Summary

This article discusses the sensitive topic of how a litigant can meaningfully respond to cases of perceived bias, or worse, in a judicial decision.  While recognising that an unrestricted licence to comment on judicial decisions could give rise to unrestrained and scurrilous criticism of judges, the article argues that it would not be proper to close all avenues for the ventilation of legitimate grievances.

With this in view, the article proposes a few changes in the law relating to the contempt of court which, if made, could allow litigants to ventilate their grievances in a controlled environment without scandalising the judiciary.

This article, with very minor differences, was published in the Criminal Law Journal of All India Reporter in 1997. 

Subsequent to the publication of this article, the laws relating to the contempt of courts and the prevention of corruption have seen a few amendments, including changes in some of the areas on which suggestions were made in the article. For instance, I understand that truth is now expressly allowed to be taken as a defence in contempt of court cases in certain circumstances.

As the basic thrust of the article remains unaffected, these changes in the law have not been incorporated in the article reproduced here.

Author’s Note

Given the sensitivity of the topic addressed in this article, copies of the article were sent to a number of lawyers and judges for their review and comments, and any comments received were appropriately incorporated in the article.

I must make a special mention of Mr Nani Palkhivala’s response. He graciously read the article and assuaged my concern that I might have drifted into intemperate language. He shared his view that the article was “well thought out and well-worded”. A copy of Mr Palkhivala’s letter is attached.

THE LITIGANTS’ CHARTER
by Nitin Karve

Our judiciary is extremely sensitive to any accusations of bias or of corruption in its ranks. For instance, The Indian Express was recently pulled up for publishing a letter stating that judges in the lower courts, and in some cases even in the High Courts, could be bought quite easily [The Times of India (‘ToI’), June 26, 1996]. Whether or not to allow public criticism of bias in a judge is a vexed question, admitting of no easy answers. This is so even in an otherwise free democracy. The question becomes even more difficult when the would-be critic is an aggrieved litigant.

The prevailing judicial approach to criticism is contained in Lord Atkin’s statement in a Privy Council advice (Ambard v. Attorney-General for Trinidad and Tobago [1936] AC 322, 335) that “no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong-headed are permitted to err therein; provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, …, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.” This statement seems to be very liberal, till one notes the crucial proviso, viz., that no improper motives may be attributed. In India, this proviso is often broadened, and even allegations of bias are treated as amounting to contempt of court, whether or not there is any allegation of impropriety.

Three arguments are normally advanced in support of restraining criticism of judges for bias or impropriety: –

1. It is said that unrestrained and scurrilous criticism of judges can undermine the faith which the public reposes in the judiciary, and hence can interfere with the dispensing of justice.
2. A judge is expected to be dispassionate. If there is wide-spread and ill-informed criticism of judges, it would be only human for sensitive judges to try and avoid such criticism, particularly where some sections of the public are more vocal and unrestrained than others. This might result in populist judgments.
3. By convention, judges do not involve themselves in public controversies. A judge does not normally respond to public criticism. It would not be dignified for a judge to get into unseemly wrangles with vocal rabble-rousers.

There is substance in the arguments in favour of restraint; but suppressing criticism can be counter-productive. If it is the general impression of the public that some judges, at least, can be bought, any suppression of criticism can make the judiciary, as an institution, seem intolerant or oppressive. Secondly, at a time when the judiciary has undertaken new high-profile initiatives for cleaning up public life, it might be accused of protecting its own wrong-doers. Thirdly, such restraint is undoubtedly a curb on the freedom of speech, and since it curbs justified as well as unjustified criticism, it can cause grave injustice. A wronged litigant has to suffer in silence even where a judge provides adequate grounds for an arguable grievance of bias. Where the bias is believed to arise on account of corruption, the enforced silence becomes monstrously oppressive to the victim.

This restraint on free speech would have been barely tolerable if all judges in India and abroad had always been models of rectitude and of appropriately judicious judicial behaviour. There is enough evidence to suggest otherwise.

As Mr. H. M. Seervai noted, “Biographies of eminent lawyers and judges contain comments on judicial misbehaviour of judges or shocking bias of judges in the discharge of their judicial duties; and history has branded a number of judges as infamous. But no one has thought of hauling up those authors for contempt. That some judges will be biased at times, that some judges may be corrupt or may misbehave does not shake the confidence of the public in respect of judges generally. The provision in our Constitution for the removal of a judge for proved misbehaviour shows that the framers were aware that in a few cases human infirmity will lead judges to be corrupt or to misbehave.” (H. M. Seervai, Constitutional Law of India, 4th Edition, Vol. 1, paragraph 10.83 on pp. 742-3).

