CONTEMPT PROCEEDINGS AND THE ROLE OF JUDICIARY: INDEPENDENCE AND ACCOUNTABILITY BY - PROTEEK MOTILAL
CONTEMPT
PROCEEDINGS AND THE ROLE OF JUDICIARY: INDEPENDENCE AND ACCOUNTABILITY
AUTHORED BY
- PROTEEK MOTILAL
ABSTRACT
This research paper explores the
complex and often controversial topic of "Contempt Proceedings and the
Judicial Role: Balancing Independence and Accountability." The main
objective of this study is to thoroughly analyze the multifaceted role of the
judiciary in both initiating and adjudicating contempt proceedings, with a
specific focus on maintaining a delicate balance between judicial independence
and accountability.
In a democracy, the people are
considered to be the ultimate decision-makers, and all authorities - including
judges, legislators, ministers, and bureaucrats - are public servants. It is
important to recognize that the people of India hold sovereignty, and therefore
all authorities, including the courts, serve the people. As the masters, the
people have the right to evaluate their servants if they do not fulfill their
duties properly.
KEYWORDS- Contempt, Civil, Criminal,
Independence, Accountability
INTRODUCTION
Contempt of court refers to any
action or illegal activity that questions or challenges the authority, honesty,
or superiority of the court. Such misconduct could involve disregarding
appeals, exerting influence over witnesses, concealing evidence, disrupting the
trial process, or disobeying an official court directive. These infringements
can be committed by attorneys, judges, court staff, jurors, witnesses,
protesters, or any other individual participating in court proceedings.
Criminal and civil contempt of court
are the two basic categories. A civil or criminal case may experience criminal
contempt. Refusal to abide by a court order in a civil lawsuit may constitute
civil contempt. Instead of penalizing the perpetrator, the sentence imposed is
meant to compel adherence to the particular court order.
Criminal contempt often refers to
significant actions or disruptions that insult the court's authority or
obstruct the court's regular course of business. The penalty is imposed in
order to uphold the legitimacy of the court or the designated judge. So, while
civil contempt has the goal of compliance, criminal contempt has the goal of
punishment.
“Contempt of court is defined as
behavior that is disrespectful or disregardful of the integrity of any party
while serving as an official or working in some capacity as a judicial server.”
1. Civil Contempt
Under Section 2(b) of the Contempt of
Courts Act of 1971, it has been described as willful disobedience to any
judgement, direction, order, sentence, or other process of a court or willful
violation of an undertaking given to a court.
2. Criminal Contempt
Criminal contempt is defined in
Section 2(c) of the Contempt of Courts Act of 1971 as the publication of any
matter or the doing of any other act whatsoever that:
(i)
scandalizes
or tends to scandalize, or lowers or tends to lower the authority of, any
court, or
(ii)
prejudices,
or interferes or tends to interfere with the due course of any judicial
proceeding, or
(iii)
interferes
or tends to interfere with or so obstructs.
Penalty for contempt of court
In India, the High Court and Supreme
Court have the authority to punish for contempt of court.
Contempt of court can be punished
with simple imprisonment for a term of up to six months, a fine of up to two
thousand rupees, or both under Section 12 of the Contempt of Court Act, 1971.
In civil cases, however, if the court
believes that a fine is insufficient to ensure justice, the court can sentence
civil prison for six months rather than simple imprisonment.
Contempt under India Constitution
Articles 129 and 215 of the Indian
Constitution empower courts to deal with contempt. While Article 129 empowers
the Supreme Court, Article 215 empowers High Courts to punish people for their
respective contempt if they are caught or are accused of interfering with their
jobs. Although, according to Section 10
of the Contempt of Courts Act of 1971, High Courts have been given special
powers to punish subordinate court contempt.
The Role of Contempt
The judiciary possesses the power of
contempt. It is a necessary power to protect the dignity and authority of the
courts, as well as to ensure that the judicial process is fair and impartial.
There are two types of contempt of
court: civil contempt and criminal contempt. When someone violates a court
order, this is referred to as civil contempt. Criminal contempt occurs when
someone acts in such a way as to undermine the authority of the court or
interfere with the administration of justice. Anyone, including lawyers,
journalists, and ordinary citizens, can be charged with contempt of court. If
someone is found to be in contempt, the court has the authority to impose a
variety of penalties, including fines and imprisonment.
