Time to Relook India’s Contempt Law

This article, ‘Time to Relook India’s Contempt Law‘, focuses on the evolution of Contempt law in England, laws prevailing in India regarding Contempt, its flaws and in the end, the article focuses on the need to revisit the law.

PM Modi once remarked that debate, discussion, and dissent is an essential part of democracy[1]. The power of contempt is vested with the judiciary[2], and in the recent past, it is alleged that the judiciary has misused it to put a full stop to its critics[3].

There are reasonable restrictions for freedom of speech and expression[4] and the contempt of court[5], but in a democratic country governed by the rule of law, freedom of speech should be valued more than contempt of court. This is the prime reason world democracies like the UK and the USA have weakened the law of contempt of court.[6]

However, in India, where the courts are functioning virtually due to the corona crisis, it is very unfortunate that Supreme Court is focusing on contempt matters while several controversial matters such as Citizenship Amendment Act, 2019, Jammu and Kashmir Reorganization Act, 2019, etc. are still pending.

Evolution of Contempt law in the United Kingdom

The law on contempt of court is of British origin, where the king was once deemed as an incarnation of the god. The law was practiced by the king to protect his judicial pronouncements, to maintain the authority and dignity of the court. Later on, the power was transferred to the judges who were acting on behalf of the king.

The judges punished those who disobeyed them, interrupted, and paid disrespect towards the directives implemented by the court’s orders. Over time, the law gets drastically evolved. The English judicial system played a pivotal role in transforming the law on contempt.

In the Spycatcher case[7] of 1987, a paper named daily mirror published an upside-down image of lords and called them “you old fools” in the caption. The lords, in their reply, said:

“I cannot deny that I am old; it’s the truth. Whether I am a fool or not is a matter of perception of someone else there is no need to invoke the powers of contempt.”

Again in 2016, a similar headline came into the picture when the daily mail called three judges “Enemies of the People”[8] in a publication, but the reaction of the judiciary was the same, they neither paid heed to the statement nor issued the contempt proceeding.

The UK government had also taken positive measures to wipe out the archaic law. The UK Law Commission Report of 2012-2013[9] recommended the abolition of contempt of court on the ground that it was used to maintain the “glory of the court”.

The report also asserted that the law not only prevent people from thinking erroneous ideas about the judges but it also obstructs the people’s mind from thinking of the right ideas about the conduct of judges. Following this report, the UK parliament enacted an act titled: Crime and Court Act, 2013 whose Section 33 of the act deals with the “abolition of scandalizing the judiciary as a form of contempt of Court”[10].

Thus, the country which gave birth to the law of contempt is now taking initiatives to curb the contempt law to flourish the noble right of freedom of speech and expression.

Issues regarding India’s Contempt law

Justice V.R. Krishna Iyer once termed the law of contempt as,

“having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of the public good, may unwittingly trample upon civil liberties”.

In India, the contempt law is almost a century years old. It was the year 1926 the British parliament enacted the Contempt of Court Act, 1926. After the Independence, the act was replaced in 1951 and further amended in 1971.

The Contempt of Court Act, 1971 does not provide the precise definition of contempt of court. Rather the act categorizes the law into civil and criminal contempt[11]. Civil contempt is committed when someone willfully disobeys a court judgment, decree, direction, order, and writ or willfully breaches an undertaking given to the court.[12]

The criminal one is committed by publication (whether by words, spoken or written, or by signs, or by visible representation, or by otherwise) that:

1. “Scandalize” or “tend to scandalize” or “lower” or “tends to lower” the authority of any court.
2. Prejudice or interference with judicial proceedings.
3. Interferes or obstructs the administration of justice.[13]

The above-mentioned word ‘Scandalize‘ remains in controversy very often. It is alleged that Section 2(c) (i)[14] is vague, and has a wide scope,[15] as the word ‘scandalize’ or ‘tend to scandalize’ are very subjective. Their meaning varies depending upon circumstances and thus can be easily invoked.

Furthermore, it is also not clear whether the word ‘Scandalize’ should be scrutinized from the perception of the court, judge, or the public at large, which may finally result in arbitrary use of the law. Another argument against the contempt law is regarding the court’s criminalization.

To some extent, this threat of criminalizing puts a restriction on the liberal use of the right of freedom of speech and expression on matters regarding public Importance.

Contempt of Court viz a viz Freedom of Speech and Expression

The noble Right of Freedom of Speech and Expression is guaranteed under Article 19[16] but this Right is not absolute and is subject to Contempt of court.[17] To resolve the issue circulating contempt law and freedom of speech and expression, many cases have been filled over time in the Supreme Court has pronounced plenty of judgments.

Brahma Prakash Sharma And Others v. State Of Uttar Pradesh[18]

In this case, a resolution was passed by District Bar Association against two Judicial officers who, in the opinion of the Bar were incompetent and uninspiring. The court did not find the Bar liable for the Contempt. Also, it said that the aim of the contempt proceedings is not to offer protection to judges personally from imputation but to give protection to public confidence in the administration of justice.

