Scandalising the Court
by Vinod A. Bobde
Cite as : (2003) 8 SCC (Jour) 32
Scandals and scandalising
A scandal is a thing or a person causing general public outrage or indignation and to scandalize someone is to offend the moral feelings, sensibilities etc. or to shock1. Quite a few people behave in a scandalous manner and many of them are men and women who hold office in the organs of State such as the governments, legislatures or courts. Some engender not just contempt but fury in the public mind. In 1831, Lord Chancellor Simon de Sudbury was killed by a mob2 and the very next year Lord Chief Justice Cavendish was tried in a mock court by the people and sentenced to death3. King Alfred reportedly hanged forty-four judges in the 9th century AD as homicides for giving false judgments.4 No wonder that at Runnymede, by the historic Magna Carta of 1215, the King undertook not to sell justice.
There were, to be sure, judges who did not breach the Magna Carta and sell justice or abuse their powers as judges but nevertheless indulged in oddities bordering on the scandalous. Lord Thankerton used to indulge in his hobby of knitting on the Bench or of talking too much and interrupting the counsel. Then there were judges who slept on the Bench or who drank port while hearing arguments. However, an overwhelming majority of judges have done, and still presumably do their mortal best to discharge their oath of office.5 And there have been men like Lord Chief Justice Holt who stood bravely by his judgment and would not yield before an extra-judicial proceeding of the House of Lords which wanted to question him about the correctness of his judgment. Said Holt: The judgment is questionable in a proper method but I am not to be questioned for my judgment.6
Bearing in mind the meaning of scandalising, it seems that the peculiar offence in the law of contempt turns the concept of scandalizing on its head. The people, instead of being allowed to be scandalized by the behaviour of judges and to express their reaction freely, are expected to observe silence and bound to refrain from scandalising the judges unless they wanted to spend time in jail. Facts do not matter. Truth does not matter. Only the dignity of the court matters and it must be shielded at all costs from being subjected to a searching and scorching scrutiny by the public and the press.
Origin of the power
One could not with impunity speak disrespectfully of the Kings writ when process was served. In 1344, an attorney wrote a letter to one of the Kings counsel reflecting on the judges of the Kings Bench and it was adjudged that it was a scandal upon the court and he was required to find sureties for his good behaviour. In 1345, Robert Hovel made allegations against some justices in a petition to the King who forwarded it to the Kings Bench which adjudged it to be a slander upon the court. In the 16th and 17th centuries the Star Chamber punished such libels in the exercise of its jurisdiction over criminal libels.7
These instances were sporadic and did not establish the offence of scandalizing the court in the common law. That was done in the latter part of the 18th century, by Wilmot, J. who, curiously enough, observed that he had examined very carefully to see if I could find any vestiges or traces of its introduction, but can find none8, as to the right of the courts to vindicate their own authority.
Mr J. Almon had written in the press that Lord Mansfield, C.J. acted arbitrarily and officiously in court and in chambers. The proceeding did not reach judgment but Wilmot, J. had prepared his opinion and that has come to represent the law of contempt in relation to scandalizing the court or the judges. It appears that Lord Mansfield never looked kindly upon the press and often curbed its freedom. Junius wrote an open letter to him in the Public Advertiser on 14-11-1771, but no contempt proceedings were taken. He wrote:
You will not question my veracity when I assure you that it has not been owing to any particular respect for your person that I have abstained from you for so long. Besides the distress and danger with which the press is threatened, when Your Lordship is party, and the party is to be judged, I confess I have been deterred by the difficulty of the task. Our language has no term of reproach, the mind has no idea of detestation, which has not already been happily applied to you, and exhausted.
Thus, though contempt of court, generally speaking, comprehended conduct which obstructs or interferes with the administration of justice, such as threatening witnesses, jurors or the judge, or disobeying orders of the court, a new head of contempt was established in the common law viz. the act of lowering the authority of the court or scandalising it.
The limitation on the power is that the attack on the judge must be as judge, acting judicially in the discharge of his function of administering justice. A judge may act judicially in or out of court i.e. while presiding in his court room or making judicial orders in chambers. The attack on the judge, acting judicially, is punished as contempt, not for upholding the dignity of the judge but to protect the administration of justice. There must be something more than defamation and, only if the attack were on the judicial conduct of judges i.e. conduct as judges, it would entail the real risk of undermining the public confidence in the administration of justice.
