#pddesaimemorial #harishsalve #criticismofjudiciary

Senior Advocate Shri Harish Salve QC delivered the 16th Justice P D Desai Memorial Lecture on the topic "Criticism of Judiciary, Contempt Jurisdiction and its Use in the Age of Social Media"

The 16th Memorial Lecture was organized by the Chairman and Members of the Justice P D Desai Memorial Lecture Committee. It was attended by Sitting and Former judges of the Honorable Supreme Court of India and the Honorable High Court of Gujarat. The presence of Senior Advocates, Young Lawyers and Law Faculties and Students was also noticed.

Some abstracts from the lecture

"Criticism of Judiciary and Contempt Jurisdiction has occupied the center stage is in our country and in present times they both have been joined at a hip. While exchanging the thoughts, it has given us an opportunity to sit back and see where we are, what shape society has taken, what role different institutions are playing and how different these institutions are from the day of the birth and how are we adapting those old principles to new circumstances and how do we work to create towards creating a rubric of constitutional principles, a body of law which serves democracy and governance best to achieve the virtues which founding fathers set out by writing constitution of India.

There is no democracy which is free of problems but India has achieved a great success in evolving the democracy and another thing which is a matter of great success is the Recognition of speech in all its dimensions. We have recognized free speech not just as a privilege of the few who are protected, who have access to means and who can protect themselves. We have nurtured right to free speech in its correct spirit and not only that we have also extended the right to free speech to right to know and used that as a linchpin of the developing principle of transparency. Through this route we have injected transparency in the Indian constitution.

Today the government has been driven to accept that democracy is not negotiable. In this evolution of democracy while you have free speech which has moved ahead we have the courts which shall evolve. To evolve from dispute resolution tribunals to institutions of governance and it’s a matter of pride that our courts have evolved into such a manner where an average citizen considers it as an institution of governance where he can go to vindicate his basic rights and not just to resolve his issue, which is a very positive development.

Courts have evolved into institution which are willing to test larger constitutional underpinnings of important decisions that affect the country and its people.

Dust and dean of Indian Democracy serves huge purpose in keeping institutions in jack. The law of contempt has evolved back in the day by court where the court and king were one and the kings did not take too kind to the people to exceed its jurisdiction and readily threw people in jail. Contempt at that time was the assertion of an authority by the king and the king’s judges over the citizens.

Judges have over the years evolved a very robust attitude where they do not let kind of criticism to affect their work. Indian Judges have shown similar resilience and Justice Sabyasachi Mukherje decision in Shiv Shekhar Case is an eloquent testimony to how robust our supreme court is where he said “We treated with contempt and not in contempt”. Hence the system has developed the strength to treat such types of criticism. Scandalising the court therefore is something which has almost fall into disuse and something we need to remind over selves is protecting judges and institution are no longer considered the philosophical underpinning the law of contempt. What happens where it becomes necessarily for the judges to deal firmly to protect public faith in the institution.

We today have accepted, the court and judges have become institution of governance and as an institution of governance it must be open to public scrutiny and public criticism. Criticism of judges and judicial overreach and manner of functioning is not scandalizing of court and the language of the criticism should always be treated with a high smile.

We owe to our judges for simple reason that we being lawyers are part of the same institution and it is true that court cannot reply to ill-informed criticism but it is equally true and important to remember that we are part of the institution must deal with ill-informed criticism. Ill-informed criticism should not be quelled using the power of contempt but it must be killed with by the bar and we owe it to correct and debate if it goes wrong. I hope that the next generation will help in evolving the court and will get pass such problems and when after 20 years somebody else is giving similar speech will say scandalizing the court is a principle which now is ash heap of history."