SCANDALIZING THE COURTS – GROUNDS FOR CONTEMPT: CRITICAL ANALYSIS OF P N DUDA V. V P SHIV SHANKAR BY - YAALESWAR
AUTHORED BY - YAALESWAR
Introduction:
India
is touted as one of the greatest democracies of the world. The supremacy
of the Constitution is fortified
and protected by an independent judiciary. Judicial
institutions have always been the sentinel on qui vive especially the constitutional courts to the rights of the
people of India. In this paradigm, what will happen if The Independent Judiciary
becomes despotic? Rather than guarding the rights of the people,
it abridges them. This article
aims at answering this question.
Contempt
of court is any action which aims at defying the authority of the court, which hampers the regular working of
court and interferes with the process of imparting
of justice. It may include any
disrespect and disregard to any judge, or
judicial court, or both.
In India,
it is the Constitution which
provides power to courts, for their
administration of justice. Article 129, Supreme Court to be a court of record-
the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
Article 215, High Court shall be a court of record-Every High Court shall be a court of record and shall have the
powers of such a court including the power to punish for contempt of itself.
Article
142(2)- subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India,
have all and every power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or
the investigation or punishment of any contempt of itself.
The Contempt Of Court Act, 1971, defines two different types of contempt
of Civil contempt defined under section, 2(b) as means willful disobedience to any judgment, decree, direction, order, writ or other process
of a court or willful breach of an undertaking given to a court; and the other is Criminal contempt defined under section, 2(c) as means the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise)
of any matter or the doing of any
other act whatsoever which:
1.
scandalizes, or tends to scandalize, or lowers or tends
to lower the authority of, any court; or
2.
prejudices, or interferes or tends to interfere with, the
due course of any judicial proceeding; or
3.
interferes or tends to interfere with, or obstructs or
tends to obstruct, the administration of justice in any other manner.
There is a limitation period for
initiating contempt of court proceeding, which is defined under section 20 of the Act that is within one year
from the date on which the contempt
is alleged to have been committed. Section 12 defined the punishment for contempt of court as,
simple imprisonment for a term which may extend to six months, or with fine
which may extend to two thousand rupees, or with both.
CASE BRIEF:
P N Duda v. V P Shiv
Shankar Equivalent citations:
·
1988 AIR 1208,
·
1988
SCR (3) 547
Bench: Mukharji,
Sabyasachi (J)
Petitioner: P.N. DUDA
Respondent: P. SHIV SHANKAR & OTHERS
Date
of Judgment: 15/04/1988
ACT
Contempt of Court Act, 1971 - Praying for initiation of proceedings for contempt
of Supreme Court Under Section 15(1), (a) and (b) of Read with Rule 3(a) In P.N. Duda v. P. Shiv Shanker,
(1988) 3 SCC 167 the respondent, Shri P.
Shiv Shiv Shanker, who was a former judge of the High Court and was the Minister for Law, Justice and Company
Affairs delivered a speech which was said
to be contemptuous. A petition was filed by the petitioner P. N. Duda who was an advocate but Court declined to initiate contempt proceedings. It was held that Shri P. Shiv Shanker
was not guilty of
contempt of Court.
Having held so, the Court went
on to decide whether the petition could have
been entertained on behalf of Shri Duda. In the said petition, Shri Duda
had written a letter to the Attorney
General seeking consent for initiating contempt proceedings against Shri P. Shiv Shanker. A copy of the said
letter was also sent to the
Solicitor General of India. While seeking consent, the petitioner had also stated that the Attorney General
may be embarrassed to give consent for prosecution of the Law Minister and in view of the said allegations, the Attorney General felt that the credibility
and authority of the office of the Attorney
General was undermined and therefore did not deny or grant sanction for prosecution. The Court held that the
petitioner could not move the Court for initiating
contempt proceedings against the respondent without consent of the Attorney General and the Solicitor General.
The Supreme
Court observed that the provision of contempt of court should not be used by judges to uphold their own
dignity. In a free democracy, as India, ideas,
criticisms about the judicial system or the judges should be welcomed, so long as criticisms do not impair
or hamper the
administration of justice. Disapproving of the tendency among judges to treat even technical
violations or unintended acts as
contempt, a bench headed by Justice R V Raveendran said:
It is
possible that it is done to uphold the majesty of courts, and to command respect. But judges, like everyone else,
will have to earn respect. They cannot demand
respect by demonstration of power
FACTS OF THE CASE:
The facts of the Case involved
that the Respondent No. 1, Shri P.Shivshankar,
Minister of Law, Justice and Company Affairs at the relevant time,
delivered a Speech at a Meeting of the
Bar Council of Hyderabad.