Perspective Publications (P) v. State Of Maharashtra [19]

In this case, the court summarized the law of contempt by stating that contempt proceedings must be exercised with great care and caution, and any reasonable and fair criticism can be made of the act and conduct of judges acting in a judicial capacity because ” justice is not a cloistered virtue. She must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men”.

Gobind Ram v. State Of Maharashtra[20]

In this case, the court held that if the impugned publication is a defamatory attack on the judges, it will not amount to contempt of court. A person would be held guilty only when his act interferes with the due course of justice.

S Mulgaonkar v. Unknown[21]

In this case, an article related to judicial decisions, especially the Habeas Corpus case, was written by A G Noorani, which anguished the then CJI of India. The Bench that initiated the Contempt proceedings found A G Noorani not guilty.

Justice Iyer also remarked that,

the major rule in the branch of power is the wise economy of use by the Court of its jurisdiction.

He also noted that the Court must not be prompted to act as the result of easy irritability and must only act when justice is jeopardized by a gross attack on the judges, where the attack is meant to obstruct the judicial process.

PN Dua v. Shiv Shankar and others

[22]

In this case, the Supreme Court held that mere criticism of the court does not amount to Contempt of the Court. The Court also welcomed the Criticisms of Judicial administration to such an extent as it does not hamper the administration of Justice.

Despite, above mentioned Judicial pronouncements giving an edge to freedom of speech and expression over Contempt of court. It is quite seen people are reluctant to make a genuine comment as it is Judiciary itself that is Victim, who takes suo moto cognizance, and starts the trial with the presumption of guilt which ultimately makes citizens make a compromise with the usage of their right of speech and expression.

Thus, by looking into the matter, it is the need of the hour that the legislature would amend the vague provisions of contempt law so that the fundamental right of freedom of speech and expression would be protected.

Suggestions and Recommendations

1. As the word scandalised is ambiguous in its meaning, there is a need to amend Section 2(c)(i) to provide a precise definition of what amount to scandalise.
2. Bona-fide criticism and dissenting opinions would result in transparency and accountability and strengthen democratic institutions. The law of contempt would not be used to muffle the voice of dissent.
3. There is a need for judicial reform in the contempt proceedings because it is an affront to the principle of a fair trial, as in contempt cases, it is the judges themselves who are the victim, the persecutor, and the Judge.
4. The contempt proceedings also need to be relooked at because the proceeding starts with a presumption of guilt and not with the presumption of innocence.

Conclusion

The law on contempt has already become obsolete in the world democracies like Canada, Australia, and America. In Canada, the law would be invoked if there is a real and dangerous threat to the administration. Whereas, in America, the law is not in use in response to public comment either on judges or legal-related matters.

The law is still prevalent in India, and, unfortunately, some judges believe that judiciary respect could be harbour by halting the criticism. India, being the world’s largest democracy, should put forward its steps towards the dilution of contempt law.

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Reference

[1] Debate, Discussion And Dissent Are Essential Parts Of Democracy: PM Modi, BW Businessworld, Available Here

[2] Constitution of India, Articles 129, 142(2) and 215.

[3] Prashant Bhushan, Power of contempt of court misused to stifle free speech, Available Here

[4] Constitution of India, Article 19(2).

[5] The Contempt of Courts Act, 1971, Section 5

[6] Issues with contempt of court, Civilsdaily, Available Here

[7] The Spycatcher Cases, Available Here

[8] British newspapers react to judges’ Brexit ruling: ‘Enemies of the people’, The Guardian, Available Here

[9] Law Commission, Available Here

[10] Crime and Court Act, 2013, Section 33, No 22, Act of Parliament, 2013 (UK).

[11] The Contempt of Court, 1971, Section 2(a), No.70, Acts of the Parliament, 1971 (India).

[12] The Contempt of Court, 1971, Section 2(b), No.70, Acts of the Parliament, 1971 (India).

[13] The Contempt of Court, 1971, Section 2(c), No.70, Acts of the Parliament, 1971 (India).

[14] The Contempt of Court, 1971, Section 2(c) (i), No.70, Acts of the Parliament, 1971 (India).

[15] Contempt of court, The Tribune, Available Here

[16] Constitution of India, Article 19.

[17] Constitution of India, Article 19(2).

[18] Brahma Prakash Sharma And Others v. State Of Uttar Pradesh, 1954 SCR 1169.

[19] Perspective Publications (P) v. State Of Maharashtra, 1969 SCR (2) 779

[20] Gobind Ram v. State Of Maharashtra, 1972 SCR (3) 536.

[21] S Mulgaonkar v. Unknown, 1978 3 SCR 162

[22] PN Dua v. Shiv Shankar and others, 1988 SCR (3) 547

Originally Published on: Jul 26, 2021

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