JUDICIAL ACCOUNTABILITY IN TIMES OF COVID-19

Independence of the judiciary is one of the essential traits of a democratic government. However, this does not mean that the judiciary, i.e. the judges or court officials should have unfettered power.  Judges too must uphold the highest standards of integrity and be held accountable to the public. Where judges or court personnel are suspected of breaching the public’s trust; fair measures must be in place to detect, investigate and sanction corrupt practices. Formerly, several attempts have been made in the form of the Judicial Accountability Bills of 2006 and 2010 but these bills never saw the light.

In the past, several allegations have been made against judges for misconduct. In lines of the pandemic too, several questions were raised against the judiciary for hearing certain cases at great urgency, while keeping other similar matters pending without any hearing. Such practices make the public lose their faith in the justice delivery system. 

Through the 2018 verdict of Swapnil Tripathi v Supreme Court of India, the Court laid down elaborate guidelines and modalities for live-streaming court proceedings. The Court held that the Supreme Court Rules, 2013 will have to be suitably amended to provide for the regulatory framework for holistic live-streaming as an extension of the principle of open courts and for dissemination of information in the widest possible sense, thereby imparting transparency and accountability to the judicial process. 

This declaration made by the Supreme Court two years ago has now come to light. Several High courts like Madras and Gujarat have already started live-streaming certain matters. The SC accordingly, on 4th November, set up a panel to formulate rules for regulating the live streaming. However, several judges including CJI Bobde have claimed the process is susceptible to abuses and the Court until now had been reluctant in allowing the same. 

Criminal Contempt: A Legal Point of View

Miss. Vidhi Dugad, Mumbai University.

Contempt of Court is a phrase that should be understood by interpreting the word- ‘contempt’. Contempt in simple words means disgrace or disrespect. The Judiciary holds an esteemed position in law, especially in the Indian Legal System. The Indian Legal System is based upon the principle of Rule of Law which means that the law is supreme. In such a state the judiciary is given even more importance because it is considered to be the guardian of laws[i].

The laws for contempt of court exist not to protect the judges or courts but to protect the justice system itself[ii]. The powers to punish for contempt are provided to the courts by the Constitution of India under Article 129[iii] which states that “The Supreme Court of India 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.” Furthermore, Article 215[iv] states “High Courts to be courts of record. Every High 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.” Therefore, the High Courts and the Supreme Court, both have the powers to punish for contempt.

As stated in The Contempt of Courts Act, 1971 S.2(a), there are two major types of contempt:

  1. Civil Contempt[v]

Civil Contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Therefore, violation of any directions ordered by the court may amount to civil contempt.

  1. Criminal Contempt[vi]

This type of contempt is a more serious one and it is more difficult to determine. There are three things that may constitute as criminal contempt- scandalizing or lowering the authority of a court, prejudicing a judicial proceeding, and obstructing or interfering with administration of justice[vii]. Doing any act or publishing anything which has the above mentioned results amounts to criminal contempt.

Even lawyers are not excused in cases of contempt. For better understanding, we can look at the case of Jaswant Singh v. Virender Singh[viii]. In this case, there was a transfer petition filed which set up a serious allegation on the learned judge and his discharge of judicial functions. The Honourable Supreme Court in this case held that the claims and language used was not only derogatory but it also interfered with the conduction of a fair trial. Therefore, the lawyer was held in contempt. A similar verdict has been upheld several other times in very recent cases where judges have taken suo motu action against advocates who make derogatory allegations against judges[ix].

Media is regarded as the medium that voices public opinion and at the same time brings knowledge of the routine world to the people. However, sometimes the phenomenon of media trial arises. This term- ‘media trial’ is the idea that before the court passes a judgement, the accused has already been tried by the media in a public sphere and has been declared guilty. The Supreme Court of India in certain cases has referred to ‘trial by press’ as a ‘miscarriage of justice’[x]. In the case of M.P. Lohia v. State of W.B[xi], the Supreme Court went as far as warning the editor and writers that their articles would affect the case. Media Trials not only hinder the administration of justice, they also violate the principle of ‘innocent until proven guilty’[xii].

Time and again several cases of criminal contempt have been initiated and most of them have been ruled against the accused. In the Arundhati Roy Case[xiii], based on a statement worded- “By entertaining a petition based on an FIR that even a local police station does not see fit to act upon, the Supreme Court is doing its own reputation and credibility considerable harm” in Ms. Arundhati’s Affidavit, contempt of court proceedings were initiated against her. She responded to this by further criticising the court at several instances. Ms. Arundhati Roy was in the end punished for contempt. This case raised a lot of question on the contempt of court laws and their relevance today.

