CIIAPTFJM

INTRODUCTION
 CHAPTER -1

INTRODUCTION

In pursuit of achieving the aims and objectives, the Preambles of the

Constitution declare India to be a Sovereign, Socialist, Secular, Democratic

Republic. The term ‘Sovereign’ emphasizes that India is no more dependent

upon any outside authority. It means that both internally and externally India

is sovereign. Its membership of the Commonwealth of Nations and that of the

United Nations Organization do not restrict her sovereignty. Critics jsay that

India’s membership of the Commonwealth of Nations is not compatible with

her sovereign status. But, it is to be noted that India’s membership of the

i

Commonwealth of Nations does not in any way restrict her sovereignty.

India’s membership of the Commonwealth is! a self-imposed limitation.

According to Mr. Ramaswamy:

“It is a courtesy arrangement devoid of any Constitutional

significance”. Explaining the true position of India in the
Commonwealth on 1,0th May, 1949, the then Prime Minister
Jawar Lai Nehru said “we took a pledge long ago to achieve
Puma Swaraj. We have achieved it. Does a nation loose its
independence by an alliance with another country? Alliance
normally means mutual commitments. The free associations of
Sovereign Commonwealth Nations do not involve such
commitments. It is well, known that it is open to any membef
nation to go out of the' Commonwealth if it chooses.”1
It must be remembered that the Commonwealth is not a super-state in

any sense of the term. We have agreed to consider the king as symbolic head

1 Dr. J.N. Pandey : The Positional Law of India 46th Ed. p. 23.
 2

of this free association. But the king has no functions attached to that in the

Commonwealth. So far the Constitution of India is concerned, the king has no

place and we shall owe no allegiance to him.”

The holy term ‘Socialist’ has been inserted in the Preamble by the 42nd

Constitutional Amendment Act, 1976. This concept was already implicit in the

Constitution. The amendment merely spells out clearly this concept in the

preamble. The term ‘Socialism’ is used in democratic as well as socialistic

Constitutions. It has no definite meaning. In general, however, the word means

some form of ownership of the means of production and distribution by the

State. The degree of control will determine whether it is a democratic State or

Socialistic State. India has, however, chosen its own brand of socialism e.g.,
mixed economy.2

The term ‘Secularims’ means .a State which has no religion of its own

as recognized religion of State. It treats all regions equally. In a Secular State

the State regulates the relation between man and man. It is not concerned with

the relation of man with God. The term ‘Democratic’ indicates that the

Constitution has established'a form of Government which gets its authority

from the will of the people. The rulers are elected by the people and are

responsible to them. Justice, Liberty, Equality and Fraternity which are

essential characteristics of a democracy are declared in the Preamble of the

Constitution as the very objectives of the Constitution. The Preamble to the

Constitution declares that the Constitution of India is adopted and enacted by

the people of India and they are the ultimate master of the Republic. Thus, the

real power is in hands of the people of India, both in the Union and in the

States. The term ‘Republic’ signifies that there shall be an elected head of the

2 Constituent Assembly Debates, Vol. VIII. Pp. 494-95.

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State who will be the chief executive head. The President of India, unlike the

British King, is not a hereditary monarch but an elected person chosen for a
limited period. It is an essential ingredient of a Republic.3
: i
1.1 Fundamental Rights Incorporated in Constitution

The incorporation of a formal declaration of Fundamental Rights in

Part III of the Constitution is deemed to be a distinguishing feature of a

democratic State. These rights are prohibitions against the State. The State

cannot make a law which takes away or abridges any of the rights of the

citizens guaranteed in the Part III of the Constitution. If it passes such i a law, it

may be declared unConstitdtional by the courts. But mere declaration of

certain fundamental rights will be of no use if there is no machinery for their

enforcement. Our Constitution has, therefore, conferred on the Supreme Court

the power to grant most effective remedies in the nature of writs Habeas

Corpus, Mandamus, Prohibition, Quo Qarranto arid Certiorari whenever these

rights are violated. It must, however, be clearly understood that fundamental

rights are not absolute rights. They are subject to certain restrictions. Thus, our

Constitution tries to strike a balance between the individual liberty 'and the

social interest. The idea of iricorporating a Bill of'Rights has been taken from

the Constitution of the United States. But the guarantee of individual fights in

our Constitution has been very carefully balanced with the need for security of

the State itself.4 . 1 ■1

1.2 An Independent Judiciary a Peculiar Feature

Mere enumeration of a number of fundamental rights in a Constitution

without any provision for their proper safeguards will not serve any useful

Ibid. .
Constituent Assembly Debate, Vol. VI, pp. 594-95.
 4

purpose. Indeed, the very existence of a right depends upon the remedy for its

enforcement. Unless there is;remedy, there is no right, goes a famous maxim.