Judges do not need protection from defamatory attacks; the institution requires to be protected from scurrilous abuse. Thus when the judge is not functioning judicially or when the attack on him concerns his activities as an individual i.e. activities unrelated to his judicial functions, there is no scandalizing the court for the administration of justice is unaffected. If, for example, the attack is directed at the fact that the judge is unable or refuses to pay his debts to traders, or at his behaviour or conduct at home or in society, such as indulging in domestic violence or demanding dowry or indulging in licentious or immoral conduct in public places, there can never be any question of contempt of court. The judge may, if so advised, sue for defamation but the court cannot initiate proceedings for contempt. The reason is that the judge is alleged to have done something that has little whatsoever to do with the administration of justice. As Wilmot, J. put it an act of violence upon his person, when he was making such an order, would be a contempt punishable by attachment (but)
striking a judge in walking along the streets would not be a contempt of the court.
The 20th century
All the same, the law, which became entrenched in 1765, began to disappear in just a hundred years. The Privy Council held in McLeod v. St. Aubyn9 that in England the offence of scandalizing the court has become obsolete, but it may still be absolutely necessary in small colonies consisting principally of coloured populations. But in the very next year, in R. v. Gray10 Justice Darling advised the press not to print indecent evidence, Gray was successfully prosecuted for scandalizing the court. It was difficult to see why a judge should advise the press and it was extremely doubtful whether he had judicial power to prevent the press from publishing the evidence in a case. The advice resulted in a splendid piece of prose from Mr Gray, excerpts of which are reproduced hereunder:
If anyone can imagine Little Tich upholding his dignity upon a point of honour in a public house, he has a very fair conception of what Mr Justice Darling looked like in warning the press against the printing of indecent evidence. His diminutive Lordship positively glowed with judicial self-consciousness
. He felt himself bearing on his shoulders the whole fabric of public decency
. The terrors of Mr Justice Darling will not trouble the Birmingham reporters very much. No newspaper can exist except upon its merits, a condition from which the Bench, happily for Mr Justice Darling, is exempt. There is not a journalist in Birmingham who has anything to learn from the impudent little man in horsehair, a microcosm of conceit and empty-headedness
. One of Mr Justice Darlings biographers states that an eccentric relative left him much money. That misguided testator spoiled a successful bus conductor. Mr Justice Darling would do well to master the duties of his own profession before undertaking the regulation of another.11
That the attack on the judges, to amount to contempt, should reflect on the administration of justice and therefore should criticize their judicial conduct or judicial acts done in their judicial capacity, has been emphasized over and over again by the English Courts.12
It seems desirable in the public interest that even if the allegations are of corruption against judges or there are imputations of improper motives to them in discharging their functions, they are not contemptuous if they can be proved and it is for the public good that such charges should be made whenever the facts warrant the levelling of such charges.
The recent Privy Council decision
Quite recently, the Privy Council held as under in Ahnee v. DPP13:
Moreover, it must be borne in mind that the offence is narrowly defined. It does not extend to comment on the conduct of a judge unrelated to his performance on the Bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern
. But so far as Ambard case may suggest that such conduct must invariably be an offence, Their Lordships consider that such an absolute statement is not nowadays acceptable. For example, if a judge descends into the arena and embarks on extensive and plainly biased questioning of a defendant in a criminal trial, a criticism of bias may not be an offence. The exposure and criticism of such judicial misconduct would be in the public interest. On this point Their Lordships prefer the view of the Australian courts that such conduct is not necessarily an offence. R. v. Nicolls.
The view in Ambard14 referred to above and found, as an absolute statement of the law, unacceptable nowadays, was as under:
The path of criticism is a public way: the wrong-headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.
The Phillimore Committee, set up by Lord Hailsham, L.C. in 1971, delivered its report in 1974. It was of the view that there is need for an effective remedy against imputations of improper or corrupt judicial conduct15 but recommended that:
Scandalizing the court should cease to be part of the law of contempt. Instead, it should be made an indictable offence both in England and Wales and in Scotland to defame a judge in such a way as to bring the administration of justice into disrepute. Proof that the allegations were true and that publication was for the public benefit should be a defence. In England and Wales, this should be made a branch of the law of criminal libel.16
Just before the Phillimore Committee was set up, the law had been stated by Denning, M.R.:
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than the freedom of speech itself.17
The following passages from Att-Gen v. BBC18 are noteworthy:
The description contempt of court no doubt has a historical basis but it is nevertheless most misleading. Its object is not to protect the dignity of the court or the judges but to protect the administration of justice.19
It is high time, I would think, that we rearranged our law so that the ancient but misleading term contempt of court disappeared from the laws vocabulary.20
In 1984, Viscount Diplock called the offence of scandalizing the judges virtually obsolescent in England and noted that the Contempt of Courts Act, 1981 does not deal with it21.
