The initiation of proceedings for criminal contempt of court against lawyer activist Prashant Bhushan has once again brought under focus the necessity for retaining the law of contempt as it stands today.
Background
Prashant Bhushan, senior lawyer and indefatigable campaigner for public had tweeted a photograph where he criticized Mr. Justice S.A. Bobde, the current Chief Justice of India (CJI), for riding an expensive motorcycle at a time when the Court is under lockdown.
A three Judge Bench, headed by Justice Arun Mishra, took suo motu notice of it and issued notice of contempt of Court to Mr. Bhushan “for undermining the dignity and authority of the Institution of Supreme Court in general, and the office of the Chief Justice of India in particular”.
The Bench coupled to another tweet of Mr. Bhushan in which he says that in the last 6 years, democracy has been destroyed in India, and that historians will mark the role of the Supreme Court in this, especially the last 4 CJIs.
It followed it up by listing yet another citation of contempt against Mr. Bhushan, this time in an 11 year old case where he allegedly said in 2009 that half of India’s last 16 Chief Justices were corrupt.
What is the Scenario of Contempt of Court in other countries?
In England, from where India has inherited the legacy of contempt law, the legal position has evolved, as adjudicatory role now having been handed over to judges; showing extreme deference to judges does not sit well with the idea of a democracy.
The U.K. Law Commission in a 2012 report recommended the abolition of the law of contempt.
“Contempt” has practically become obsolete in foreign democracies, with jurisdictions recognizing that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished.
Canada ties its test for contempt to real, substantial and immediate dangers to the administration, whereas American courts also no longer use the law of contempt in response to comments on judges or legal matters.
What are the Provisions in India regarding Contempt of Court?
The expression ‘contempt of court’ has not been defined by the Constitution.
As per the Contempt of Courts Act 1971, contempt refers to the offence of showing disrespect to the dignity or authority of a court. The act divides contempt into:
Civil contempt: It is a ‘willful disobedience to any judgment, decree, direction, order, writ or other processes of a Court or willful breach of an undertaking given to the court’.
Criminal contempt: It is ‘the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
Scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court.
Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding.
Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.’
According to the Indian Penal Code Section 12 of Contempt of Court Act, 1971, contempt of court can be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.
Bar Association vs. Union of India case, the Supreme Court dwelled into the constitutional powers vested in it under Article 129 read with Article 142(2) of the Constitution of India and the power of the High Court under Article 215 of the Constitution to punish for contempt.
Article 129: Grants Supreme Court the power to punish for contempt of itself.
Article 142(2): Enables the Supreme Court to investigate and punish any person for its contempt.
Article 215: Grants every High Court the power to punish for contempt of itself.
According to Supreme Court, no act of Parliament can take away the inherent jurisdiction of the Court of Record to punish for contempt and the Parliament’s power of legislation on the subject cannot, therefore, be so exercised as to stultify the status and dignity of the Supreme Court.
The Contempt of Court Act, 1971 was amended in 2006 to include the defense of truth under Section 13of the original legislation. Implying that the court must permit justification by truth as a valid defense if it is satisfied that it is in the public interest.
What are the broader perspectives of the concept in India?
The objective for contempt is stated to be to safeguard the interests of the public, if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
But the definition of criminal contempt in India is extremely wide, and can be easily invoked. Suo motu powers of the Court to initiate such proceedings only serve to complicate matters. And truth and good faith were not recognized as valid defenses until 2006, when the Contempt of Courts Act was amended.
A law for criminal contempt is completely asynchronous with our democratic system which recognizes freedom of speech and expression as a fundamental right.
An excessively loose use of the test of ‘loss of public confidence combined with a liberal exercise of suo motu powers, can be dangerous, for it can amount to the Court signaling that it will not suffer any kind of critical commentary about the institution at all, regardless of how evidently problematic its actions may be.
It is regrettable that judges believe that silencing criticism will harbor respect for the judiciary. On the contrary, surely, any efforts to artificially prevent free speech will only exacerbate the situation further.
What can be the Way Forward?
In an era in which social media are full of critics, commentators and observers who deem it necessary to air their views in many unrestrained and uninhibited ways, the higher judiciary should not really be expending its time and energy invoking its power to punish for contempt of itself.
The judiciary should identify priorities on constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act, the electoral bonds matter, or the issue of habeas corpus petitions from Jammu and Kashmir.
There is a need to revisit the need for a law on criminal contempt; also the test for contempt needs to be evaluated.