For this purpose, an independent and impartial judiciary with a power of

judicial review has been established under the Constitution of India. It is the

custodian of the rights of citizens. Besides, in a federal Constitution it plays

another significant role of determining the limits of power of the Centre and

States.

1.3 Freedom of Speech and Expression as a Fundamental Right

Freedom of speech and expression is the most important Fundamental

Right. Political philosophers and historians have taught us that intellectual

advances made by our civilization would have been impossible without

freedom of speech and expression. At any rate, political democracy is based on

the assumption that such freedom must be zealously guarded.5 Champions of

human freedom' of thought and expression throughout ages, have realized that

intellectual paralysis creeps over a society which denies, however, in a subtle

form, due freedom of thought and expression to its members.

Article 19(l)(a) of the Constitutional guarantees to the citizens of India

the fundamental right to freedom of speech and expression. However, this

right is not absolute and Article 19(2) contemplates that reasonable restrictions

can be imposed by State. Contempt of court is one the reasonable restrictions

enumerated in Article 19(2). Freedom of speech and expression means to

express one’s own convictions and opinions freely by words of mouth,

writing, printing, pictures or! any other mode. It also includes right to'remain

silent and not speak.

Chief Just Beg in S. Mulgaokar ; In Re (1978) 3 SCC 339 p. 342.

i
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Unlike the first amendment of the U.S. Constitution, Article 19(l)(a)

does not expressly guarantee freedom of press. But after' judicial

interpretations position is same as in the U.S.A. The National Commission to

review the working of the Constitution (2002) in its reports has recommended

for the inclusion of the freedom press in the right to freedom of speech and

expression. Also, Lord Mansfield as early as 1784 had defined the “Liberty of

the Press” as consisting in “printing without previous licence, subject to the

consequences of law”.6

In Romesh Thappar v. State of Madras7, the Supreme Court

observed “.... There can be, no doubt, that freedom of speech

and expression includes freedom of propagation of ideas, and

that freedom is ensured by the freedom of circulation. Liberty of

circulation is as essential to that freedom as the liberty of

publication. Indeed, without circulation, the publication would

be of little value.” : :

There can be little doubt that the imposition of prescription on a journal is a

restriction on the liberty of the press which is an essential part of the right to

freedom of speech and expression declared by Article 19 (l)(a).8

The freedom of expression is probably the most universally accepted

Human Right gains credibility from Article 10 of the European Convention on

Human Rights which states that “every one has the right to freedom of

expression”. This includes the right to “receive and impart information without

interference by public authority and regardless of frontiers”.

King v. Dean of the State Asaph (1783) 3 TR 428.

1950 SCR 594. I
Brij Bhushan v. Delhi 1950 SCR 605.
 6

However, in order for States to prevent expression which may be

harmful or infringe others’ rights, Article 19(2) allow specific limitations on

the right to freedom of expression which are “prescribed by law” and

necessary in a democratic society. These includes such restrictions or penalties

t

as may be needed to safeguard national security, protect public health and

morals, prevent crime or maintain the authority and independence of the

judiciary. Extreme examples of harmful expression may include such things as

violence or child pornography and incitement to racial violence.

In several cases, the court has balanced the right to freedom of

expression with administration of justice and weighed in favour of the former.

In Sunday Times v. U.K.9, the court stressed the media’s role in reporting

matters which the public has a right to know, saying : “..... Article 19

guarantees not only the freedom of the press to inform the public, but also the

right of the public to be properly informed. The question of where

responsibility for a tragedy of this kind actually lies is also a matter of public

interest.... did not cease to be a matter of public interest merely because they

formed the background to pending litigation.”10

The European court in another contempt of court case*11 endorsed the

freedom not to speak i.e. the fundamental right of journalist not to disclose the

identity of confidential sources of information and held that protection of

journalist sources is one of the basic conditions for press freedom because

without such protection, sources may be deterred from assisting the press in

informing the public on matters of public interest. The European court held

that freedom of press also includes free circulation of the printed material

9 (1979) 2 E.H.R.R. 245.