The following are instances of judicial behaviour that was at least inappropriate, if not always improper: –

1. A major judicial scandal of British India was the Nandakumar case in the eighteenth century, where Raja Nandakumar, a person who had made charges of corruption against Warren Hastings, was hanged on a charge of forgery. There were strong allegations of bias against the British Chief Justice Impey, who was a friend of Warren Hastings. Among other things, the forgery complaint followed too closely upon Nandakumar’s allegations against Hastings; it was doubtful whether the English law of forgery applied in India; the judges acted as prosecutors and severely cross-examined defence witnesses; Nandakumar’s application for leave to appeal was rejected; and the execution of the death sentence was not stayed until the disposal of the mercy petition to the King. Incidentally, Hastings unilaterally, without the approval of the authorities in London, appointed Impey to an additional post, thereby increasing his salary from 8,500 pounds to 14,500 pounds per year.
2. In 1922, Mr. Justice McCardie’s handling of Sir Michael O’Dwyer’s libel case against Sir Chettur Sankaran Nair came in for severe criticism. In his summing up to the jury, he stated that General Dyer had acted rightly at Jallianwala Bagh and that he had been wrongly punished. His Lordship’s interruptions often showed a bias in favour of Sir Michael and his summing up was criticised in the Indian Legislative Assembly as well as in the British Parliament. Fortunately for Sir Sankaran, Prof. Harold Laski was a member of the jury, and his influence was such that Sir Michael was awarded only modest damages. (Alfred Draper, The Amritsar Massacre, 1985, pp. 247 to 263).
3. In the late 1920’s, Mr. Pandit, an Indian Presidency Magistrate, convicted a British Police Sergeant named Carter in a prosecution for assault filed by Mr. Yusuf Meherally. Sergeant Carter came in revision before two Indian judges, viz., Mr. Justice Mirza and Mr. Justice Patkar, of the Bombay High Court. At this stage Sir Amberson Marten, the British Chief Justice of the High Court, took a most extraordinary step. He withdrew the case from this bench, constituted a special bench consisting of himself and Mr. Justice Kemp, and acquitted Sergeant Carter. The sole object behind the procedure was evidently to bring about the acquittal. (M. C. Chagla, Roses in December, 10th edition, published by Bharatiya Vidya Bhavan, pp. 111 to 113).
4. Another instance of inappropriate behaviour cited by Mr. Chagla relates to Sir Leonard Stone, who was Mr. Chagla’s immediate predecessor as Chief Justice. Worried about the growing arrears of criminal work in the Bombay High Court, Sir Leonard devised a method of discouraging criminal appeals. Whenever an appeal came up for admission, he would admit it and then issue a notice of enhancement of sentence. The result was that most appellants were terrified of coming to the High Court. Though the judge was not influenced by any personal impropriety, this approach created a systemic bias against the appellants. (M. C. Chagla, cit., p. 135).
5. It was said about Lord Hewart, Lord Chief Justice of England from 1922 to 1941, that he “lacked only the one quality which should distinguish a judge: that of being judicial . . . The opening of a case had only to last for five minutes before one could feel – and sometimes actually see – which side he had taken; thereafter the other side had no chance.” (C. P. Harvey, The Advocate’s Devil, 1958, p. 32).
6. Sir Francis Bacon, Lord Chancellor of England (1618-21), had to give up the office in 1621, after being charged with bribery.

The above examples show that a judge need not always be above bias. These examples deal mostly with cases of bias rather than of outright corruption, for the obvious reason that open bias tends to be better documented than corruption. It is not quite de rigueur for the amount of the bribe, if any, to be mentioned in the body of the judgment. However, cases where corruption or impropriety is suspected normally include some, if not all, of the following elements: –

1. The judge’s eagerness to try the case is out of the ordinary.
2. The winning lawyer has a string of successes before the judge, or his success rate before the judge is significantly higher than his success rate before other judges, providing grounds for suspecting a link between the lawyer and the judge.
3. The judge uses abusive or intemperate language.
4. There are patent but plausible errors in outlining the facts and/or the law applicable.
5. The final decision is slightly unorthodox or unconvincing, or amounts to ‘making law’ instead of ‘stating the law’.

Unfortunately, none of the above characteristics can be conclusive evidence of impropriety, and the judgements of even the most honest judges might occasionally show one or more of these characteristics for the most innocent of reasons. Hence, these characteristics cannot, per se, amount to evidence about the existence or the extent of judicial corruption, if any.

