Restating the law

The restatement of Indian law on PIL, legislative privilege and contempt of court contributes greatly to the evolution of Indian jurisprudence.

The Supreme Court Project Committee on Restatement of Indian Law made an important contribution to the evolution of Indian jurisprudence when it released the first three volumes on the subject in October last year. Restatement of law literally means restating the law that already exists. As a concept, it refers to the academic exercise that involves compiling of judge-made laws in areas where statutes are either non-existent or insufficient. Such a compilation is useful when there are seemingly conflicting interpretations of law and judgments, and authoritative pronouncements are virtually absent.

What has been restated in these books is not binding on authorities deciding similar issues, but they have persuasive value. The facts and circumstances of each case must determine its resolution, with the principles laid down in the restatement guiding the judge. As Chairman of the Project Committee, Justice R.V. Raveendran, former Judge of the Supreme Court, hopes these restatements achieve, at least partially, what Benjamin Cardozo (former United States Supreme Court Judge and an authority on restatement of law in the U.S.) defined as restatement: Something less than a Code and something more than a Treatise, invested with the unique authority not to command, but to persuade.

Justice Raveendran explains: The object of a restatement is to state the current law of the land by considering the relevant constitutional/statutory provisions and judicial pronouncements, to identify and remove uncertainties and ambiguities surrounding the legal principles, and to clarify and simplify the law for its better adaptation to the needs of the society.

Professor Madhav Menon, former Vice Chancellor of the National Law School, Bangalore and Kolkata, and member of the Supreme Court Project Committee on Restatement, put it aptly in an article in The Hindu: The Supreme Court's Restatement of Indian Law Project is nothing short of a rule of law revolution in the making, possibly heralding the success of democracy and constitutional governance.

The first three restatements have been taken up as pilot projects, using different modules. It is a collective effort of a team of contributors, consultants and the editorial committee.

Public Interest Litigation

The first volume is on public interest litigation (PIL). It clearly lays down which petitions filed under this popular label are most likely to be admitted by the courts. The concerns raised in the petition must be in consonance with social justice jurisprudence and not merely be litigation to further private interests in the guise of a public concern. Where the cause of action is genuinely in the general public interest, the court will relax the requirement of bona fide and appoint an amicus curiae to deal with the matter and keep it out of the power of the original applicant.

PIL is not a medium for settling disputes between individual parties or securing benefits to a particular section of the people for furtherance of their personal rights. The court shall disapprove of any attempt that projects a private concern as a PIL when no issue of law or of public concern is traceable.

A key principle laid down is that a public interest litigant approaches the court with clean objectives and clean hands, and that has to be demonstrated at the threshold. As the court very colourfully put it in one of the cases: Busybodies, meddlesome interlopers, wayfarers or officious interveners having absolutely no real public interest except private profit either for themselves or as a proxy for others or for any other extraneous motivation or for glare of publicity cannot secure the aid of the court.

Representation of the interests of deprived sections who can ill afford litigation to resolve their pressing concerns and get relief from exploitation would be one clear category of bona fides. Issues of basic freedoms and their infringements and those of relevance to broader concerns of the rule of law, democracy and liberty would also be of a bona fide character.

The court may refuse to entertain a PIL if it finds that the issue raised is not within the judicial ambit or capacity; where the matter is eminently one for the appropriate evaluation and action by the executive and this may not be susceptible to adjudication or judicially manageable standards. The court intervenes only when the executive is remiss in discharging its obligations under the Constitution or the law, but its redressability does not extend to compelling the government to introduce an ameliorative legislation or to bring a law into force.

Though courts have the power to examine the legality of all actions of the executive under a statute or otherwise on the touchstone of infringement of fundamental rights, matters of policy are generally immune to such challenges. But refusal to interfere in matters of policy issues is not axiomatic. The principle will always be the direct impact on citizens' rights though larger social concerns that the policy seeks to address will have a persuasive role.

Despite the Supreme Court laying down these guidelines or criteria on various occasions, it is not unusual to come across criticism that the court had wrongfully entertained a PIL or that a genuine PIL petition had been dismissed inadvertently at the threshold. The reason perhaps for such criticism is that the guidelines implicitly permit the courts to exercise discretion to interpret them, and this apparently makes the admission or dismissal of a PIL petition a lottery.

Legislative Privilege

The second volume, on legislative privilege in India, begins by stating the obvious: The object and purpose of conferring privileges on the legislature is to safeguard its freedom, authority and dignity. An illustration of a legislative privilege is its right to exercise almost absolute control over its internal proceedings subject only to judicial review on the grounds of substantive illegality or unconstitutionality. In the case of a member of a legislature or Parliament, this privilege gets translated into his or her freedom of speech in Parliament. The only restrictions on freedom of speech in Parliament are the limitations contained in constitutional provisions and the rules and standing orders of Parliament.