“Contempt proceedings help the judiciary
maintain its independence and accountability. Contempt proceedings help to
ensure that the judiciary can function fairly and impartially by punishing
those who disrespect or interfere with the court process.”
INDEPENDENCE
The judiciary is distinct from the
other two branches of government, the executive and legislative. This means
that the courts are free to make decisions independent of the other branches.
Contempt proceedings help to safeguard this independence by discouraging people
from interfering with the court process.
For example, if a person publishes an
article criticizing the character of a judge, the judge may find the person in
contempt of court. This is due to the possibility that the article could be
interpreted as an attempt to intimidate the judge or influence the outcome of a
case. The court's punishment sends a message that it will not tolerate
interference with its independence.
INDEPENDENT
OF INDIAN JUDICIARY
Following the lifting of the state of
emergency in 1977, which was a blow to the judiciary's independence, and in the
context of executive interference in judicial appointments, the Supreme Court
was called upon to protect the judiciary's independence from undesirable
appointments and arbitrary transfers by the executive. This it did in three
cases: the First, Second, and Third Judges cases.
THE FIRST CASE-
In S.P. Gupta vs. UOI, a Supreme
Court bench of five judges considered the method of appointment of Supreme
Court and High Court judges in 1981. Both Articles 124(2) in relation to
Supreme Court Judges and Art.217(1) in relation to High Court Judges require an
appointment by the President (which means the Executive) after
"consultation" with other functionaries mentioned in the Chief
Justice of India's Articles. The term "consultation" does not mean "concurrence"
in everyday language. According to the debates in the Constituent Assembly,
when some members suggested that the expression should be concurrence rather
than consultation, it was not agreed upon.[1]
THE SECOND CASE-
Ten years later, in 1993, the Supreme
Court constituted a larger bench of nine judges in the case of Supreme Court
Advocates on Record Association v. Union of India to consider the correctness
of the First Judge's case, which had held that the Chief Justice of India did
not have primacy of his opinion. Overruling the First Judge's case, a majority
decided that the CJI was best equipped to assess a judge's worth and that it
was also necessary to eliminate political influence on the judiciary.[2]
THE THIRD CASE-
The case of the Second Judge raised
concerns about the Chief Justice and his senior colleagues' collective opinion.
It was assumed that the CJ would consult with his senior colleagues and that
his recommendation would be widely acceptable and uncontroversial.
However, during Chief Justice
Punchhi's eight-month stint as Chief Justice of India, a number of
recommendations for appointments were deemed contentious, and the Law Ministry
was denied the right to inquire into the scope of the Chief Justice's
consultations. It was even feared that a Supreme Court bench appointed by the
Chief Justice would issue a mandamus ordering the Government to appoint a judge
recommended by him. In these circumstances, the Central Government rushed to
make a reference to the Supreme Court under Section 143(1) in July 1998,
seeking the Supreme Court's opinion.18
According to the court, the CJ must make a
recommendation to appoint the Supreme Court Judge in consultation with four
seniors most puisne Judges of the Supreme Court, and for the appointment to the
High Court, the recommendation must be in consultation with senior most puise
Judges of the Supreme Court.[3]
ACCOUNTABILITY
The judiciary must also answer the
public. This means that the courts must account for their decisions to the
public. Contempt proceedings can aid in ensuring accountability by holding
people accountable in court for their actions.
A person who disrupts a court
proceeding, for example, may be found in contempt of court by the judge. This
is because the individual's actions could be interpreted as an attempt to
obstruct the fair administration of justice. The court is holding the person
accountable for their actions and sending a message that such behavior will not
be tolerated by punishing them.
v Judicial accountability means that
judges are accountable for the decisions they make. It also implies that Judges
will be held accountable for their actions.
v The Judiciary is not held to the same
standard of accountability as the Executive or Legislative branches of
government.
v The reason for this is that the
principles of Judicial Independence and Accountability are sometimes thought to
be diametrically opposed.
v Judicial independence is regarded as
a "critical pillar of liberty and the rule of law." As a result,
making the judiciary accountable to the legislature or the executive will have
an impact on its independence. As a result, special provisions have been put in
place to ensure judicial accountability.