The American view
The American Supreme Court has long since discarded the obsolete offence of scandalising the court. The American courts have, since Schenk22 preferred to test all abridgements of free speech by the clearandpresent-danger doctrine. In Bridges23 a case concerning expression while proceedings were pending, the Court has given extremely strong reasons for not taking contempt proceedings, which should, it is respectfully submitted, commend themselves for acceptance of our judges.
Justice Hugo L. Black delivering the majority opinion said:
And an enforced silence, however limited, solely in the name of preserving the dignity of the Bench, would probably engender resentment, suspicion and contempt, much more than it would enhance respect.24
Justice Felix Frankfurter, even in his dissenting judgment, emphasized the public responsibility of judges thus:
There have sometimes been martinets upon the Bench as there have been pompous wielders of authority who have used the paraphernalia of power in support of what they call their dignity. Therefore the judges must be kept mindful of their ultimate public responsibility by a vigorous stream of criticism expressed with candour, however blunt.25
In the United States, Federal Judge James H. Peck took contempt proceedings against Mr Luke E. Lawless, a lawyer, for writing a critical piece on his judgment. Lawless moved the House of Representatives for impeachment of Judge Peck. The matter was referred to the Judiciary Committee and Judge Peck filed his reply and the matter ultimately went to the Senate for the trial of Judge Peck. The article of impeachment charged Judge Peck
with intention wrongfully and unjustly to oppress, imprison, and otherwise injure the said Luke Edward Lawless, under color of law
(and) order that (he) should be committed to prison for the period of twenty-four hours, and that he should be suspended from practising as an attorney or counsellor at law
to the great disparagement of public justice, the abuse of judicial authority, and to the subversion of the liberties of the people of the United States26.
The final vote in the Senate was of acquittal though by the narrow margin of one vote.
However, the impeachment attempt resulted in the man who led the impeachment on behalf of the House, Mr Buchanan, to introduce a Bill in the House which led the Congress to enact a law declaring that the court had no power to punish constructive contempts i.e. words spoken or written other than those uttered in or very near the court.
Judge Pecks case shows that at least the Americans considered the liberty of citizens to be too precious to be placed in the precarious and arbitrary clutches of constructive contempts and that judges who seek to take it away commit an impeachable high misdemeanour.
Time for change
It is high time that an offence that was created in the latter part of the 18th century and was nearly buried a hundred years later and is now considered an affront to democratic free speech should be given a quietus, unless our judges think that they belong to a small colony in a small island consisting principally of coloured populations. It is necessary to examine in each case whether the judge by his conduct has not himself brought the judiciary into disrepute. If so, there is case for purging him from the institution, not for proceeding in contempt against those who bring the misconduct to the notice of the public. Parliament must intervene by amending the Act of 1971 and the Constitution, if necessary.
Impact of allegation of judges misbehaviour in personal life on the administration of justice
It is said that if you show up judges in a bad light generally e.g. by saying they are liars, womanizers, wife-beaters, dowry-takers or otherwise lacking in high morals in their personal life, what is conveyed to the public is that such judges are unfit for administering justice and hence the public confidence is undermined. Therefore, the defamatory attack on judges amounts to contempt of court. This is wholly untenable. Such conduct calls for the exercise of the power of removal and punishment of the judge for contempt of court. He lowers the dignity of the court, not the press.
What if the basis of the attack on the judge cannot be factually established?
The law of defamation is that when an attack is made on someones reputation, an action lies and the defendant may, if he can, set up the defence of truth. If he fails to prove the truth of his allegation about the plaintiff, or it is found that there was no foundation in fact at all for the allegation, the plaintiff will succeed. In contempt proceedings, the truth or otherwise of the allegation against a judge is irrelevant. Truth is not yet a defence in the contempt jurisdiction, though courts are supposed to be, and in other cases, invariably are, guided by the motto Truth shall prevail satyamev jayate. Thus, in libel actions, an untruth leads to liability and in contempt proceedings, the allegation results in conviction regardless of the truth of the allegation. In contempt, since it is wholly immaterial to inquire into the truth of the allegation it matters not whether the allegation is wholly or partially true or untrue. The allegation may be a figment of imagination (though this is rarely, if ever, the case), it may have some basis in fact so as to create a strong suspicion as to the truth of the allegation but, in any case, the falsity is as much irrelevant to contempt as the truth is.
Where, therefore, there is a mere libel upon a judge by a false allegation, he would be well advised to deny the truth of the allegation. As the Privy Council said:
If the facts were as alleged they admitted of criticism
. A simple denial in public
would at once have allayed the trouble. If a judge is defamed in such a way as not to affect the administration of justice he has the ordinary remedies for defamation if he should feel impelled to use them.27
But if the court cannot take contempt proceedings because the libel does not amount to scandalising the court for the reason that the attack is not on the judge in the performance of his judicial duties, contempt proceedings will not properly lie only because the allegation cannot be proved or is baseless in fact.
