All about Contempt

Arushi Shukla
“The power of Judiciary lies, not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith of the common man.” – John Marshall
Much has been said and written about the law of contempt recently. A lot of this material only goes on to show that a meaningful discussion is required for determining the use of such a law in current times. The controversial law has once again come under the spotlight because of the recent suo moto action of the SC against lawyer Prashant Bushan.
A large number of these pieces seem to ‘cherry pick’ information i.e., focussing on a few selective facts which fit their narrative, which does not really do justice to the cause.
The Contempt of Courts Act defines two kinds of contempt; civil and criminal. Here, our focus would be on the latter. Criminal contempt, as per the Act, is any act or publication which seeks to lower or scandalize the authority of the court, or obstructs the administration of justice.
The purpose of the law, in the words of the Supreme Court, is to ensure that the faith and confidence of the public in administration of justice is not eroded.
As it is with most laws, the contempt law was also inherited by us as part of the British legacy. The British themselves understood its perils, as in a 1914 judgment it was observed by the court that the power to punish for contempt was “arbitrary, unlimited and uncontrolled” and must be exercised with ‘the greatest caution.’
Efforts were made to consolidate the law on contempt first with the passing of the 1926 Act. The power of the courts was somewhat limited and controlled with the passing of the 1952 Act, which repealed and replaced the previous Act. Finally, the Act of 1971 was passed, which is currently in force. A recent attempt to further limit the power of the courts was made just two years back, when the Ministry of Law of Justice asked the Law Commission to consider an amendment to the 1971 Act, which would limit contempt cases only to civil contempt. The Law Commission In its 274th report concluded that such an amendment would be more detrimental than useful and recommended against it, citing adequate safeguards built into the Act itself and the ambiguity that would result, among others, as reasons for the same.
The Supreme Court of Pakistan declared unconstitutional an enactment on contempt in 2012, but this did not result in restricting the powers of the court, as their constitution confers on their court a wider discretion. Our own constitution provides in so many words that the Supreme court shall have ‘the power to punish for contempt of itself’. Similarly for the HCs as well.
The language of this provision is very wide and in the absence of a statute regulating the same, it would confer upon the judiciary unfettered discretion. Thus, doing away with provisions relating to criminal contempt will not solve the problem.
In England, ‘scandalizing the court’ was abolished as a ground for criminal contempt in 2013. The Law Commission of UK gave a very detailed report with sound arguments as to why the offence did not really serve its purpose and should be struck down. However, it must be noted that the UK Law Commission also emphasized the fact that the more serious cases of scandalizing the courts are already covered under other enactments, such as the Section 127(1) of the Communications Act 2003, which provides that a person is guilty of an offence if he or she sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character. The test is the objective tendency of the material in question: there is no requirement that any person should in fact be caused distress by it. The sending of messages has been held to include the posting of tweets on Twitter (Chambers V DPP [2012] EWHC 2157 (Admin)).
One could argue that in our country too, the judges would have recourse in defamation laws but would that be enough? It would certainly leave a lacuna in the law as we do not have the equivalent of the laws in England which seek to punish ‘the more serious cases.’
The US too has its own contempt law, which provides for punishment up to 14 years, however there are several limitations on the same. It must be noted that in both these jurisdictions, freedom of speech is subject to far lesser restrictions. To put things in perspective, UK and US are ranked 35th and 45th on the press freedom index respectively, whereas India ranked 142. An argument against contempt is that it defeats the very purpose that it seeks to serve, by suppressing criticism it places the judiciary in increased public scrutiny and feeds the belief that the institution must really have something to hide.
Indeed the judiciary has not tried to quell this suspicion at all, with the former CJI remarking, ‘Failed ambitions are reasons for criticism against me.’ The 2018 four SC judges’ press conference certainly comes to mind, where concerns were raised regarding the integrity of the institution.
Additionally, by persecuting for ‘scandalous’ content, the judiciary draws further attention to the allegations and amplifies the voice of the contemner. Moreover, it results in the trial of the judiciary itself, which exposes itself to bigger public scrutiny and suspicion. This has been more or less the case in the instant situation. However, do we not need to draw a line between criticism and vulgar abuse? Some other questions which come to mind: Should we allow individuals to bully and harass the judiciary every time an adverse order is passed? Why do judges need special protection from such abuses, what about the other organs of the government? The latter seem to be content with relying on defamation laws alone. But on the other hand there is the offence of sedition, which has the same underlying problem of unfettered and arbitrary power. This raises a bigger debate, which concerns the freedom of speech and expression, and also raises questions on other restrictive laws. Perhaps this bigger question needs to be looked into first.
One thing seems certain though, that merely outlawing criminal contempt will not do the job, perhaps better safeguards and a less ambiguous definition would be more helpful.
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