10 Id at 277-282.
11 Godwin v. U.K. 22 E.H.R.R. 123 (1996).
 7

without any restraints. The jEuropean court in Spycatcher cases12 held that

restraints whether temporary br permanent should be upheld only when a State

can demonstrate concerns so; serious that they threaten the life of the nations

and even then only to the extent strictly required. Freedom of speech and

expression includes the freedom to criticize the judge, the court and its

functioning. But when a person exercises this right to criticize and make a fair

comment, he does not do so freely because of the fear of committing contempt

of court.

The contempt of court, in a broader sense, means lowering of the

dignity of the court in the eye of public. The dignity of the court may be

lowered by various means and it may take various forms. Broadly speaking,

contempt is of two types - civil and criminal. When a person willfully

disobeys the orders of a court, he commits civil contempt of court.13 When a

person by means of publication (whether by words, spoken or written or by

signs, or by visible representation, or otherwise)'firstly scandalize or lowers

i

the authority of any court, secondly, prejudices1 or interferes, with' the due

course of any judicial proceedings and thirdly, interferes or obstructs the

administration of justice he commits criminal contempt of court.14

: Oswald has distinguished civil and criminal contempt as where the

contempt involves a private 'injury only it is civil in its nature but where the

contempt involves a public injury it is criminal in its nature. Another1 line of

distinction has been that in civil contempt the principal object is to secure the

enforcement of The order, whose compliance has not been done whereas in

Observer and Guardian v. U.K., 14 E.H.R.R. 153 (1992); Sunday Times v. U.K. (No. 20)
14.
S. 2(b) of Contempt of Courts Act, 1971.
S. 2(c) of Contempt of Courts Act, 1971..
 8

criminal contempt the dignity of the court has been lowered and requires

punishment from the public point of view.

Every court of record has inherent power to punish for its contempt and

the lower court. The Supreme Court and the High Court both are courts of

record by virtue of Articles 129 and 215 of the Constitution respectively and

punish for the contempt independently of the Contempt of Courts Act, 1971.

The contempt proceedings are sui generisand are quasi-criminal in nature.

The proceedings do not partake the character of traditional list. The contempt

proceedings neither follow the Cr. P.C. nor the C.P.C. The proceedings are

summary in nature. Another peculiar feature of the proceedings is that

presence of the mens rea to 'commit contempt is not essential. It is sufficient

that the dignity of court has been lowered. However, the absence of the mens

rea mitigates the amount of punishment to be awarded.

Defamation of judge as an individual is not one and the same thing as

defemation of the judge as a court. In the later case, the defamation takes the

character of contempt of court. In Queen v. Gray15, it was rightly observed that

if vilification is of the judge ;as individual, then the judge is left to his private

remedies and the court has no power to commit for contempt. Only if the

vilification is of the judge as a judge, it is contempt of the court.

Thus, the primary objective of the power to punish for contempt is not
to afford protection to the; judge as an individual but to prevent! undue
influence with the administration of justice. The law of contempt is not made
for the protectipn of judges, who may be sensitive to winds of the public
opinion said Justice Doughlas16: The power of Contempt of Courts is meant to
maintain independence of Judiciary.

15 (1900) 2QB 36. i

16 Craig v. Harney 331 US 367 (1947).

1
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Judicial Independence and Judicial Accountability are essential

attributes of a democratic society. Judiciary to maintain its independence, uses
the power to punish for contempt whenever anybody tries to scandalize or
lowers its authority, or interferes with due course of judicial proceedings or
interferes, with administration ofjustice.
Freedom of speech and expression as discussed earlier includes the

right to criticize the court, judiciary as an institution and its functioning, and

when this right is exercised, it directly comes into conflict with power of the

court to punish for contempt. This exactly is the dilemma. Both the

Constitutional rights are important. Both involve a public interest, free press

on one hand and administration justice on the other hand.