The Judicial Accountability Act:
The Judicial Standards and
Accountability Act will establish judicial standards and hold judges
accountable for their failures. It will also require judges of the High Courts
and the Supreme Court to declare their assets and liabilities, including those
of their spouses and dependents. The Union Cabinet has approved the draught
Judicial Standards and Accountability Bill, 2010, which establishes a
five-member oversight committee to deal with complaints against members of the
higher judiciary. According to official sources, judges will also be required
to declare their assets and file an annual return of assets and liabilities.
All of this information will be made available on the Supreme Court and high
court websites. It will also prohibit judges from having close relationships
with any member of the Bar, particularly those who practice in the same court.
"The enactment of the Bill will address the growing concerns regarding the
need to ensure greater accountability of the higher judiciary by bringing in
more transparency and will further strengthen the credibility and independence
of the judiciary." [4]
Provision for Judicial
Accountability:
v The Indian Constitution provides for
the removal of judges from the Supreme Court of India (Article 124 of the
Indian Constitution) and the High Courts (Article 124) for misbehavior and
incapacity through impeachment.
v The High Court has 'control' over the
subordinate judiciary, according to Article 235 of the Constitution.
v It provides a powerful mechanism for
holding the lower judiciary accountable.
v The Supreme Court of India adopted
the Restatement of Values of Judicial Life Charter in 1997.
v The conduct and behavior of members
of the higher judiciary must reaffirm the public's faith in the judiciary's
impartiality.
Enhancing Judicial Accountability:
v Rapid Justice: Rapid justice is not
only a fundamental right, but also a requirement for upholding the rule of law
and providing good governance.
v Impartial Functioning: It will aid in
ensuring impartial functioning, which will increase public trust in the
judiciary.
v No Legal Obligation: Unlike the
executive, the judiciary is not required by law to prepare annual reports or
present them to Parliament or state legislatures.
v Guardian of the Constitution:
Judicial accountability is more important because a breach of values in the
judiciary is far more dangerous than in any other branch of government because
the judiciary is the guardian of our constitution.
v RTI has a narrow scope: The
information that courts are willing to share under RTI is not too broad.
v Public Trust: The judiciary, as an
institution, must strive to maintain public trust in the established courts in
order to preserve its independence.
v Not directly controlled by the
Supreme Court: Under our constitutional scheme, the high courts are autonomous
constitutional bodies that are not subject to administrative directives from
the Supreme Court.
Improving Judicial Accountability:
v The most significant challenge for
regulating judicial accountability is that the judiciary is an independent
organ, and judges' independence cannot be eliminated.
Any attempt to hold
the judiciary accountable to the legislature or the executive will expose it to
outside pressure. It is extremely difficult to strike a balance between
judicial accountability and judicial independence.
v There is no other way to remove a
judge than through impeachment, and the process is lengthy and complicated.
As a result,
increasing judicial accountability is difficult. Again, if the process is
weakened, judicial independence will be jeopardized.
v Furthermore, the SC and HC have the
power of contempt, which prevents anything from being imposed on the judiciary
without their consent.
Disciplined Judges:
Because the Constitution provided for
the appointment of judges to the Supreme Court and High Courts by the
executive, it was also in keeping with the method that such Judges would be
removed from office by the executive after addressing each house.
To protect the judiciary's
independence from unfounded prosecutions of criminal conduct, the Supreme Court
has prohibited criminal authorities from registering a criminal case against a
judge of a superior court unless the Chief Justice of India is consulted in the
matter, and if the Chief Justice of India is of the opinion that it is not a
fit case for proceeding under the Act, the case will not be registered.
In the absence of an effective remedy
for the removal of a judge, the Bar of one High Court resorted to the
unconventional method of disciplining four Judges by passing resolutions
against them to resign and requesting that the Chief Justice of a High Court
not assign work to them. The Supreme Court ruled that the Bar's methods were
ultra vires because the only method of disciplining judges of a Superior Court
was the Constitutional method of removal in Art. 124(4). In the same case, the
Supreme Court established a procedure for investigating a judge's behavior if
the Bar filed a complaint against him.
The Constitution allows for the
removal of a judge for "proven misbehavior." This is not
specified. Many times, the conduct of a judge necessitates an investigation and
discipline for deviant behavior that does not amount to misbehavior. There is
no mechanism in place to punish those who participate in such deviant behavior.
