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It is one thing to criticise the approach of the Court in this particular case, but that does not justify the scrapping of Act.
After the judgment in Prashant Bhushan’s case, there is a country-wide debate on the significance of contempt law in India. Unmindful of the conditions prevailing in India, comparisons are made with other nations across the world to demonstrate that liberal democracies take a completely opposing view and welcome harsh criticism on functioning and working of the courts.
There is a real need, therefore, to know thoroughly, the Indian law of contempt of court. All the more because the legal fraternity is likely to be misled about this branch of the law and the contempt jurisdiction vesting in the superior courts. We may be called upon to emulate and follow the examples from other democracies, but I humbly feel that so long as the Contempt of Courts Act, 1971 (Act) stands in its present form, the comparisons are misplaced.
Our courts have indeed been mindful of the principles that are discussed in the context of the law declared in other jurisdictions. In Baldev Singh Gandhi vs State of Punjab, the Supreme Court quoted verbatim the opinion of Holmes and Brandies JJ in American Communications v. Douds that "the greater danger to democracy lies in suppression of public discussion and that ideas and doctrines thought harmful or dangerous are best taught (fought) with words.”
In India, our Constitution has specifically empowered the competent legislatures to enact the law. The Union List and the Concurrent List empower legislation. Articles 129 and 215 of the Constitution confer the status of a “court of record” on the Supreme Court and the High Courts, empowering them to punish for contempt of themselves.
It is futile to label our law as archaic, colonial, old fashioned and to be done away with. It is for Parliament and various state legislatures to decide if the Constitution is to be amended or if the Act, a post-independence law, is to be repealed. Courts cannot refuse to implement valid law.
This is an Act to define and limit the powers of certain courts in punishing contempt and to regulate procedure therefor. It is erroneous therefore to suggest that the Act does not guide the exercise of power to punish for contempt of court. While Articles 129 and 215 may be the source of the power, it does not mean that the Act can be ignored or brushed aside. This aspect is clear from a reading of Section 9 of the Act. Sections 3 to 8 and Section 13 (recently amended) explicitly provide that subject to conditions, mere criticism of the working and functioning of the court or a judge or his judgment will not amount to contempt. Further, the word “contempt” is not defined in the Act but the phrase “contempt of court” is, and that enables us to appreciate that the right to free speech and expression and the freedom in that behalf is neither taken away, curtailed or interfered with by the Act.
The law is designed to uphold the majesty of law and dignity of the courts to secure a feeling of confidence of the people in general and for due and proper administration of justice in the country. The Act does not suppress truth. Section 13(b) provides for justification in public interest and a bona fide request for invoking truth as a defence. In my humble view, the request for doing away with the Act is not justified at all. Such a law can exist along with the Constitution of India, particularly when the substantive power to punish for contempt is derived from the Constitution itself.
One must view the court as an institution set up for justice administration, whose dignity is paramount. Nothing which shows disobedience or disrespect to a court of law and its officers is acceptable. However, it is only that which fits the definition of civil and criminal contempt under the Act that is punishable. Anything outside it may be contemptuous and defamatory but is not punishable. Understood thus, the Act can cohabit with our right to free speech and expression guaranteed by the Constitution.
This right, in any event, is not absolute. All the more, therefore, the demand for abolition of the Act or diluting its provisions is unwise. Writers, critics and legal experts would be well advised to read the law as a whole and not in bits and pieces. A holistic view is required to be taken. All provisions of the Act have to be read together and harmoniously so as to analyse and interpret it. Its object and purpose should not be overlooked.
It is one thing to criticise the approach of the Court in the Prashant Bhushan case, but that does not justify the scrapping of the Act.
The Bhushan Judgment
The Judgment in Prashant Bhushan’s case was rendered rather too expeditiously. The proceedings were concluded swiftly and when no physical hearings were permitted. Therefore, the criticism of legal experts may be valid, but thereafter, to attribute motives to the Bench deciding the case is most improper. That the senior most judge on the Bench is retiring shortly and therefore the matter was concluded and decided hastily is a extremely serious charge levelled from some quarters. Such a charge cannot be lightly leveled, recklessly and irresponsibly.
One should avoid taking extreme positions in sensitive and delicate cases of the Supreme Court. A debate on the same can never be prohibited. However, greater sensibility needs to be exhibited. Decency and self restraint demands that criticism of the judgment should not result in personal attack on any judge forming part of the Bench.
