Introduction
In the last outing, we discussed instances in which lawyers have been sanctioned in the United States for crossing the ethical line in criticism of judges. Today, we shall conclude it and move on to the situation in the largest democracy in the world – India – with emphasis on contempt of court (what it is and what it is not, in that jurisdiction), concluding with fair criticism as a shield or subterfuge to attack the judiciary. Kindly, read on.
Cases in which lawyers have been sanctioned (continues)
In re Bank, 20-90010-am (2nd Cir., May 3, 2021), the court publicly reprimanded an Attorney whose conduct included responding to an appellate Judge’s questions during oral argument, by stating, “Are you serious, Judge?” He had also sarcastically commented, “I see that you read the briefs thoroughly”. The court rejected as unsupported and irrelevant the lawyer’s defence that his contumacious comments were triggered by the judges’ poor treatment of him.More serious and more likely to end in discipline are situations where lawyers directly accuse judges of corruption, or politically motivated behaviour. See, e.g., Matter of Dinhofer, 257 A.D.2d 326, 328 (N.Y. 1st Dept 1999) (three-month suspension was slammed on a lawyer for calling a Federal Judge “corrupt” during a telephone conference).
Position in India
Moving on to India, Vanya Verma writes that “while the Constitution of India recognizes the right to freedom of speech and expression in Article 19(1)(a), Article 19(2) states that laws can put reasonable restrictions on this right for a variety of reasons, including “in relation to contempt of court”. He then references another scholar (Sathe, 2001), as outlining “the historical inter-relationship between contempt of court and free expression” as follows:”since the early 1970s when the Supreme court found Keralas’ then Chief Minister, E.M.S. Namboodiripad, guilty of contempt of court for his critical comments on the judiciary as an institution, acrimony has existed between the judiciary’s power to punish for contempt of court and citizen’s fundamental rights, freedom of speech and expression, the court has subjugated the most crucial of the fundamental rights – freedom of speech – to the judiciary’s power to penalize for contempt of court. The freedom of speech had been trivialized by a broad contour of contempt of court. As a result, he advised, “Freedom of expression is the most fundamental of the fundamental rights, and constraints on it must be kept to a minimum”.
Only the restrictions necessary to maintain the legitimacy of judicial institutions can be imposed under the legislation of contempt of court. The judges are not required to be protected by the law. Only the judiciary must be protected. A contempt notice issued without due diligence could put those in positions of public trust in jeopardy. The rule must be freedom, and the exception must be a constraint.”
Under Article 19(1)(a) of the Indian Constitution, every person (including municipal councillors) has the right to free speech and expression, which includes reasonable criticism of the law or any executive action. In India, freedom of speech and expression is guaranteed both in the legislature and in local bodies. This is why a lawmaker or a municipal councillor can legitimately voice out his opinions on what he considers to be in the public good. A reasonable exercise of one’s right to free speech and expression, which includes fair criticism, is not to be suppressed for any reason.
Indeed, Section 5 of the Contempt of Courts Act, 1971, provides that a person is not punishable for contempt of court if he or she publishes a reasonable comment on the merits of a matter that has been heard and determined, or if a person publishes a fair comment on the merits of a matter that has already been heard and determined.
What is contempt of court
Contempt is the power of the court to safeguard its majesty and respect, as stated by Smita Chakraburtty (2017). This power is inherent, and it is recognised in the High Court’s and Supreme Court’s constitutions. The Contempt of Courts Act of 1971 regulates but does not limit this power.Both civil and criminal contempt are defined under the 1971 Contempt of Courts Act. Civil contempt refers to willful disobedience to any court judgment, whereas criminal contempt can be invoked if an act tends to scandalise or lower the authority of the court or tends to interfere with or obstruct the administration of justice. The effect on the judicial process and the authority of the courts are used to determine whether conduct is contemptuous. According to S.P. Sathe (1970), the intent of the accused in a contempt action is irrelevant. What matters is the impact of his act or the likelihood of it having an impact on the administration of justice. Any conduct that undermines the administration of justice or otherwise interferes with or tends to corrupt it must be avoided.