Nevertheless, it is an undeniable fact that the public has grown very cynical about public officials over the last few years. The judiciary is not wholly exempted from this cynicism. People believe that most politicians and bureaucrats are corrupt. Unless judges were people from a different planet, one would expect at least some judges to be afflicted by the same disease. A poll across major cities in India showed that 98% of the respondents thought that politicians were corrupt, and 97%, 88% and 66% thought that the police, bureaucrats and judges, respectively, were corrupt. In other words, only one-third of the respondents thought that all judges were honest. Even journalists scored higher. Furthermore, fully 10% of the respondents rated judges among the three most corrupt categories of persons in public life, out of the ten categories about which they were questioned. (ToI, January 14, 1995, p. 1).

The public’s concern is shared by some judges. In a recent interview, Mr. Justice M. L. Pendse, a respected former judge of the Bombay High Court, expressed his belief that 80% of judges are honest. Even while supporting the policy of transferring High Court judges as a punishment for impropriety, he observed that transferring judges was “tantamount to distributing judicial garbage throughout the country”. (ToI, November 1, 1996, p. 5).

Whatever the reasons in favour of the restraint on criticism of judges, it would not be proper to close all avenues for the ventilation of grievances. As pointed out earlier, this could be oppressive and undemocratic. The basis of the contempt of court jurisdiction is the need to keep the streams of justice “clear and pure”. It is difficult to see how the streams can be kept clear and pure by gagging a citizen who happens to notice that the Gangotri itself is occasionally polluted.

The question arises as to the form in which legitimate grievances might be aired. Ideally, criticism should be permitted in any form if it is made in good faith, is well-grounded and does not, of itself, lower the judiciary in the eyes of the public. In particular, the rules governing private criticism should be more liberal than those governing public criticism –when judges are criticised privately, there can be no question of scandalising the judiciary or of lowering it in the eyes of the public.

In essence, the law of contempt of court, to the extent that it deals with scandalising the judiciary, is a specialised branch of the law of defamation. Some of the reasons why judges need to be treated differently from ordinary citizens have been noted. It is submitted that while these reasons justify a higher level of protection from defamation for judges, they do not justify absolute protection. The law offers ten defences to a charge of defamation, none of which are available against a judge. These defences could be carefully adapted to the law of contempt of court, particularly with reference to private criticism of the judiciary.

Some of the defences which might be made available in cases of contempt of court are discussed below: –

1. Truth should be expressly allowed as a defence in proceedings for contempt of court, as it is available in a case of defamation (Exception 1 to section 499 of The Indian Penal Code, 1860, (IPC)). After all, where a judge accepts bribes, it is his behaviour, and not that of his critic, which brings disrepute to the judiciary. As of now, the allowability of this defence is open to doubt, with seemingly contradictory dicta from different judges. Obviously, the burden of proving the truth should be on the accuser and what needs to be proved is the impropriety itself. Proving primary facts from which a reasonable inference of impropriety might be drawn would not be enough. For instance, where it is alleged that a judge fell for the charms of a lady advocate and gave judgment in her favour, it should not be sufficient to prove that the lady was in fact charming and that the judge did give judgment in her favour. What would need to be proved is the fact that the charm caused the judgment. On the other hand, where bias or corruption would be the only reasonable inference from proved facts, this should be enough to discharge the burden of proof.
2. If there is any manifestation of bias in the behaviour of a judge, the aggrieved party should be permitted to criticise such behaviour without imputing bias, if the criticism is based on provable facts. For instance, if a judge shows an extraordinary interest in bringing a case to trial, the litigant should be permitted to criticise such behaviour by discussing the yard-stick by which cases are given a priority (out of the massive backlog of cases) for being taken up for hearing; or by highlighting the fact that other similar, or seemingly more deserving, cases remain pending for a much longer time. This is a restricted version of the defence relating to the public conduct of a public servant under Exception 2 to section 499.
3. Exception 8 to section 499 allows protection to an accusation preferred in good faith to an authorised person. Litigants should be expressly permitted to make accusations to the Chief Justice of a High Court or to the Chief Justice of India. There should be a Judicial Ombudsman to look into the behaviour of judges. The objectives of the Ombudsman should be: to deter injudicious conduct; to provide a means by which judges can be criticised in appropriate cases; to vindicate by an independent report a judge who has been unfairly criticised; and, most important of all, to enable aggrieved litigants or others to air their complaints. The powers of the Ombudsman should be limited to considering complaints of injudicious conduct. The Ombudsman should not be an additional court of appeal and, as such, should be prohibited from investigating whether the judge reached the correct decision on a point of law, except where a glaring error raises doubts about the judge’s judicial competence. (This suggestion is from Mr. David Pannick’s book Judges – pp. 96 to 104 of the paperback edition contain a detailed discussion).
4. Exception 10 to section 499 provides, “It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good”. This might be adapted, in restricted form, to permit any person who believes that a judge was corrupt in a given case, to privately caution another person about his belief, if such caution is intended for the good of the person to whom it is conveyed. Consider the case of a person who acts as a non-executive director on the Board of a public company, without being involved in its day-to-day affairs. If the company were to bribe a judge without the director’s knowledge, it would be in his interests to have his attention drawn to the facts. After all, he might be liable for civil damages if negligence could be proved against him.
5. Under an amendment to the Penal Code being considered by the Government, a director would also become personally liable for the crime. Yet, under the present law of contempt of court, it would be a crime for anyone else to inform him that he might be so liable. A person who might be liable to be punished for a crime of which he is innocent, is thus barred from even knowing that the crime had been committed. Giving an aggrieved litigant the right to inform those responsible for the affairs of the victor about the facts would be in the interests of all parties. The possibility of such exposure would itself act as a useful internal check within large organisations against wrong-doing of this nature.

