Scandalizing the Court: Who will be the custodian of the custodians?

The recent decision of the Supreme Court in Re: Vijay Kurle & Ors revives the discourse flanking the point of law known as “scandalizing the court”, the emergence of which transpired first in R. v. Almon. The locus of Justice Wilmot’s rationale in this dictum was to uphold public allegiances and surround the judiciary in a “blaze of glory”.

The nineteenth century saw the Privy Council in McLeod v. St. Aubyn contend that the committal of contempt by scandalizing the court was obsolete in England, yet was a requisite in the context of English colonies for the preservation of respect for the Court, and by extension, the Crown.

The offence in India was a device of subservience to the British Imperialists and is an element of our colonization experience.

The Constituent Assembly ferociously debated upon the addition of the term “scandalising of court” whilst discussing the offence of contempt. RK Sidhva had then avered “judges have not got two horns; they are also human beings. They are liable to commit mistakes". Upon reaching a stalemate, the Constituent Assembly adopted the vague term “contempt of court".

In 1971, the Contempt of Courts Act was enacted, Section 2(c) of which provides that whoever "scandalises or tends to scandalise" the court may be held guilty of criminal contempt.

The nomenclature nevertheless is undefined in the Act, and ergo dons the veil of uncertainty. Joseph Moscovitz describes the scopious nature of contempt of court as a “Proteus of the legal world”, that assumes infinite forms.

2013 saw the abolishment of the “scandalizing of court” as a form of contempt by the Crimes and Court Act in the United Kingdom, on the grounds of freedom of expression, thereby ridding the law of England and Wales from the offence.

India, however, continues to grapple with the criminal offence which is an impediment to the fundamental guarantee of free speech and the well-oiled machinery of a democracy. This thrust of this piece is the desideratum of balance between an attack and criticism.

Courts are not fragile flowers that would wilt in the heat of criticism, Fali Nariman contended. He urged the courts to adopt this Atkin and Templeman approach.

The discourse surrounding the Contempt of Courts Act led to the the Law Commisison Report that concluded that the Act of 1971 was not the “power to punish for contempt", but was a procedural statute. The source of the court's power of contempt resided in Articles 129 and 215 of the Constitution. The Report failed to explore the imperative of finding a balance and the consequential harms of the criminalization.

Re: Vijay Kurle & Ors rehashes the scandalise of court, the Apex Court herein held :

“...No litigant has a right to attribute motives to a Judge. No litigant has a right to question the integrity of a Judge. No litigant has a right to even question the ability of a Judge. When the ability, integrity and dignity of the Judges are questioned, this is an attack on the institution. It is an attack on the majesty of law and lowers the impression of the Courts in the public eye.” (Paragraph 86)

The diktat of the Supreme Court brings us to question the criminal offence of scandalising the court in light of the democratic guarantee of free speech. The Apex Court attributes this restriction to the weakening of the public perception of the judiciary. In PN Duda v. P Shiv Shankar, conjuring Mill’s theory of a free marketplace of ideas , the Supreme Court upheld this premise in context of criticisms of the judicial system or judges and welcomed critique. However, this judgment came with the caveat “so long as such criticisms do not impair or hamper the administration of justice.”

Thereafter, reiterating the commitment of the judiciary to be perceived as “majestic”, EM Sankaran Namboodripad v. T Narayanan Nambiar saw the Supreme Court hold that “an attack upon Judges which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions. It weakens the authority of law and law courts.” (Paragraph 32).

Post facto this case, Parliament enacted the Contempt of Courts Act, making it a criminal offence to scandalize the court.

Section 5 of the Act recognizes fairness in criticism. While the Apex Court has taken cognizance of the necessity of fair comments, the problem lies in the addition of the qualification of fairness to the critique. This risks infringement of Article 19(1)(a), since it draws a distinction between view points.

The subjectivity in discerning a comment as fair or unfair places the Court in a position imbued with thorns. The understanding of a fair argument stems from the mainstream societal comprehension of acceptability, and therefore, an “unfair” argument might be a deviant from the norm. By extension, this places a limitation to the tolerance of a diversity of viewpoints and does not allow for the free market of ideas as invoked by the Supreme Court.

The UK Law Commission Report on the abolishment of scandalizing the court as a form of contempt advances that the offence places courts as a judge of their own cause, perpetuating an image of a self-serving judiciary.

The rationale of the citizenry losing faith in the justice system is treated as a “wrong” done to the public. This argument was also seen in Re: Arundhati Roy. Institutions draw their legitimacy from people in a democracy and the criminalization of criticism of a resilient institution such as the Supreme Court of India is at a risk of being perceived as self-serving.

This conception would only weaken the faith drawn by the institution as opposed to strengthening it, ergo defeating the objective of the offence. The interplay of subjectivity and pursuant criminal action acts as a deterrent to free speech.

Truth as a defence was recognized by the Apex Court, and this piece at no point argues that untruths be allowed. Reputational injuries of judges could also be checked through defamation law vis-a-vis the Contempt of Courts Act.

The ambiguity that engulfs the understanding of "scandalizing of court” could lead to a situation of conflating a reputational injury of an individual judge with the destructive attack of the entire judicial system. This would be a threat to the fabric of a democratic structure that thrives on drawing legitimacy from its populace.

The Contempt of Courts Act, by the criminalizing "scandalizing of court" hoists the call for an unambiguous procedure to answer the question: Quis custodiet ipsos custodes? Who will be the custodian of the custodians?