The conflict has been the subject matter of consideration before various

bodies for a long time now. ;

The legislature and the executive have accepted such interim legislation

made by the judiciary by hot enacting laws till now to replace judicial

legislation. The Doctrine of implied power is well recognized. The power to

enforce the Fundamental Rights includes the power to employ all the means
that are necessary to the exercise of the power.17

Over the years, in oiie notable decision after another, the following
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rights have been declared by'the Supreme Court to be encompassed within the

four comers of Article 21 : The Right to go abroad, the right to privacy; the

Right against solitary confinement; the right to legal aid; the right to speedy

trial; the right against custodial violence; the right to medical assistance in

emergency; the fight to shelter; the right of workers to safe working conditions

and to medical aid; the right to social justice and economic empowerment; the

17
Newspaper, the Tribune, 19th Dec. 2007.
\
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right to pollution free water! and air; the right to a reasonable residence; the

right of citizens to food, clothing, descent environment and every protection of

the cultural heritage; the right of every child to full development; the right of

residents of hilly areas to acpess to roads; the right to education; the right to

live in a clean city with noise pollution at minimum levels - in other words,

the right of every inhabitant to live his or her life with dignity.

A large number of Directive Principles of state policy set out in Part-IV

of our Constitution, which are declared by the Constitution to be not

enforceable in any court (But nonetheless fundamental to the governance of

the country) have now been made enforceable by courts through the wide and

liberal interpretation of Article 21. - a feat of judicial “engineering”

unmatched in any other part of the world. 1 1

But you. cannot have'engineering without tools. The tools haVe been

provided by the Founding 'Fathers in Article 32 and Article 226 - they

empower the Supreme Court and the High Courts to issue “Writs, Order and

Directions” not only for the: enforcement of the fundamental rights but also

“for any other purpose”. The width of these Articles was emphasized in a

Constitutional bench decision of the court rendered in 1955. The Court said :

“We can make any order, of issue any writ in the nature of Certiorari in all

appropriate cases and in appropriate manner, so long as we keep to the broad

and fundamental principles that regulate the exercise of jurisdiction in the

matter of granting such writs in English Law.”

In English Law, Chief Justice Coke proclaimed way back in 1615, that

the power of courts was not only to correct errors and misdemeanours but all

manner of mis-govemance — “so that no wrong or injury, neither private nor

public, can be done, but that it shall be (here) reformed or punished by due
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course of law”. These are1, the powers inherent in our higher judiciary.

Sometimes some men and women who sit on the bench are not conscious of

limits of such power, or do not have the sensitivity to exercise judicial restraint

when called for, only means:that those (few) men (and women) are not equal

to the supremely difficult itask of judging entrusted to them under the

Constitution: it only indicates that perhaps it is time we adopt a better method

of selection of judges for over higher judiciary.

As to who can approach courts for relief under Articles 32 and 226-

obviously, persons who are “prejudicially affected” by acts or omissions of

any governmental or other authority - sometimes even by “strangers”.

Constitutional historian H.M Seervai has given an example of public spirited

individuals being granted locus to move the courts with beneficial results to

public administration - in Piloo Mody v. State of Maharashtra (1975) the

petitioner, a public spirited citizen, impugned the action of the State

Government in granting leases of valuable plots of land at Backbay

Reclamation, Bombay, at a gross undervalue.

The result of the litigation was to help secure to the state exchequer a

crore of rupees more : a very substantial sum in those days. It was this and

later cases that gave impetus to the concept of PIT (Public Interest Litigation),
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since then frequently used (but now-a-days frequently misused). It is the

misuse that require correction, not by abolishing PILs, but laying down norms
and framing strict guideline^ for insuring that such PILs are not improperly

motivated. ' ' '

PIL should be decided judiciously, we do not need judges who 'behave

like emperors. What we do'need is those “whom the lust of office does not

kill;/ whom the spoils of office cannot buy;/ who possess opinions and a
 12

will;/who have honour; and will not lie;/ who can stand before a demagogue/

and damn his treacherous flatteries without winking/tall men (and women),
18
sun-crowned, who live above the fog/in public duty and in private thinking.”

Before taking up the legal position regarding power of courts to punish for

contempt of court, it is better to find out the legal position in U.K. and U.S.A.,

where law in this regard has been well settled by Judicial decisions.

