Home case law Fair critique, accountability and colonial roots of contempt law in free society

Fair critique, accountability and colonial roots of contempt law in free society

September 19, 2020

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This article is written by Tuba Ghayas who is pursuing a Diploma in Intellectual property, Media and Entertainment from Lawsikho.

Table of Contents

Introduction

The Supreme Court on 14th August held an eminent civil rights lawyer Prashant Bhushan guilty of criminal contempt for two tweets he had posted about the Supreme Court and Chief Justice of India S.A. Bobde and subsequently, on Monday, 31st August, Mr. Bhushan was sentenced to pay a symbolic fine of one rupee.

Mr. Bhushan’s first tweet was about a picture of Chief Justice SA Bobde sitting on a 50 Lakh bike belonging to a BJP leader. In the second tweet, Prashant Bhushan shared an opinion on the role played by the last four Chief Justices of India in the country’s current democratic situation.

Reference for Judgment: SUO MOTU CONTEMPT PETITION (CRL.) NO.1 OF 2020 IN RE: PRASHANT BHUSHAN AND ANR.

What is Contempt of Law?

Under the Contempt of Courts Act, 1971; Contempt of Court is of two types -Civil contempt and Criminal contempt. The act of willfully disobeying the judgments, orders passed by the court, or willfully breaching the undertaking given to court amounts to civil contempt. Whereas Criminal Contempt means any publication (whether by words, written, oral, etc) that (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or 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.

In Brahma Prakash Sharma vs. State of Uttar Pradesh, the Supreme Court had held that to constitute the offense of Contempt of Court, it was not necessary to specifically prove that an actual interference with the administration of justice has been committed. The Court held that it was enough if a defamatory statement is likely or in any way tends to interfere with the proper administration of justice.

In Dr. D.C. Saxena vs. Hon’ble The C.J.I., the court held that scandalizing the court or judge, undermines people’s confidence in the administration of justice and brings the Court into disrepute. Such disrespect tantamounts to criminal contempt.

Under the amended provisions of Section 13 of the Act, the court may permit, in any proceeding for contempt of court, justification by truth as a valid defence if it is satisfied that it is in public interest and the request for invoking the said defence is bonafide.

Freedom of Speech vs. Contempt of Court

Before the conviction, the Supreme Court had given Advocate Bhushan an opportunity to apologize and withdraw his remarks against the judges. Mr. Bhushan, however, refused to apologize with the contention that the remarks were his bonafide belief. Bhushan said as an officer of court it is his duty to speak up when he believes there is a deviation from its sterling record. Advocate Prashant Bhushan was subsequently held to be guilty of criminal contempt as his tweets allegedly scandalized the courts and lowered the dignity of the court.

On one hand, Section 2(c)(i) of the Contempt of Court Act, 1971 criminalizes any publication or act which scandalizes or lowers the authority of any court or harms the dignity of the court; whereas, on the other hand, citizens have the freedom of speech and expression provided under Article 19(1)(a) of the Constitution. Though freedom of speech is not an absolute right and it allows the Government to frame laws to impose reasonable restrictions; there is a dilemma between the liberty of thoughts and expression and the supposed unquestionable supremacy of an institution especially in the current era of social media.

In Hari Singh Nagra vs. Kapil Sibal, 2011 Cri LJ 102 (SC): Article 19(1)(a) of the Constitution contemplates that freedom of expression is available to press albeit fiercely is no crime but a necessary right. A fair and reasonable criticism of a judgement which is a public document or which is a public act of a judge concerned with administration of justice would not constitute contempt. In fact, such fair and reasonable criticism must be encouraged because after all no one, much less judges, can claim infallibility.

On May 18, 1951, during the debate of the first Constitutional Amendment, Dr. B.R. Ambedkar discussed the judgments of the Supreme Court in the State of Madras vs Chapakam Dorairajan and Venkataramana vs the State of Madras and called them “utterly unsatisfactory”. The house chided him for disparaging the apex court and Ambedkar responded with, “I have often in the course of my practice told the presiding judge in very emphatic terms that I am bound to obey his judgment but I am not bound to respect it. That is the liberty that every lawyer enjoys in telling the judge that his judgment is wrong and I am not prepared to give up that liberty”.

Former Justice of Supreme Court, V.R. Krishna Iyer, famously termed the law of contempt as “having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of the public good, may unwittingly trample upon civil liberties”.

In 2007, Former Justice of Supreme Court, R v. Raveendran in Rajesh Kumar Singh vs High Court of Judicature of Madhya Appeal (Crl.) 321 of 2001, while setting aside the Madhya Pradesh High Court contempt conviction against a police officer had observed “It is possible that it is done to uphold the majesty of courts and to command respect. But judges, like everyone else, will have to earn respect. They cannot demand respect by a demonstration of ‘power’ (of contempt). It should be remembered that exercise of such power, results in eroding the confidence of the public, rather than creating trust and faith in the judiciary,” it observed.

