers. In the Dark Ages, heresy, namely, speaking against the doctrines of the church, particularly, blasphemy, atheism or any other damnable doctrines and opinion, was punishable with death, namely, burning at the stakes. It was abolished by an Act of Parliament only in 1677. In England, the concept of contempt of court by scandalization practically came to an end in the 19th century. However, in the British Colonies, it survived even after its death. Unfortunately, by virtue of Articles 129 and 215 of the Constitution of India came to expressly vest the power of contempt in the Supreme Court and High Courts as a court of record. The Parliament too, by enacting the Contempt of Courts Act, 1971, gave it a statutory recognition, though in enacting the Contempt of Courts Act, the intention of the Parliament was to codify the law of contempt which is draconian and uncertain, and to limit and regulate its exercise.
3. Chief Justice Gogoi quite recently said in the public domain that corruption has become a way of life, an acceptable way of life and that the Judges do not drop from heaven. There is absolutely no doubt that the entire tenacles of cancer that is corruption, has spread over the entire body politics of our nation and that the judiciary is no exception to that. When it comes to corruption in the political executive and bureaucracy, a citizen and the press, the public, can fearlessly raise the issue. There are the opposition parties eager to raise it. The new tribes of PIL wallas are there to seek even court monitored investigation. There is the Anti-Corruption Bureau, Lokpal, Lokayukta. Countless are the number of Chief Ministers, Ministers, MPs, who are convicted of corruption. At least two former Chief Ministers, Lalu Prasad and Om Prakash Chauthala are in jail. The fear of arrest and prosecution certainly acts as a deterrent. On the contrary, Judges face absolutely no risk of prosecution unless they are caught red handed as in the case of Nirmal Yadav, former Judge of the Punjab & Haryana High Court who was caught in the cash at the judges gate scandal of 2008. There are allegations of corruption against several former judges and Chief Justices of the Supreme Court and High Courts. None of them have had to face any enquiry or consequence. The exception is the in-house enquiry conducted by judges themselves in a few cases, which is no enquiry at all. On the contrary, it was those who made allegations who had to face the music. Justice Karnan was sentenced to six months imprisonment for making wild and scandalous allegations against the judges of the Supreme Court and High Court. Many lesser mortals have been convicted and sentenced to jail. All this is happening in the 21st century where it is universally recognized that all power, including judicial power, is a trust and that those who hold it are accountable to the people. Corruption, specifically, judicial corruption, has been considered to be a particularly heinous crime since time immemorial and those who were found guilty have been put to death. The great Lord Chancellor Francis Bacon was convicted for bribery and sentenced, though later released by the King. From time immemorial judges were required, like Ceasers wife, to be above suspicion.
4. While allegations of corruption against judges were extremely rare in the initial years after independence, the case today is different. Wherever one goes, there are hushed talks of corruption and malpractice, particularly involving the immediate relatives of judges. The collegium system of appointment where judges appoint themselves and the system where judges designate senior advocates has aggravated the situation. The bench and the bar, which practically means only a few families, has made it difficult, nay impossible, to prevent malpractices. Blood, after all, is said to be thicker than water.
5. The allegations which Shri Shahjahan has made against the judges of the Kerala High Court and the issuance of suo motu contempt proceedings against him is only the tip of the iceberg of the lack of accountability and probity which our justice delivery system faces today. The contempt law is invoked on the sole premise that without it the majesty and dignity of the institution of judiciary cannot be maintained and that the peoples trust in it will be eroded, nay, that the very concept of rule of law will be at jeopardy. Nothing could be farther from truth than this misconception. By invoking the draconian contempt law to silence critics, the respectability of the judiciary cannot be preserved. Neither the Latin American nor the European civil law systems have the law of contempt. In the United States, the contempt of court by scandalization is no longer in use. It only exists in India, Pakistan, Bangladesh, Burma and Singapore. Law of contempt is contrary to the United Nations human rights conventions. it is against the first principles of natural justice which says that no one shall be a prosecutor and a judge at once. Article 20 (3) protects a citizen against self-incrimination. In contempt of court proceedings, the contemnor has to adduce evidence to establish his innocence. He is required to file an affidavit in support of his defense.
6. I have filed writ petitions in the Kerala High Court and in the Bombay High Court for a declaration that the Contempt of Courts Act is unconstitutional being violative of the fundamental rights, the same were admitted and have been remaining pending for the last five years.
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Mathews J Nedumpara
President
National Lawyers' Campaign For Judicial Transparency and Reforms