‘Respect is earned and cannot be forced by law’

Interview with Justice Madan B. Lokur.

THE CONVICTION OF THE ADVOCATE Prashant Bhushan by the Supreme Court on charges of criminal contempt has evoked a wide range of reactions among eminent jurists and members of the Bar. About 3,000 eminent persons from all walks of life, including 12 former judges, issued a statement in support of Prashant Bhushan. Justice Madan B. Lokur was one of them.

An outspoken critic of the judiciary and its functioning as well as government policies, Justice Lokur is at present a judge in the Supreme Court of Fiji. A former judge of the Supreme Court of India, he was also Chief Justice of the Andhra Pradesh and Gauhati High Courts. He was one of the four Supreme Court judges who held an unprecedented press conference in January 2018 highlighting the infirmities in the functioning of the higher judiciary.

In this interview to Frontline, he says the law of contempt should be confined to civil contempt only. According to him, there is no need for a separate law for criminal contempt, which should be abolished. Excerpts:

The Law Commission of India, in its report on the Contempt of Courts Act, 1971, said that amending the definition would reduce the overall impact of the law and lessen the respect that people have for courts and their functioning. Do you agree with this viewpoint?

It seems to me that this particular reference by the Law Commission is to the district courts and not to the constitutional courts, that is, the High Courts and the Supreme Court. The Law Commission earlier observed: “Thus, the suggestion to delete the provision relating to ‘criminal contempt’ inter alia ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions.”

In any event, I personally don’t think that amending the definition of contempt by deleting criminal contempt would reduce the overall impact of the law or the respect that people have for the courts and their functioning. Respect is earned and cannot be forced by law.

There has also been a debate on whether the act of contempt should be confined only to cover civil acts of contempt, that is, instances of wilful disobedience of the court. Is this debate relevant? A far larger number of civil contempt cases are pending in High Courts and the Supreme Court than criminal contempt cases. What does this phenomenon indicate?

The contempt law should be confined to civil contempt only, that is, disobedience of an order of the court or wilful breach of an undertaking given to the court. The elements of criminal contempt can be dealt with under the existing criminal law quite effectively and so there is no need to have a separate law for criminal contempt.

It is true that cases of civil contempt are much, much more than cases of criminal contempt and it is for the

justice delivery system to ensure that its orders are complied with. Quite often, disobedience of an order of the court is by a government official. This is very sad and must be spotlighted by the court. Senior officers in the government must take note of this so that orders passed by the court are respected and implemented, otherwise we will sink into chaos.

Some countries, including the United Kingdom with whom we share common legal systems, have abolished the offence “of scandalising the court” in their contempt laws. In 2013, England did away with the law. Do you feel it is time India also did away with it?

The offence of scandalising the court is really criminal contempt and I think we should abolish it, because this kind of an offence can be dealt with under the normal criminal law.

Does having it on the statute books actually inspire public respect or confidence in the judiciary or does the Damocles’ sword of contempt impede free speech and expression as guaranteed under the Constitution?

I really do not see how public respect or confidence in the judiciary can be maintained by a law on the statute books. Public respect or confidence can be earned and maintained only if orders of the court are passed after a fair and impartial hearing and these orders are faithfully implemented and respected by all concerned, including government officers.

The law of criminal contempt can impede the fundamental right to free speech and expression. For example, if there is a criticism about the manner in which a case is being conducted, a court may take offence and describe that criticism as tending to interfere with or obstruct the administration of justice. This will obviously prevent criticism because it is impossible to know how the court will react to a particular critical comment.

Now, with the recent decision of the Supreme Court in the Prashant Bhushan contempt case, criticism may not be taken lightly, but may be dealt with with “an iron hand”.

Is there a model of the contempt law anywhere in the world where the dignity of the court is preserved and, at the same time, the law is not weaponised against the right to free speech and expression?

I have no idea about this and cannot give an answer. But it is unlikely that there will be some kind of a model law on contempt of court. There is however a U.N. Drug Control Programme Model Mutual Assistance in Criminal Matters Bill, 2000, which deals with contempt of court during criminal investigations.

In an explanatory statement, it is noted: “Contempt of court comprises an act of defiance of authority, of which failing to comply with a court order is one example. The punishment for contempt in most legal systems is a fine or committal to prison.”

Essentially, defiance of authority can be dealt with under the normal criminal law and failing to comply with a court order is civil contempt. If this distinction is maintained, a large part of the problem will be solved.

Recently, a member of the Bar made scathing remarks against you and other members of the judiciary following your observations on the Supreme Court in the migrant workers issue. The apex court took scant notice of this. It has been suggested that the member of the Bar was in contempt but the contempt law was not applied to him. Is the danger of a selective and arbitrary application of the contempt law inherent in the law itself?

There is a danger of a selective and arbitrary application of the contempt law in the sense that some judges may ignore an attempt to scandalise the court while others may not. The discretion is inherent and must be exercised judiciously by all judges and in a restrained manner, assuming for the purposes of this question that the law of criminal contempt continues to remain on the statute books.

Some clauses in Section 13 of the Contempt of Courts

Act allow truth as a defence if it was in public interest and bona fide. Do you think courts give enough opportunity to those charged with contempt to establish the veracity or truthfulness of the act? And, in this particular case involving Prashant Bhushan, was adequate opportunity given to him?

My experience is that the courts do give enough opportunity to those charged with contempt of court to establish the veracity or truthfulness of the allegation. I have had occasion in the Supreme Court to deal with what appeared to be prima facie contempt of court but after hearing the alleged contemnor, we realised that there was some bona fide misunderstanding and the benefit of doubt was given to the alleged contemnor and the proceedings dropped. So, really it depends upon each case and each act complained of and no universal rule can be applied.

In the case of Prashant Bhushan, we need to first see whether any contempt was committed by him and then go into the veracity or truthfulness of the allegations. In my view he had only expressed his opinion and therefore there is no contempt committed by him. One may or may not agree with his opinion but surely he has a right to express that opinion.

Can two tweets of Prashant Bhushan shake the foundations of law and bring the administration of justice to disrepute? What is it exactly that brings the administration of justice into disrepute? Isn't freedom of speech and expression an integral component of the processes involving the administration of justice?

I don’t think the two tweets under consideration have brought the administration of justice into disrepute. It is difficult to accept that tweets can have such a massive impact as to shake the foundations of our justice delivery system. Our justice delivery system is set on firmer ground. m