1.4 Position in U.K.

As back as 1893, the court “in the matter of special reference from
Bahamas Island”19, upheld the right of a person to criticize and put an end to

theory of integrated personality of the judge. Upholding the right of criticizing

Lord Atkin said “Path of Criticism is public way’ and ‘the wrong headed are

permitted to err therein: and ‘justice is not a cloistered virtue she must be

allowed to suffer the scrutiny and respectful, even though outspoken

comments of ordinary man.20 i '

The right to criticize has been upheld time and again. Lord Denning in
R. v. Commr. of Police Ex. P. Blacburn21 held that “....... we do not fear

criticism, nor do we resent it” and “it is the right of every man... to make fair

comment even outspoken comment on matters of public interest...” Lord

Salmon said “It is the inalidnable right of everyone to comment fairly upon

any matter of public importance”. Lord Edmerd observed “The right1 to fair

criticism is part of the birth-right of all subject of Her Majesty”. 1

House of Lords in A.G. v. Times Newspapers22 for the first time dealt
the English law of contempt in depth. This case is significant for two reasons -

18 Newspaper, The Tribune, 17th Dec. 2007.

19 (1893) AC 138 (PC). • i
20 Ambard v. Att. Gen. of Trinidad and Tobago (1936) AC 322 (PC).
21 (1968) 2QB 150.
22 (1973) 1 QB 710.
 13

firstly it recognizes for the first time that when court is confronted with two
public interest - freedom of speech on one hand and fair administration of
justice on the other hand then the court has to do balancing of interest.
Secondly, it laid down the; doctrine of ‘a real and substantial danger of
prejudice’ as basis for punishing a publication as contempt pending trial.
The House of Lord while deciding the above said case relied heavily on

the observation made by Chief Justice Jorden in Bread Manufacturers Case23

wherein held that if in the courses of the ventilation of a question of public

concern matter is published which may prejudice a party in the conduct of law

suit, it does not follow that a contempt has been committed.

1.5 Position in the U.S.A.

i

The right to criticize has come into conflict with contempt of court on
numerous occasions. Justice Black in Bridges v. California24 upheld arid
applied the clear and present danger doctrine formlated by the court in! Schenck
v. U.S25. This rule implies,that to constitute contempt the publication or
statement must be of such a nature that it has tremendous potential to interface
with the administration of justice. Mere ‘reasonable tendency’ or ‘inherent
tendency’ would not suffice.
The balancing of public interest in free press and fair was done with a
tilt towards freedom of speech in James Wood Case26 where the court upheld
Bridge’s case. :
1.6 Position in India I

The Supreme Court ift India to assert its independence has freely used

the power to punish for contempt as and when it is criticized. The court has

used this power without any comprehensive ideology.

23 (1937) 37 SR (NSW) 242,249-250. *

24 3.14 US 252 (1941).
25 249 US 47 at 52.
26 270 US 375 (1962). |
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The Supreme Court during last 50 years have tried to do the balancing
act in a number of cases to name of few; Reddy’s Case21, Sharma’s Case2*,

Namboodripad Case , Bradakanta Mishra Case , Mulgaonkar’s Case and

Shiv Shankar Case32. But surprisingly, all the cases discussed above had varied
i

results with no coherence. In most of the cases the tilt has been towards the

contempt of court making the right to criticize a damp squib.

Should not the judiciaiy be accountable? Should we accept that the

judiciary is above law and modify the rule of law, which says “Be you ever so

high, the law is above you” to “Be you ever so high, the law is above you and

the judiciary is above law”. 1

It has rightly been said that independence does not mean that judges be

treated as separate class answerable only to God. For Justice Frankfurter said

“Judges... Just because thei holders of judicial office are identified with

interest of justice, they may forget their common human frailneiss and

fallibilities.... Therefore, judges must be kept mindful of their limitations and

their ultimate responsibility by a vigorous stream of criticism expressed with

candour howerve, blunt.33 '

In our democratic set Up judicial accountability is ensured through :

(i) Impeachment.

(ii) Appeal and Review 1

(iii) Open trial and 1

(iv) Judgements

1952 SCR 425.

1953 SCR 1169. 1
(1970) 2 SCC 325.
(1974) 1 SCC 374. I
(1978) 3 SCC 339.
(1988) 3 SCC 167.
33
Bridge v. California, 314 US, 252 (1941).
 15

Impeachment as a tool is .cumbersome and uncertain. Out of all the tools

of judicial accountability, criticism of judgement is considered to be the most

viable one. !