CONCLUSION
Because many improprieties go
unnoticed behind the iron curtain of the Contempt of Court, the subject of
judicial accountability requires careful and realistic handling given the
variety of aberrations some judges are guilty of. Because it is of colonial
origin, the law of contempt has been overdrawn. Judges, like other
constitutional officers, must face the law if they deviate from or deceive it.
Justice is not a secluded virtue.
The ultimate goal of any type of
judicial discipline is to maintain public trust in the judiciary. The reasoning
behind this concept is simple: "A legal system can function only as
long as the public accepts and abides by decisions rendered by the courts; the
public will accept and abide by these decisions only if it is convinced that
the judges are fair and impartial; anything that tends to weaken that
conviction should be avoided." In other words, justice must not only
be done, but it must also appear to be done. As a result, judges are required
to avoid not only actual impropriety but also the appearance of impropriety in
all of their activities.
The goal is to build a structure that
is both powerful and easily accessible to the general public. Let the Bench-Bar
Accountability to Indian Humanity be high on the national, even constitutional,
agenda. The judges themselves should take steps to create a code of conduct.
However, it is deeply concerning to
see that the judiciary is maintained at a high level. The scenario of great
judges carrying out their great responsibilities as judges implies a high
regard on the part of the people for the judiciary, which is the repository of
justice incarnate. If there are some delinquents, there must be mechanisms for
testing correction lest the entropy situation pathologically spread or
deteriorate into a popular desire for vengeance.
Because judges may not be scared of
paper tigers, there must be monitoring machinery, and the code must both expose
and, if ignored, hit. If a sentinel on the qui vie is to be effective, it must
have statutory sanctions and powers. A collective ombudsman with absolute
autonomy, mobility, fair procedure, and graduated punitive/corrective and
recommendatory authority, with versatility conditioned by situations, is a public
necessity. A purposeful, competently trained infrastructure with investigative
skills, technological aids, and delegated powers must be planned, learning from
the experience of other countries, and remembering the native diseases. A
judicial super ombudsman comprised of the most respected, highly independent
team of three judges, one a retired Supreme Court judge, preferably a former
Chief Justice without blemish, and one from the High Courts, preferably a
former Chief Justice of unsullied record, and the third, a retired judge with
vast experience in public life, involvement in public issues, and
extra-judicial, even administrative career, may fill the bill. An Advisory body
with high national standing may serve as an auxiliary.
Finally, the Supreme Court nicely
stated the concept of judicial accountability, criticism, public scrutiny, and
judicial independence in the Re D.C. Saxenas case:
".... justice administration and
judges are open to public criticism and scrutiny." Judges are accountable
to society, and their accountability must be judged by their conscience and
oath to their office, namely, to defend and uphold the Constitution and laws
without fear or favor. As a result, the judges must do what is right in the
circumstances that have been assigned to them. Any criticism of the judicial
system or the Judges that impedes the administration of justice or undermines
faith in the objective approach of the Judges and brings the administration of
justice into disrepute must be avoided. The attempt results in contempt of
court proceedings. Decisions can be criticized. It is not necessary to
attribute motives to the judges. One of the pillars on which democratic
institutions function and survive is trust in the administration of justice.
Criticism of the judicial system or judges should be welcomed in a free
marketplace of ideas, so long as it does not impair or hinder the
administration of justice. This is how the courts should exercise their and the
Judges' powers to punish a person for alleged contempt by taking notice of the
contempt on their own initiative or at the request of the litigant or the
lawyer... There is no doubt in the law that in a free democracy, everyone has
the right to express his or her honest opinion about the correctness or
legality of a judgement or sentence or a court order, but he must not go too
far. While he has the right to express his criticism objectively and detachedly
in a dignified and respectful tone with moderation, freedom of expression
should not be interpreted as a license to violently attack a judge. Subject to
that, honest criticism of the administration of justice is welcomed, because
justice is not a cloistered virtue and deserves to be scrutinized with respect.
Any citizen has the right to express his or her honest opinion about the
correctness of a judgement, order, or sentence in dignified and moderate
language, pointing out any error, defect, or illegality in the judgement,
order, or sentence. That is after the event has occurred as a
post-mortem."
Finally, there is this issue before
us. "All power tends to corrupt," said the great historian,
Lord Acton. "Unconditional power corrupts absolutely." Who
will have control over the exercise of power? "Someone must be
trusted," Lord Denning famously said. Let it be up to the
Judges."