India cannot do away with contempt of court since our society has not reached the level of maturity where people have restraint, Senior Advocate Harish Salve opined on Saturday.
Salve nonetheless said that judges need not be seen to be sitting in ivory towers.
“I don’t think we are ready to do away with the principles of scandalising the judiciary and contempt. I don’t think, in India, we have reached that stage of maturity in our society where people have the restraint …(or) have the maturity to understand what is a ludicrous allegation”, Salve remarked.
Salve remarked that in cases involving public interest, if criticism pertains to a “principle”, it cannot be considered as “scandalising the court”.
“Have we not heard of criticism of laws made by Parliament? Why can we not criticize the decision-making process of co-equal Constitutional institutions, the courts? Yes, we can. Can we not ask why certain cases were heard in a certain way?”
The Senior Advocate was speaking at the Justice PD Desai Memorial Lecture. The theme of the lecture was Criticism of Judiciary, Contempt Jurisdiction, and its use in the age of social media.
Salve underscored that Constitutional law is not static and criticism of court judges is essential to ensure that it does not remain so.
“How can this be achieved unless you are criticised? Criticism of judges, criticism of what is called judicial overreach…manner of functioning is not scandalising the court…”
While opining that the desirable approach in the face of criticism is to “grin and bear it“, Salve asserted that one area where judges need to be protected is when aspersions are made with respect to their independence.
“You can say that a judge or a judgment…have thrown to the winds the limitations on the power of the Judiciary. You may use strong language…that they have misread their jurisdiction…but to say that they granted bail because they are acting under the pressure of the government, that attacks the foundation of the institution…that scandalises public faith.
To say that an institution is acting at the behest of someone, to allege corruption, if established to be untrue, is clearly undermining public faith…”
Criticism by politicians or people who are capable of swaying public opinion raises different issues, he added, stating that an allegation by someone else might not be treated with as much seriousness.
In his virtual lecture, Salve also spoke at length on Constitutional courts being institutions of governance and thus being open to public scrutiny.
“Governance has to be under intense scrutiny otherwise democracy is in peril. The ultimate test of public faith is the kind of work that reaches you,” he said.
The issue of strengthening of our system and correct process of appointment of judges for greater public faith is a story for another day, Salve said.