P. Chandrasekhar (2002) went on to say that actual scandalization or lowering of the court’s authority is not required. It suffices if it has the potential to cause controversy or undermine the court’s authority. The Supreme Court of India has insisted that reasonable criticism of decisions is always permitted and that defaming a judge is distinct from contempt of court. That was so held held in the case of Brahma Prakash Sharma v. State of Uttar Pradesh LAWS(SC)-1953-5-18Under to Section 5 of the Act, “fair criticism” or “fair comment” on the merits of a final decision does not constitute contempt. The judgment of what is “fair” is, however, left to the judges’ decision. Before 2006, even the truth could not be used as a defence in a contempt case. According to Rahul Donde (2007), “truth has been included as a defence with the enactment of the Amendment Act of 2006, but with the restriction that it can be used as a defence only if it is in the “public interest.” The judge has complete discretion over what constitutes public interest. The truth cannot be used as a defence unless the supposedly contemptuous behaviour was both genuine and in the public interest.
Criticism of a court: when it does not amount to contempt
Vanya Verna opines that it is the duty and obligation of lawyers to criticise the courts. He sees this as one of their most essential societal responsibilities. He insists that informed criticism of the courts and their rulings is not only a right but also an ethical obligation put on every member of the Bar.He lists two methods to criticise the Supreme Court in general. They are as follows:
Firstly, critic can present some fundamental principles and argue that the pattern of decisions or a particular decision is inconsistent with these principles. For example, he might argue that constitutional decisions should be based entirely on the document’s terms and the framers’ intent; that the court should make decisions based on prevalent opinions about core values, or that antitrust rules should be read to promote allocative efficiency. Decisions that are contradictory to these initial principles may be labelled as incorrect or misguided by the critic. The critics who use this strategy base their arguments on documents, proceedings, and norms that are not related to the court.
Secondly, a critic can critique the court’s performance as an institution. This is the subject of the second type of criticism.He argues that the critic can argue that the court is too frequently divided; that it fails to sufficiently explain its rulings; or that it makes decisions that contradict one another. In other words, he could claim that the court is divided or that precedent is ignored. The duty on the part of lawyers is to identify and discuss incorrect actions by the courts, subject only to the condition that the criticism is motivated by a good-faith desire to improve the law and the legal system. Malicious or false statements about a Judge, or disruptive or contemptuous conduct in the courtroom, of course, cannot be tolerated.
Fair criticism as a shield to criticize the judiciary
Fair criticism of the position stated in a judicial pronouncement, or even other types of judicial activity, is consistent with the public interest and public welfare that judges are sworn to serve and uphold in such circumstances. As a result, awareness among judges that they can or have erred in their judgments would provide much-needed fuel to the judicial system. Verna believes that another perspective, a new dimension, or insight must always be welcomed; and that a realization that would enhance the majesty of the rule of law will only be possible if the doors of self-assessment, in the light of the opinions of others, are kept open by Judges.
This is why, in the case of Lalit Kalita and others v. Unknown, decided on 4th March, 2008, it was held that the judiciary is not overly sensitive to criticism. Indeed genuine criticism may be welcomed because it allows for self-reflection. After all, judges are not infallible, because they are people and they frequently make mistakes unintentionally and as a result of their preconceptions. Thus, to Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court (1973), “if judges decay, the contempt authority would not save them”.
In the case of Rama Dayal Markarha v. State of Madhya Pradesh, (1978), the court held that fair and reasonable criticism of a judgment that is a public document or a public act of a judge involved in the administration of justice is not considered contempt. It held that such reasonable and honest criticism should be encouraged because no one, including judges, can claim infallibility. It held further that such criticism could reasonably claim that the judgement was erroneous; or that an error was made, both in terms of law and known facts.
However, alleging that the judge had a predisposition to convict, or purposefully took a turn in the discussion of evidence, because he had already made up his mind to convict the accused; or has a wayward bent of mind; attributing motives; a lack of dispassionate and objective approach and analysis; and pre-judging of the issues. All these would bring the administration of justice into disrepute. A criticism must be measured by the criterion of whether it ridicules the administration of justice; or hinders it. For example, allegations of bias, predisposition, subtle prejudice, and prejudging the issues and that an investigation into the conduct of the judge will be conducted who delivered the judgment as he is to retire within a month; and a wild allegation that judiciary has no guts, no honesty and is not powerful enough to punish wealthy people, all could bring the administration of justice into ridicule and disrepute.
(To be continued)
Thought for the week
“I much prefer the sharpest criticism of a single intelligent man to the thoughtless approval of the masses”. (Johannes Kepler)