Article 105(2) of the Constitution confers broad immunity from proceedings in any court in respect of speeches or votes given by members in Parliament; this immunity extends even to non-members who publish reports, proceedings, and so on, under due authority of the House.

Parliament has not defined by law the privileges of either House in terms of the first part of Clause (3) of Article 105. As a result, the effect of the second part of Article 105(3), even after its amendment in 1979, is that the privileges of each House, its members and committees remain the same as those enjoyed by the British House of Commons at the commencement of the Constitution of India.

This is not a satisfactory outcome of the progress of the law, as a privilege derived from those of the British House of Commons may be inconsistent with the scheme of the Indian Constitution, the fundamental rights in Part III of the Constitution, or any other provision of the Constitution. Yet, the courts rely on an interpretative approach that harmonises the provisions relating to privileges with other provisions of the Constitution. Thus, certain privileges of the British House of Commons that obviously conflict with the scheme of the Constitution or its provisions cannot be claimed by legislatures in India.

In the context of the occasional struggles for supremacy between Parliament/legislature and the judiciary, the following excerpt from the book is significant:

The legislatures in India claim to be the sole and exclusive judges of their privileges. This claim is based both on their status as coordinate organs of the state under the broad separation of powers among the executive, the legislature and the judiciary... and their entitlement... to all the privileges enjoyed by the British House of Commons on January 26, 1950. However, this claim is not supported by the constitutional scheme in India or by the situation in Britain in 1950 (page 11).

To support this assertion, the book points out that neither Article 32 nor 226 which confer on the Supreme Court and the High Courts, respectively, the power and, therefore, the jurisdiction, to enforce the fundamental rights in all cases of violation of these rights contains any bar in cases involving the exercise of legislative privilege.

The book further points out that for all practical purposes, the British Parliament no longer treats itself as the sole and exclusive judge in all matters pertaining to legislative privilege. Accordingly, it is the constitutional courts alone that are the final arbiters in all matters relating to the existence and extent of legislative privileges. However, as the legislatures are a coordinate organ of the state, the courts will show deference to the legislature in the exercise of its powers and will exercise restraint in judicial review of the exercise of legislative privilege.

In the chapter on breach of privilege and contempt of the House, the book cites the relevant principle that the House, through the relevant committee, will not use its penal powers to fetter or discourage free expression of opinion. This rule of restraint, however, will not inhibit the House from taking action against its own members for ethical violations or misconduct because such misconduct by members lowers the dignity of the House. These principles are relevant when legislatures show growing intolerance of expression of dissent by members of civil society, or when the House lets a delinquent member go scot-free even though his or her action has lowered its dignity.

Contempt of Court

The third book, on contempt of court, acknowledges that it is not easy to codify the principles of the law of contempt because it is, by its very nature, highly contextual and fact-specific. Justice A.K. Ganguly, former Supreme Court Judge and the chairman of the editorial committee for contempt of court, observed that the power of contempt must be exercised judiciously, in a manner that balanced the need for preserving and upholding the rule of law and the integrity of the judicial system while avoiding untoward incursions into that precious right of freedom of speech and expression.

Civil contempt is the wilful disobedience of any judgment or other process of a court or wilful breach of any undertaking given to a court. Criminal contempt involves direct interference with the administration of justice, where the contemptuous act impedes or subverts the procedures of the court. False and untruthful representations made to the court constitute contempt. Bringing to bear upon any party to a proceeding any pressure or inducement to make him or her adopt a false position or to get him or her to retreat from his or her avowed stance would be considered contempt of court. Constant contradictions in the stand by witnesses, coupled with unexplained assets and bank deposits, will lead directly to the conclusion that the witness has been purchased, thereby rendering him or her guilty of criminal contempt. It is also criminal contempt to attempt to approach a judicial officer to influence his or her decision when a matter is pending before him or her.

The book notes that it is criminal contempt to voice opinion on cases pending in court as that would be seen to influence the outcome of the matter and to prejudice the parties therein. This principle is qualified by stating that it does not mean that there is an automatic gagging order in every case. Fair reporting of court proceedings does not amount to contempt.

Liberty of free expression cannot be permitted to be treated as a licence to make reckless imputations against the impartiality of the judges deciding the case. However, justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men.

Most cases of criminal contempt involve the question of invoking truth as a defence. In 2006, the Contempt of Courts Act was amended to provide for truth as a defence, insofar as the alleged act is both bona fide and in the public interest.

The book adds that even after the amendment, the provision (Section 13 of the Act) only confers a discretion on the court to permit the defence of truth to be raised. In deciding such matters, the court may also exercise discretion in determining whether evidence is required to be led by the alleged contemnor in support of the alleged contumacious statement.

This only shows that despite the amendment, the law on contempt has hardly changed with regard to allowing truth as a defence. The fear persists on the part of the courts that admission of evidence would encourage litigants to abuse the judge and then attempt to justify the same on appeal through the leading of evidence.