To complement the above relaxations, the following changes should be made in the law, to deter judicial wrong-doing: –

1. Cases of contempt of court for ‘scandalising the judiciary’ should be tried before a jury of practising advocates. This would ensure that informed contemporary opinion is taken into account. Advocates practising in a court are likely to be better informed about the behaviour of a judge than his brother judges.
2. If any judgment is found to have been corruptly induced, any lawyer who procured it or defended it in any higher court should automatically be suspect in all cases handled by him subsequent to that judgment. Every such subsequent case should be open for retrial at the option of the losing party. This would ensure that judicial corruption does not give rise to a class of known judicial fixers, comparable to the administrative fixers found in Delhi and the state capitals.
3. There is a need to increase the punishment for judicial corruption. At present a corrupt judge faces no higher punishment than a corrupt octroi clerk. The maximum punishment for both is imprisonment for five years (The Prevention of Corruption Act, 1988, (PCA), s. 7). As against this, the maximum period of imprisonment for cheating (IPC, s. 420) or for criminal breach of trust by employees (IPC, s. 408) is seven years and that for criminal breach of trust by public servants, including judges, is ten years (IPC, s. 409). Judicial corruption certainly deserves to be treated more seriously than such crimes. It should be treated on a par with murder or treason.
4. Today the law punishes the bribe-giver as merely an abettor of a crime (PCA, s. 12). In other words, bribing a judge is not a crime in itself. Admittedly, the punishment is the same as for the person who accepts the bribe; but the term ‘abettor’ implies a much lower level of moral guilt. The law needs to be stated in positive form, and bribing a judge, or abetting anyone in the bribing of a judge, should be made a crime in express terms.
5. In addition to imprisonment, there should be a deterrent monetary penalty levied on anyone convicted of bribing a judge. The penalty should be set very high, say up to a thousand times the value of the subject-matter of the dispute. The justification for a huge penalty is two-fold. In the first place, given the very low probability of a case of judicial corruption being discovered and punished, the value of the rewards of wrong-doing would far exceed the perceived value of the associated risks. The penalty would therefore have to be very high for the risk-to-reward ratio to be meaningful. Secondly, the subject-matter of a dispute might not always be of equal importance to the opposing parties. One party might be vastly richer and more powerful than the other. The probability of corruption occurring is higher in cases where the opposing parties are unequal in strength than where the parties are equally strong. In such cases, the penalty has to be high enough to bite the more powerful party.
6. At present, there is no provision for compensating a victim of judicial corruption for his suffering. He should be entitled to compensation in the form of ordinary and exemplary damages for financial and other losses and distress suffered. Furthermore, a part of the penalty recovered from the guilty parties should be paid to him.
7. The law should clearly define the culpability of those associated with the affairs of the person for whose benefit a judge is bribed. Where a judge is bribed, one would expect a number of persons to be actively or passively involved. There would be those who implement the decision; those who knowingly acquiesce in it; those who know enough to suspect the existence of bribery; and, above all, those who are conveniently ignorant of it. The last category is the most important. For instance, the day-to-day management of companies is normally left in the hands of managing directors. The other directors can safely plead ignorance of any wrong-doing undertaken on behalf of the company. Similarly, where a company is part of an Indian or multinational group, the group reaps the benefits of any wrong-doing, without being liable for it. The law should appropriately deal with all these categories of persons and define their respective levels of responsibility.

These suggestions, if implemented, would make the atmosphere less oppressive and suffocating for the aggrieved litigant by giving him acceptable channels for airing his legitimate grievances, without lowering the dignity of the judiciary. The existence of these channels would in itself help to control the extent of any possible wrong-doing. The proposed changes in the law relating to the penalties and punishments for judicial corruption would also go some way towards deterring judicial impropriety.

Admittedly, these proposals are not very radical and might prove of limited use to a victim who is not in a position to prove corruption, but they move away from the extremely unsatisfactory present position, without opening the doors to unrestricted criticism of judges in public.

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