In a democracy, contempt of court is a paradox, says Indian jurist

Respected judge says the law is more applicable to monarchies.

ISLAMABAD: A former judge of the Indian Supreme Court Markandey Katju, who recently criticised Pakistan’s apex court for Yousaf Raza Gilani’s conviction, says the idea of contempt of court in a democratic system is a paradox itself.

“In a democracy, people have the right to criticise judges. Why then should there be a Contempt of Court Act, which to some extent prevents people from criticising the judiciary?” Katju had told a convention held at the Indian Society of International Law years ago, when he was a serving judge. The same lecture was also published as an article in the Indian newspaper, The Hindu, titled ‘Contempt of Court: Need for a Second Look.’

Pakistan’s judiciary, evidently, does not share the same opinion as a number of high-profile contempt cases involving federal ministers, businessmen and other politicians are currently pending in the Supreme Court.

Katju maintains the basic principle of a democracy is that the people are supreme. Thus, all authorities – be they judges, legislators, ministers or bureaucrats – are servants of the people. “Surely, the master has a right to criticise his servants if they do not act or behave properly.”

In a democracy, the purpose of resting the power to prosecute for contempt is only to enable the court to function, he said. “The power is not to prevent the master (people) from criticising the servant if the latter does not function properly,” Katju continued with his metaphor.

Katju added that the best shield of armour for a judge is his integrity, impartiality and knowledge. “An upright judge will hardly ever need to use the contempt power. A judge should have the equanimity and inner strength to remain unperturbed in any situation.”

“Much of our contempt law is a hangover from British rule, under which India was not free and democratic. How can the law of those days be applicable today?”

However, he agrees the law is useful, and even necessary in certain situations. “If someone jumps up on the dais of the court, runs away with a court file, or threatens a party or witness,” the law will help protect the court’s sanctity, he said.

The view about having this contempt power was first introduced by Wilmot J in England in 1765 in a judgment that was, in fact, never delivered. Katju is of the opinion that in a monarchy the judge actually exercises the delegated functions of the king, and requires the dignity and majesty a king must have to command such obedience.

He feels the subcontinent should adopt a fresh and modern democratic approach similar to that of England and the United States where contempt jurisdiction is very sparingly exercised. “A judge is not bound to take action for contempt, even if contempt has, in fact, been committed.”

Published in The Express Tribune, 25^th, 2012.