The recent case of Arundhati Roy34 has once again highlighted the issue

that right to criticize is a right only a letter and not: in spirit. The conviction of

Arundhati Roy disturbed and caused great concern amongst the leading legal

personalities and more so the Media v. Venketesan writes “.... the right to

freedom of speech and expression guaranteed by Article 19(1 )(a) of the

Constitution, seemed to have suffered a serious blow.35

How could it have been wrong for a delivered Ms. Roy to protest being
dragged into a now admitted case.36 Are the contents of the affidavit of Ms
Roy more offending, if at all they are, than the speech of Shiv Shankar then
the law minister who had made strong comments on the class bias, of the
judges. . ( '
It is felt perhaps, the court has overreacted on the Arundhati’s Case and
i ■ i i
strictly speaking, if not by passed, has failed to appreciate the standards and
measures set by this court in the afore-mentioned cases.
In the last decade and half the Supreme Court has shown a touchiness
which is not becoming of the highest court in land, a selectivity in the
application of law. Witness; the exoneration of P. Shiv Shankar: -. a total
i

indifference to the limits of its power and with it, a cavalier disregard for the
citizens rights when charged with contempt.37 . '
The Supreme Court latest exercise of its contempt power is dangerous

for three reasons argues A.G. Noorani38 namely :

JT (2000) SC 508.
Of Criticism and Contempt^ Frontline, March 29 at p. 27.
Ibid.
Noorani, A.G., A disturbing Judgement in Frontline, 29th March, 2002, p. 33-34..

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- It flouts the fundamental principle of jurisprudence that no person shall

be put in peril on an ambiguity.

- The offence of Contempt of Court by “scandalizing the court” is

notoriously vague. It; is regarded as obsolete in Britain, the country of

its origin.

- It makes the offended judge, a judge in his own case.

Compare her words to what Alan Dershowitz, a professor of law at Harward

used about the US Supreme Court in the election case in which majority of the

court dishonestly upheld George W. Bush’ election. His remarks on Chief

Justice Renquist were abusive. The majority of the U.S. Supreme Court
survived intact.39 1

Compare also, what Arundhati Roy said in her affidavit with what

Bernard Levin wrote in ‘The Times’ (London) on February 7, 1991. He

accused judges of arrogance and hyprocrisy and of impairing public

confidence in the judiciary by their own conduct.40

The National Commission to Review the Working of the

Constitution (2002) hereinafter referred to as NCRWC, keeping in mind the
state of judicial accountability has recommended setting up a National Judicial
Commission consisting of the Chief Justice of India and two senior most
judges qf the Supreme Court to examine complaints of deviant behaviour of all
kinds against the judges as an improvement over the current lack of any
procedure to ensure judicial accountability.
Truth is a good defence in cases of defamation41 if spoken in good faith

and for public purpose. But in contempt proceeding it was not recognized as

a valid jusitification. However, Supreme Court in Reddy’s proviso said that in

39
Ibid.
40
Ibid.
41
Sectiion 499 of IPC.
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matters of contempt court, it shall be left to the court to permit a defence of

justification by truth on satisfaction as to the bonafides of the plea and it being

in public interest.

Recently, the issue of whether truth can be taken as a justification if

spoken in good faith and public interest camp up for consideration before the
Hon’ble Supreme Court in Dr. Subramanian Swamy v. Rama42. The court

realizing the importance of the matter has referred it to a Constitution Bench.

Parliament has now intervened and radically changed the law by Act 6 of 2006
i

by amending Section 13 of the Contempt of Courts Act, 1971 which states

“Notwithstanding anything contained in any law for the time being in force

..... (b) the court may permit in any proceedings for contempt of court,

justification by truth as a valid defence if it is satisfied that it is in public

interest and the request for invoking the said defence is bonafide.”

On the same footing the basic design of the Constitution is premised on

the principle of separation of powers introducing the system of checks and

balances. Conceptually, there is not difficulty in demarcating the respective

functional areas of the three principal organs of the State - the legislature, the

executive and the judiciary. Functionally, however, in the course of

dispensation of justice, at times, situations do arise that require correction of

an executive order of removing some legislature lacuna. In such , situations

sometimes the court may find itself involved in a policy making decision that

partake the character of political decision making. Of course, such j situations

require to be handled with utinost care and caution, lest the delicate balance of

powers envisaged by the Constitution should be disturbed. :

42
(2000) 10 SCC 331.
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A three-judge Bench bf the Supreme Court in the Parkash Singh case

(2006), completely disillusioned with the crime control situation: in the

country, issued guidelines that crystallized in the form of a seven-point

strategy for securing “an efficient and better criminal justice delivery system”

and to be realized within a time-bound framework.' In the court’s view this was

necessary ‘for doing complete justice’ in the matter before it. Such a measure

continues to draw criticism on grounds of unwarranted intrusion into the

political cases. However, the Supreme Court’s response is that under Article

142 they have occupied the ‘space’ exclusively reserved for the legislature and

the executive, but only for' such time till they come and occupy what is

legitimately theirs for fulfilling the purposes of the Constitution.

