The Need to Revisit Anachronistic Criminal Contempt Laws in India

“We do not fear criticism, nor do we resent it. For there is something far more important at stake”- Lord Denning

The Contempt of Court concerns the fair administration of justice with the intent to punish acts hurting the dignity and authority of the Courts. The charge to safeguard the majesty of the Judiciary in India was accredited to the Judiciary itself by arming it with Contempt jurisdiction.

The raison d'être was to bolster the court’s authority and foster the public confidence in the Judiciary which was regarded as the central pillar of democracy.

Article 129 and 215 of the Indian Constitution provides that the Supreme Court of India and High Courts respectively shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

The Contempt of Courts Act, 1971, divides contempt into civil and criminal. Section 2(c) defines that criminal contempt consists of the publication of any matter or doing of something which (i) scandalises or tends to scandalise or lower or tends to lower the authority of any court prejudices or, (ii) interferes or tends to interfere with, the due course of any judicial proceeding or, (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Criminal contempt law, regardless of the greater good it was made to achieve has inadvertently trampled upon civil liberties in the twenty-first-century world.

Many Legal Scholars have gone as far as to equate the criminal contempt of court and sedition under the Indian Penal Code as the latter touches upon bringing hatred or contempt towards the government.

The Supreme Court’s Decisions at Odds with Themselves

In Brahma Prakash Sharma v State of Uttar Pradesh, the District Bar Association passed a resolution against two judicial officers who were in its opinion incompetent and uninspiring of confidence in their work. The Supreme Court held that there was no contempt of Court in the present case because a statement would not trigger contempt proceedings if it is made against the judges in their individual capacity only.

The Court held that the object of the Contempt jurisdiction was not the protection of the judges from any criticism they may be subjected to as individuals.

The Courts should weigh in two considerations in such cases (i) whether the consideration on the conduct or character of the judges is within the contours of fair and reasonable criticism and, (ii) whether it is merely defamation of the judge or contempt of the Court? However, it was not imperative to prove an actual interference with the administration of justice, it was enough if a defamatory statement or libel was likely to interfere with the administration of justice.

In the Namboodiripad’s case, the appellant serving as the Chief Minister of Kerala made a certain derogatory comment that the “judges are guided and dominated by class hatred, class interest and class prejudice and favour the rich over the poor”.

The Supreme Court while convicting the appellant of contempt of court examined the issue of freedom of speech vis-a-vis contempt of court. The court observed that the Freedom to Speech and expression should always prevail except where contempt is manifest, mischievous or substantial.

P.N. Duda v P Shiv Shankar superseded the above-mentioned case, the Court adopted a different approach by declining to initiate contempt proceedings against the respondent.

The notorious portions of the speech delivered at the seminar were that the “Supreme Court was constituted by Elite class and had sympathy for the Zamindars…” The other disparaging statement was, “…Anti-social elements, bride-burners and a whole horde of reactionaries had found a haven in the Supreme Court.

Justice Mukherji further observed that the speech read in its proper perspective did not interfere or obstruct the administration of justice but the use of the language employed in the speech could have been mild.

Interestingly, recently Justice Mishra cited the observations made in the P.N. Duda case to reinforce his conclusion that Mr, Prashant Bhushan is guilty of Contempt of Court.

Critics have often criticised the lack of standard code for execution of the contempt proceedings by pointing out the fact that P Shivshankar was a former judge of High Court and later the Law minister in the central government which made his case different from Namboodiripad’s.

S. Mulgaonkar v Unknown is a landmark ruling on the subject of contempt. In the instant case, Mulgaonkar, the then editor of The Indian Express refused to extend an apology to the Court and retract the article on certain contentious judicial decisions during the emergency, especially the infamous Habeas Corpus Case.

Ironically, the same bench that had initiated the Contempt proceedings held Mulgaonkar not guilty of contempt of Court. The watershed ruling gave the critical Mulgaonkar principles which inherently imposed a caution in exercising the contempt proceedings. Justice Iyer 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 jeopardised by a gross attack on the judges, where the attack is meant to obstruct the judicial process.

In 2012, the Calcutta High Court bench of Justice Arun Mishra and Joymala Bagchi decided the contempt case against the Chief Minister of West Bengal, Mamta Banerjee on her controversial speech wherein she alleged that corruption had made inroads into the Judiciary and asked, “why should judgement be delivered in exchange for money?”.

Banerjee was ultimately absolved of proceedings by the High Court. The Bench asserted that Contempt power be exercised cautiously, wisely and with circumspection. Recurrent or haphazard use of this power in anger or annoyance would not help to sustain the dignity of the courts instead may affect it adversely.

The case of Arundhati Roy is worth mentioning in the present discussion. The Supreme Court initiated suo moto contempt proceedings against the Respondent for making certain averments in an affidavit in another Contempt Case related to the Narmada Bachao Andolan.

Although the contempt proceedings in the first case were dropped against Ms. Roy and others, the Court held her guilty of criminal contempt of itself by imputing motives to the Court in her affidavit.