We must realise that vested interests are working tirelessly to finish all institutions of democracy established under our Constitution. They would achieve and accomplish their object if civil society also joins them in mounting a scurrilous attack on the existence and efficacy of these institutions and particularly of our justice delivery system. We have repeatedly witnessed how during discussions in Parliament, legislative assemblies, public speeches and discourses on public platforms, orders and directions of courts are severely criticised and judicial interventions, though legitimate and timely, are viewed as undue interference and obstacle in development and progress of our nation.
Cases like that of Prashant Bhushan are few and far between. It is the executive governments that would stand to gain if the law is repealed as desired by the critics of the judgment. If public officials and political leaders have no fear of contempt action they will disobey with impunity, valid and binding orders and directions of courts. There will be no respect and regard for the rule of law and functioning of our courts. Do we relish instances of ridicule and total disrespect and disregard of our justice delivery system even more than in the past?
The Late Mr. Namboodiripad may have launched a principled attack on the courts and by legitimate means. Nonetheless, our courts pulled him up even though he was a Chief Minister of a state. An aberration or error in the case of PN Duda v. P Shiv Shankar proved far too costly and encouraged a cross-section of society to comment unfairly and irresponsibly on orders of the competent courts, delivered in cases as serious as dealing with personal liberties of our subjects. This essay can be filled with numerous instances, but to say that one judgment in a criminal contempt case necessarily means that the Act curbs and curtails free speech is neither a fair nor accurate understanding of the Act.
The power may not have been exercised as expected by some members of society. But is not the well-informed, highly educated, duly qualified strata of our society also responsible for the downfall in judicial standards? Can all professionals and legal luminaries escape the consequences of their own decisions and actions? Why do the most successful, truly qualified, brilliant, thoroughly professional, gifted advocates spurn the invitation to become judges? Why do civil society and all stakeholders maintain silence and readily accept bad appointments in the judiciary?
If men of integrity and character, committed to upholding the Constitution and the laws are not appointed in the higher judiciary then contempt law is bound to be lightly invoked to silence critics. Today, an offer of judgeship is routinely declined by saying that the advocates would not receive a pay packet on par with their monthly earning as lawyers. Is this a valid ground? It is time to introspect about the lack of quality in our Justice delivery system else, as the legendary Justice Krishna Iyer commented, “In future there would be no appointments but disappointments.”
I neither wish to be misunderstood, nor do I support the judgment in Prashant Bhushan’s case. I agree that the matter was not urgent at all and could have awaited adjudication at a full and regular physical hearing. Secondly, the charge of criminal contempt demands a higher degree of proof than ordinary and routine matters. Therefore, before indictment, it was incumbent on the court to have fully satisfied itself about the impact of Mr. Bhushan’s tweets on the majesty of law and dignity of the court.
Even if the advocate is senior enough and practicing for 30 years and is also a well-known activist, are his views so powerful as to obstruct the smooth administration of justice? Are his comments alone exhibiting a tendency to obstruct the administration of justice? Was it impossible to shrug off his comments? If the test as applied in Arundhati Roy’s case and a host of other cases is relevant, then, whether that is satisfied should have been ascertained fully. With great respect, I fail to comprehend how critical comments of one of the practicing advocates inevitably result in tending to, much less actually lowering the authority of any court.
Ultimately, all judgments are rendered in the backdrop of facts of an individual case, but sometimes as in PN Duda and Balasaheb Thackeray, they become binding precedents for High Courts and other benches of the Supreme Court.
There are at least ten judgments of the Supreme Court delineating as to when and how the power to punish for criminal contempt has to be resorted to. The judgment in Perspective Publications (P) Ltd v. State of Maharashtra has been followed on at least five to ten occasions and the test evolved is that this power has to be exercised with circumspection in exceptional cases, not to teach a lesson to anybody, but to uphold the majesty of law and dignity of any court of law. They have not been extensively referred.
Finally, all powers including judicial are in the nature of trust. They ought to be exercised to uphold public faith and confidence in the judiciary. We must, with respect, endeavour to assert our authority as courts of law by also accepting mistakes and correcting ourselves from time to time, particularly by improving the quality of our adjudication. Need anything more be said in addition to the caution administered by the Supreme Court itself in Keshav Singh v. Speaker? The court observed as under;
“...We must never forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their Judicial conduct..."
Let us not therefore deface and defile the statue and the temple of justice itself while targeting one error or mistake of those in charge of managing its affairs.
The author is a former judge of the Bombay High Court.