It was alleged by Petitioner that in that Speech Respondent. No. 1 made Statements
derogatory to the dignity of the Supreme Court, Attributing to the Court partiality towards affluent people
and using extremely intemperate and undignified
language,and that the speech contained slander cast on this court both in respect of the judges and the working of the Court.
The Attorney General and the
Solicitor General of India were approached by
Petitioner to give their consent for initiating Contempt proceedings
but they have declined to deal
with this prayer of petitioner. He stated that he had approached
the Attorney General for India and the Solicitor General of India to give their consent for initiating Contempt
proceedings. The Attorney General and the Solicitor General
having declined to deal with this prayer of the petitioner, an application for initiation of Contempt under section 15(1)(a)
and (b) of the Act read with Explanation (1) and Rule 3(a), (b) and (c)
of the contempt of Supreme
Court Rules, 1975, was made, wherein Shri P. Shiv Shankar,
the Attorney General, the Solicitor General were made parties. The Court issued notice.
In the meantime, Shri R.N.
Trivedi, Advocate, filed an Application Claiming right to be impleaded as a party, stating that the Attorney
General and The Solicitor General
should not have been made parties to the Contempt Petition and that the alleged non-exercise of the
jurisdiction by the Attorney-General and Solicitor
General had not Constituted Contempt within the meaning of Section 2(c) of the Act.
The Court declined to initiate
the Contempt proceeding, dismissed the petition and disposed of the application filed by Shri. R.N. Trivedi.
It is mentioned that any
Criticism about the Judicial System or the Judges which hampers the administration of Justice or which erodes the
faith in the objective approach of
Judges and brings administration of justice into ridicule, must be prevented. Faith in the administration of
Justice is one of the pillars through which
democratic institution functions and
sustains.
An Application for initiation of contempt under Section 15 (1), (a) and (b) of the Act read with Explanation (1) and
Rule 3 (a). (b) and (c) of the Contempt of Supreme Court Rules, 1975 Was made, where in Shri P.shiv Shankar, The Attorney General and The Solicitor General were made parties.
The Respondent No. 1, filed an
Affidavit in response to the notice issued by
Court. He Stated that he had delivered
the speech on the subject
of accountability of the
Legislature, Executive and the Judiciary and had made Comments on the accountability of the Three Organs and the theoretical implications Thereof.
He also Stated that he had
intended no disrespect to any of the institution or its functionaries much less the Supreme
Court.
It was further Stated
that the Contempt
petition was not maintainable without
the Consent of the Attorney General or The Solicitor
General.
It is provided that in the free
market place of Ideas, Criticism about the Judicial System or Judges should be welcomed, So long as such criticisms
do not impair or hamper the administration of Justice.
In this Case, the court had
examined the entire speech. Shri P.Shiv Shankar had examined the Class Composition of the Supreme Court. His view
was that the Class Composition of any
instrument indicated this predisposition, prejudices. This is inevitable. The intuition more subtle than major premise
on which the decision will depend, is
the pride the prejudice of a human
instrument of a Judge through which
objectively the Judge seeks to administer justice according to law.
It was pointed out by Sabyasachi
Mukharji that there were passages in the Speech,
which torn out of context might be liable to be misunderstood, by reading
the speech as a whole and bearing
in mind the selected audience
to which it was addressed,his lordship agreed with Sabyasachi Mukharii,
that no Contempt had been Committed.
ISSUES
i.
Whether
the Attorney General and the Solicitor General could be made parties
to the Contempt application.
ii.
Whether their
action or inaction
was justiciable at all in any proceeding.
iii.
Whether the speech made by Shri P. Shiv
Shankar had amounted to Contempt
of the Court or in other words whether the speech and the effect of bringing the Court into disrepute.
JUDGEMENT:
The Court pointed out that the
administration of Justice and Judges are open to public Criticism and Public Scrutiny.Judges have their
accountability to the Society and
their accountability must be judged by their conscience and oath of their office that is to defend and uphold
the constitution and the laws without fear and favour.
Any criticism about the Judicial
System or the Judges which hampers the administration
of Justice or which erodes the torn out of context might be liable to be misunderstood but by reading the
speech as a whole and bearing in mind the select audience to which it was addressed,his Lordship agreed with Sabyasachi Mukharji.J, that no Contempt
had been Committed.
The Affidavit of the Respondent
should be accepted as its face value that the
speech was only a theoretical dissertation and that he intended no
disrespect to this Court or
its functioning.