In the concerned Affidavit, Ms. Roy said that the court had ample time to issue a notice in an absurd and unsubstantiated petition but showed reluctance to entertain a scandal case that concerned national security and was manifest of corruption in the highest places.

The Court remarked that freedom of speech and expression is subject to restrictions prescribed under the law, like those under the Contempt of Court Act.

Moreover, the Court found that the respondent’s statements are not made in good faith and so it could not be protected under the garb of fair criticism. The judgement at present is crucial as it sets a precedent for future and sanctions the criminalisation of speech that is disapproving of the courts.

Comparative Analysis of Criminal Contempt across different Jurisdictions

In the United Kingdom, the offence of scandalising the courts was abolished in 2013 after a Law Commission report. This is interesting to note since the Indian law of Contempt of Court is derived from the Common Law. In the famous Spycatcher case, an English newspaper published a caricature of three judges and captioned it, “ You Old Fools”.

Lord Templeman denied initiation of contempt proceedings and wittingly replied that he was indeed an old man but whether he was a fool was a matter of public perception, although he did not think so.

The United States of America currently has watered down the contempt law by numerous judgements which affirm that the dignity of the courts cannot be established by silencing public opinion or by restricting the free discussions about the Court.

Contempt powers can be only used if there is a clear imminent and present danger to the disposal of a case. In Canada also, the courts are open to criticism unless there is an imminent danger to the administration of justice.

The Need to Revisit the criminal contempt law and Concluding remarks

At the outset, it is imperative to that there is a lack of uniformity in the contempt cases even after the introduction of the definition of “contempt” under the Contempt of Courts Act, 1971.

The reason being, the ambiguity and vagueness in the three parts that constitute the definition under the Act. The legislators have knowingly or unknowingly left the onus to fill the gaps of what constitutes scandalising the Court and what interferes or obstructs the administration of justice on the Judiciary itself.

This uncertainty and elasticity in the text of the law has led to an abuse of the authority by the Courts as Contempt of Court has become a mercurial jurisdiction over time giving sweeping discretionary powers to the courts as evidenced by a plethora of judgements.

The discretionary powers of criminal contempt are traceable to the Sovereign and is an aspect of the royal power.

This certainly is not a positive development especially in the backdrop of several cases of alleged corruption, partisanship and nepotism in the Judiciary.

Therefore, it is pertinent that the Courts have a system of checks so that the Courts exercise restraint and approach the contempt cases subjectively and not stifle the legitimate criticism of the Judiciary.

Justice Bharucha in the Arundhati Roy case noted that “the shoulders of the court are broad enough to shrug off certain comments” but the rulings on contempt tell otherwise.

The opaque system of appointment of Judicial Officers in the Higher Judiciary adds to the argument against criminal contempt laws as we lack a mechanism that ensures judicial accountability.

We must realise that a judge is fallible like anyone else. This fact shall instil a sense of sobriety in their judicial conduct.

Moreover, the admission of truth as a permissible defence put in place by a 2006 amendment in the Act has also failed to achieve the intended purpose as viewed in the Mid-Day Case where the accused had published a story hinting that the sons of a former Chief Justice of India had benefitted from the Judge’s orders directing sealing of commercial properties in the residential areas of Delhi.

Eventually, the accused were held guilty of Contempt of Court because the bench did not consider it necessary to weigh in truth as a defence while holding the journalists guilty making the procedural flaws in the case significant.

Another shortfall of the criminal contempt law in India is that it does not recognise the lack of intention i.e. mens rea as a defence to the act of contempt.

The Supreme Court in Dr D.C. Saxena v Hon The Chief Justice of India made it clear that the proof of mens rea is redundant in a contempt proceeding of summary nature.

The plain inference to be drawn from this case is that the principle of strict liability applies to criminal contempt cases in India. This reasoning would certainly bring in a state of anarchy. Such a law cannot pass the test of due process of law and accordingly would be constitutionally void.

India also has ratified the International Covenant on Civil and Political Rights which provides that the freedom of expression can be curtailed by law to maintain public order but only when it is essential for a legitimate purpose.

The United Nations Human Rights Committee has stated that any contempt of court proceeding must be justified in the exercise of the court’s jurisdiction to sustain orderly proceedings.

The Indian parliament must amend the Contempt of Courts Act to bring it in consonance with the International Human Rights instrument.

As a necessary consequence, in modern judicial systems, the criminal contempt powers of the courts must be abandoned at least in the form it is currently manifest in. The Courts have overlooked that the terms, “scandalising the courts and obstruction of administration” cannot have the same connotation today as it had in the British India.

Prior censorship on institutional criticism in a democracy not just curtails the freedom of speech but also causes injury to the very institution. The stark asymmetrical nature of power between the courts and the individuals in the criminal contempt law is antithetical to a democratically and constitutional setup like ours.

As noted in the Mamata Banerjee Case cited above, the best way to sustain the dignity of the Court and earn respect from the public is by the quality of their judgment, the fairness and objectivity in their approach, and by the restraint and decorum which they observe in their judicial conduct.

(The authors are students at the University School of Law and Legal Studies, GGSIPU)