In a given case, it is possible that for certain reasons, it is not possible to prove an allegation. It is not unreasonable to assume that evidence can be prevented from coming forth in certain matters and that such cases do not reach court ever. All trials aim at finding the truth or untruth by following the legal discipline of adjudging a fact proved, not proved or disproved. The regime involves examination and cross-examination of both parties. This is the normal process of fact-finding. The in-house mechanism evolved by the courts viz. appointing Committees which go into the matter for the information of the Chief Justice of India is unsatisfactory, to say the least. In contempt proceedings, fact-finding is an anathema because the truth is happily irrelevant and all that the court is concerned with is the effect or tendency of the allegation. For this reason it matters not that the allegation is false or unproved. We must remember the wise saying that absence of evidence is no evidence of absence.
The Supreme Court has now effectively acquired the power to appoint the higher judiciary. The word consultation was held to mean concurrence, leading to primacy of the Chief Justice, for insulating judicial appointments to the higher judiciary from executive interference on extraneous grounds. Unfortunately, the Court did not, or could not, find any way to wield the power of disciplining judges. However, the Supreme Court has, from time to time, set up Committees of Judges to go into allegations against judges. The Court has acknowledged in its latest judgment that the report of the Committee which went into allegations in the press that some judges of Karnataka High Court had allegedly indulged in scandalous conduct, is confidential and need not be made public because that might do more harm than good. The Court has also held that the enquiry conducted by the Committee is not under any law and neither peer judges nor the Chief Justice have any disciplinary power over judges. If the enquiry report is a non-legal piece of paper, it is quite worthless to the public and no value at all should be attached to it either by the High Court or the Supreme Court.
One thing is clear. The in-house mechanism leads nowhere. It is not legal. It does not conduct a proper fact-finding exercise. It is confidential. It does not even result in a public denial or affirmation of the allegations made against the judges concerned. Plainly, it is not intended to infuse confidence in the public or to clear doubts about errant judges.
Articles 19(1)(a), 19(2), 215 and 246 read with Entry 14, List III of the Constitution
Article 215 preserves the inherent power of the High Court including its power to punish for contempt of itself. Article 246 gives power to Parliament to make a law with respect to contempt of Court. It is this law that has to pass the test of reasonableness under Article 19(2) to be an effective abridgement on the freedom of speech.
In any case, Article 215 was not intended to introduce the common law of contempt of court in the unbridled manner that it existed in England earlier. In fact in 1950, the power to punish for scandalizing has fallen into disuse. Ambard had not been successfully prosecuted in 193628 and in Blackburn case29 in 1968, the Court declared that its dignity must rest on surer foundations. Hence, there is no warrant for saying that Article 215 imported the ancient Almon principle, of 1765 vintage, in its full plenitude.
It must not be forgotten that the Constitution framers had guaranteed the freedom of speech and to use the words of Justice Black in Bridges, one of the objects of the Revolution was to get rid of the English common law on liberty of speech and of the press30 If we substitute the word Revolution by Independence, the observation fairly applies to the Indian Constitution.
Moreover, Article 215 itself merely preserves the power to punish; it does not either define contempt or even indicate the heads of contempt, or the defences available or the procedure for punishment or the extent of punishment or the right of appeal. Thus, the substantive and procedural law of contempt is to be found in the Act of 1971. So far as contempt, which does not involve freedom of speech, is concerned, e.g. disobedience of an order of court or obstructing the course of justice, Article 19(1)(a) is not attracted. But where the offence alleged is the scandalizing of court or lowering of the authority of the court by words spoken or written, the reasonableness of the law can be tested. In so testing reasonableness, the width or scope of scandalising in the present day and age and in a large democracy as ours, would have to be read narrowly to ensure that the offence is reasonably confined to limits so as not to unduly restrict the freedom of speech.
It is submitted that on the law as it stands, the offence of scandalizing has to be reconciled reasonably with the freedom of speech, which is lifeblood of democracy. If the judges will not regard the freedom of speech in this largest of democracies with the respect it deserves, Article 19(1)(a) will be robbed of its content because it is the judiciary alone which is duty-bound to uphold the rights of the public and of the press. It would indeed be sad if the judiciary is found to be wanting in the high task of upholding the right to comment on and criticize the conduct of judges who are, in the ultimate analysis, accountable to the people. Their independence is secured so that citizens rights can be fearlessly upheld. We cannot countenance a situation where citizens live in fear of the Courts arbitrary power to punish for contempt for words of criticism on the conduct of judges, in or out of court.