The most recent case of criminal contempt that has moved the minds of masses is the Prashant Bhushan Case[xiv]. Mr. Prashant Bhushan- a Senior Advocate practicing in the Supreme Court of India made two tweets on twitter. One was regarding the Chief Justice of India riding an expensive motorcycle without mask while the Supreme Court was closed due to the pandemic and a second one regarding how the democracy that is India was being destroyed with reference to the Supreme Court and past four CJIs. The Supreme Court took suo motu cognizance of this case. In the defence of Mr. Prashant Bhushan, it was argued that the first tweet was just a statement to show distress over the fact that the Supreme Court of India was not functioning which violates the citizen’s rights, where meanwhile the Chief Justice of India was enjoying without wearing a mask in times of Covid-19. It was said that if this was contempt the fundamental rights under Art. 19(1)(a)of the Constitution of India[xv] would be violated.

For the second tweet the defence argued that the tweet was a ‘bona fide opinion about the situation in the country’ by Mr. Bhushan. It was further argued that there was no basis for contempt of court accusation because all statements made were at the judge as a private individual. The defence further argued that the decision of the court be given after considering the situations and circumstances surrounding the facts and not only on the basis of the statements made. However, the final decision of this case came with a guilty verdict with a fine of Rs. 1/-.

Exceptions:

There are certain exceptions to contempt of court. Most of them are mentioned in The Contempt of Courts Act, 1971:

  1. S. 3: Innocent publication and distribution of matter not contempt[xvi]. This means that if a person publishes something regarding a case or proceeding or interferes with the process of justice in an ongoing proceeding but has no reasonable grounds to believe that the proceeding is ongoing, they cannot be held in contempt for it,
  2. S. 4: Fair and accurate report of judicial proceeding not contempt[xvii]. and
  3. S. 5: Fair criticism of judicial acts not contempt[xviii]. Which means that comments or criticism on case, judgements, orders, or judicial decisions that have already been decided will not amount to contempt.

Conclusion:

Contempt of court has become a controversial topic overtime; especially criminal contempt. We have observed this in the Arundhati Roy[xix] case where there was a lot of opposition towards the guilty judgement. Furthermore, the contempt of court law is becoming increasingly redundant in other nation states. In England itself, from where India has inherited this law, courts are refusing to peruse contempt cases[xx]. The effect that Contempt of Court has on Freedom of Speech and Expression should not be ignored either. Contempt of Court is a reasonable restriction that can be imposed on the fundamental right guaranteed under Art. 19(1)(a). Therefore, it is important to analyse contempt from the perspective of a restriction especially after the Prashant Bhushan case[xxi] where Mr. Bhushan seeks a right to appeal[xxii]


[i]Spadika Jayaraj, Judicial Accountability and Contempt of Court: Comparing India with U.K., the U.S.A. and Singapore, 1.1 CALQ (2013) 18.

[ii]Attorney General v. Times Newspapers, [1973] 3 W.L.R. 298.

[iii] INDIA CONST. art. 129.

[iv] INDIA CONST. art. 215.

[v] Contempt of Courts Act, 1971.

[vi] supra

[vii] Id at 5

[viii] Jaswant Singh v. Virender Singh, 1995 Supp (1) SCC 384.

[ix] Re: Ajay Kumar Pandey, (1996) 6 SCC 510.

[x] State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386.

[xi]  M.P. Lohia v. State of W.B, (2005) 2 SCC 686.

[xii] Anukul Chandra Pradhan v. Union of India, (1996) 6 SCC 354.

[xiii] Re Arundhati Roy, (2002) 3 SCC 343: AIR 2002 SC 1375.

[xiv] Re Prashant Bhushan, 2020 SCC OnLine SC 646.

[xv] INDIA CONST. art. 215, cl. 1(a).

[xvi] Id at 5

[xvii] Id at 5

[xviii] Id at 5

[xix] Id at 13

[xx] A.P. Shah, The chilling effect of criminal contempt, The Hindu (JULY 27, 2020 00:45 IST), https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-contempt/article32198138.ece.

[xxi] Id at 14.

[xxii] Legal Correspondent, Prashant Bhushan case | Plea to uphold right of appeal in contempt case, The Hindu (SEPTEMBER 13, 2020 08:28 IST), https://www.thehindu.com/news/national/prashant-bhushan-case-plea-to-uphold-right-of-appeal-in-contempt-case/article32589978.ece.

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench. 

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