Where has the Mathuf Katju Bench faulted? Aren’t the judges entitled

to have their own judgement? Aren’t they free to dissent from the holdings of

other Benches? They are indeed. However, while doing so in the instaht case,

they have committed, unwillingly perhaps, an act of judicial impropriety,

which is the canon to unify judges and the judiciary. ‘

Bearing in mind that they were strongly opposed to the views expressed

earlier by the Benches, both equal and greater and greater in strength, they

could have appended the note of their disapproval and requested the Chief

Justice to constitute a special Constitution bench to take care of their

legitimate concerns. This is the course, for instance, which was followed by

the five-judge Constitution Bench that wanted certain misgivings abbut the

basic structural doctrine of the Constitution clarified by the larger Constitution

bench. Accordingly, a nine-judge bench of the Supreme Court in I.R. Coelho

case (2007) authoritatively laid down the ambit of the basic structure doctrine
through a unanimous judgembnt. !
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For rendering justice, mere denouncing the “overreach” approach is an

awfully inadequate response! for suggesting a solution to the problem posed.

It is one thing to say that the, court cannot arrogate to itself the power of, say,

“creation of posts”, but quite another to answer the question, “who will undo

the wrong in the case of an executive inaction or arbitrariness and legislative

lapses or dysfunction?” This, indeed, is the central issue of the whole debate

echoed editorially by The Tribune (December 15).

Of course, the burden is to be discharged by the judiciary still

remaining within the confines of the Constitution. This is what the three

judge Bench led by the Chief Justice has done; they examined the PIL relating

to the Brindaban widow’s plight de novo and admitted it on its own merit

without being bothered by the observations of the Mathur - Katju, Bench at

this stage with which they were not bound as such.43

There is conflict between Fundamental Right of freedom of speech and

expression and power of contempt of court. The legal conflict in this regard

has been settled in U.S.A, and U.K. but the position not clear in India. The

fundamental question is whether power of contempt of court is absolute?

Whether the power of contempt of court overrides fundamental right of speech

and expression? In democracy the citizens’ rights should have precedence.

The judicial decisions of the Supreme Court and various High Courts show

conflicting trends. The other important question relates to judicial

accountability. The judiciary1 should also be made accountable for its acts and

actions. Thus, there is need to analyse the whole aspects keeping in, view the

present position'into consideration. The whole aspects have been discussed in

detail in this study. The legal position of other countries has also been
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Newspaper, The Tribune, 21 Dec. 2007.

 20

discussed with relevant case law. The study has been divided in seven

chapters. ■

Chapter-I : This chapter prelates to Introduction. The Independence of

Judiciary being a peculiar; feature under Indian Constitution has been

explained. The importance of Fundamental Right of Freedom and speech has

been highlighted. The legal position of U.K. and U.S.A. has also been

explained.

Chapter-II : Concept of contempt of court and its development has been

mentioned in this chapter. The rationale and object of Power of Contempt has

been explained. Development of Law of contempt law in England and Indian

has been discussed in detail. The legislative development of contempt law in

India hais also been exclaimed.

Chapter-131: This chapter relates to kinds of contempt. The meaning of civil

and criminal contempts has been explained. The difference between two kinds

of contempt has also been given. The Acts and conduct which amounts to civil

and criminal contempts have been discussed in detail with relevant case law.

Chapter IV : This chapter relates to Constitutional provisions regarding

contempt of court. The Supreme and High Courts, being courts of record have

power to punish for contempt under Article 129 and Article 215 of the

Constitution respectively. The relevant case law has also been discussed.

Chapter-V : This chapter relates to conflict between freedom of speech and

power of contempt Of court. The freedom of speech and expression is an

important freedom. An individual has a right to criticize the decision of courts

also. But the freedom is not absolute. If the freedom interferes with the

administration of justice, the court can exercise power to punish for contempt.

The judicial decisions have been discussed in detail. •

i ! 1
 21

Chapter-VI : This chapter prelates to independence of Judiciary. How the

power of contempt of court is used to maintain Independence of judiciary has

been explained. The need of Judicial Accountability has been given in detail

Chapter VII : This chapter relates to conclusion and suggestions. The

conclusion has been drawn :on the basis of study. The relevant suggestions

have also been given.

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