While discussing other issues the Court came into Conclusion that -
a)
This
petition, if treated as one filed under Section 15(1) read c. with rule 3(a) is not in proper form and, if treated as
one filed under rules 3(b) and 3(c), is not maintainable
as it is not filed by the Attorney General/Solicitor General or by any person with hisconsent
b)
In either event the petitioner should not have added to the petition,
respondents other than the person alleged to be guilty of contempt of
court and their names
should be deleted from the array of the parties.
c)
In this case, the Attorney General/Solicitor General refuses consent
or declines to act, their decision is not judicially reviewable and petitioner's remedy is to approach
the Court for action
under rule 3(a).
d)
In this case, the Attorney General/Solicitor General acted properly
in declining to deal with the
petitioner's application either way; and
e)
The
petition was nothing more than information under rule 3(a) on which this Court may or may not take suo mot
action and there is no need to initiate proceedings against
respondent No. 1 for contempt of court.
The Chief Justice agreed with the other two
learned Judges in that decision that in
those facts the proceedings should be dropped.
Krishna Iyer, J. in his judgment
observed that the Court should act with seriousness and severity where justice is jeopardised by a gross and/or unfounded attack on the Judges, where the
attack was calculated to obstruct or destroy
the judicial process. The Court must harmonise the constitutional values of free criticism, and the need for a
fearless curial process and its presiding functionary, the judge. To criticise a judge fairly albeit fiercely,
is no crime but a necessary right. Where freedom of
expression subserves public interest in reasonable
measure, public justice cannot gag it or manacle it. The Court must avoid confusion between personal
protection of a libelled judge and prevention
of obstruction of public justice and the community's confidence in that
great process. The former is not
contempt but latter is, although overlapping spaces abound. The fourth functional canon is that the Fourth Estate
should be given free play within
responsible limits even when the focus of its critical attention is the court, including the highest court.
The fifth normative guideline for the Judges to observe is not to be hypersensitive even where distortions and criticisms
overstep the limits, but to deflate vulgar denunciation by dignified bearing, and the sixth consideration is
that if the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious
beyond condonable limits,
the strong arm of the law must strike a blow on him who challenges the supremacy of the rule of law by fouling its sources and stream.
Therefore,
The Petition Was Dismissed.
CONCLUSION:
In case of P.N. Duda v. P. Shiv Shanker, the Supreme Court observed that the judges cannot
use the contempt jurisdiction for upholding
their own dignity. Our country
is the free marketplace of ideas and no one could be restricted to criticise the judicial system unless this
criticism hampers the ‘administration of justice’.
The major the objective of the
provision of contempt of court in any country is to provide a tool to the judiciary that can be used against such
parties, lawyers and those people who
obstruct in the proceedings of court. It
is a very useful and important tool in the hands of
judiciary, to ensure that the orders given by
court in exercise
of the power vested in them shall be obeyed and enforced.
If such a provision would not be
with courts then, it would be a situation of
right, without a mechanism to redress in case of breach of such right.
Contempt of court is, mechanism of
last resort, it is the sword in the hands of judiciary, to punish for noncompliance with its orders.
There many been many instances, when
the integrity and honor of the court has been disdained, and when the punishment for contempt of court was given by the judiciary.
Purpose, Extent & Scope, etc. of the Contempt Proceeding:
1) In order to be guilty of contempt an
intention has to be there to act in violation of the Court’s order, that is, to consciously defy the Court.
2) Court has to be restricted to the
prayer made in application and its scope cannot be enlarged
3) this power has to be cautiously
exercised- It may not be used as a tool for revenge; this discretion also may not be
exercised on mere allegations.
4) The purpose of the Contempt of Courts Act is securing a feeling of confidence amongst people and for due and proper administration of justice, the power
should be exercised with utmost care and caution and sparingly only in the
larger interest of the society.
5) Law of contempt primarily, intended
to maintain dignity of court. This jurisdiction is invoked when offending acts are intentional and/or motivated and/ or attempt has been made to earn small
gains at the cost of hurting system of administration of justice.
6) Wilful conduct is the primacy and basic ingredient of the offence of contempt In India the higher judiciary has inherent powers of contempt. Purpose of
the Contempt of Court, 1971 is to
secure feeling of confidence of people in general and for due and proper administration of justice in the country.
The Courts exercises contempt
jurisdiction sparingly with care and caution.
Still, the Contempt of Court law is very complex by its very nature. ? ??
REFERENCES:
1)
P.N. Duda vs V. P. Shiv Shankar & Others, 1988 AIR
1208
2)
The Contempt of Court Act, 1971
3)
Constitution of India
4)
Bar Council of India Rules,
7)
Hindustan Times (Jun 11, 2007), www.hindustantimes.com/indiaTEMPORARY RELEVANCE &
APPLICABILITY IN INDIA
11) P.N. Duda Vs.
V. P. Shiv Shankar & Ors [1988] INSC 106 (15 April 1988), https://www.latestlaws.com/