Contempt law and International treaties

The International Commission of Jurists (ICJ) said civil rights lawyer Prashant Bhushan’s conviction for criminal contempt of court by the Supreme Court seemed to be inconsistent with the freedom of expression law guaranteed by the “International Covenant on Civil and Political Rights” which India has ratified. The ICJ said the judgment risked having a “chilling effect on the exercise of protected freedom of expression in India”. “While some restrictions of freedom of expression are permitted by international standards, a particularly wide scope must be preserved for debate and discussion about such matters as the role of the judiciary, access to justice, and democracy, by members of the public, including through public commentary on the courts”, it stated

The judgment goes against the Universal Declaration of Human Rights as it curbs the general protection of free speech and expression. It is also inconsistent with Principle 23 of The United Nations’ Basic Principles on the Role of Lawyers which says Lawyers “shall have the right to take part in public discussion of matters concerning the law, the administration of justice and the promotion and protection of human rights”.

Subjective Nature of the term “Scandalizing”

The offense of scandalizing the court is very vague which leaves a very wide scope of arbitrariness when judging the ‘scandalizing nature of action’. The question of whether the image of the Judiciary is maligned in the eyes of people is very subjective and a matter of public perception. Not everyone agrees with an opinion. People are very much capable and entitled to agree and disagree with an opinion. To safeguard freedom of speech and expression, there is a need to make criminal contempt law more aligned to international standards.

In the case of PN Dua v. Shiv Shankar and others, the Supreme Court held that mere criticism of the Court does not amount to contempt of Court. The Court observed that in a free marketplace of ideas, criticisms about the judicial system or judges should be welcomed, so long as such criticisms do not impair or hamper the administration of justice.

In 1978, two newspaper editors from the Times of India and the Indian Express were charged with contempt following the publication of articles that contained criticisms of the Supreme Court’s decision in ADM Jabalpur v. Shivkant Shukla, a case in which the Supreme Court refused to protect the right to habeas corpus during the Emergency. The case was ultimately dropped after Chief Justice M.H. Beg, who had initiated the proceedings, was not supported by the two other judges on the bench in his opinion that contempt had been committed.

Colonial roots of the law and other democracies of the world

Contempt law finds its origin in Monarchy where kings were the Authority and people were the king’s subjects who had no right to question the Authority. Subsequently, to ensure smoother administration of justice, this power was delegated to Judges and being delegated from the King, the Judges were held in high authority not to be questioned and disobeyed. To criticise the judge was like criticizing the king, which is why it was punishable. But today in a democracy, the people are supreme and the state authorities are public servants appointed to serve people.

The origin of the law of Contempt in India can be traced from the English law. The first Indian law of contempt was passed in 1926. Even though Britain has abolished the contempt law since its last proceeding occurred in 1930, India continues to follow the colonial law of suppressing the voices raising questions and seeking accountability from the judiciary that has the potential to malign the dignity of the court. The judiciary as a whole must reorient its basic philosophy to suit a socialist secular democratic republic and leave the feudal roots in the past. This transformation is essential if Fiat Justitia is to be a paramount principle of governance in India.

British Judge Lord Denning said, “We do not fear criticism, nor do we resent it.” In the matter of Metropolitan Police Commissioner in 1969, Lord Denning observed that though the Court has the jurisdiction to punish for contempt, they shall not use that power. The reason being they will have a certain amount of personal interest. This is against the legal principle that one cannot be a judge in their own case.

In Bridges v. California, Justice Hugo Black in the USA had observed that it is a faulty assumption that respect of judiciary can be won by shielding the judges from criticism. The American public opinion cannot be silenced on the pretext of Contempt of Court. It contended that instead of preserving the dignity of the court, the enforced silence will lead to resentment, suspicion, and contempt rather than enhancing respect.

In Canada, Courts can be criticized unless there is imminent danger to the administration of Justice. The Ontario Court of Appeal in R v. Kopyto (1987), Justice Cory observed: “courts are not fragile flowers that will wither in the hot heat of controversy.”

US Supreme Court Chief Justice John Marshall, two centuries ago observed that “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.”

Building distrust towards Judiciary

The close and friendly relationship between Judges of the Court and the Executive Government has shaken the faith of citizens in the Judiciary by the events of the last couple of years. The first tweet of Advocate Prashant Bhushan highlighting CJI Bobde sitting on a bike belonging to a BJP leader has raised a valid and bonafide concern in the minds of citizens about the questionable independence of the Judiciary. This cordial relationship defies the principle of checks and balances enshrined in the Constitution.

On 26 February 2020 Supreme Court Bar Association passed a resolution condemning now retired, Senior Supreme Court judge Justice Arun Mishra’s praise of Prime Minister Modi at the International Judicial Conference. “The SCBA believes that any such statement reflects poorly on the independence of the judiciary and so calls upon the Honourable Judges not to make any statements in future nor show any proximity or closeness to the Executive, including Higher Functionaries,” an SCBA statement said though not unanimous.

The Bar Association of India, a federal representing lawyers from Supreme Court Bar to the lower courts, law societies, and firms across the country said, “Such an act serves to dilute the perception of impartiality and independence and diminishes the confidence of the general public as judges of Supreme Court is expected to decide cases against the executive branch while upholding constitutional principles and the Rule of Law as paramount”.

In February 2019, Advocate Bhushan had raised questions on the appointment of interim CBI Director and accused Attorney General K.K. Venugopal of making a “wholly false statement” in the court. The Attorney General had filed a contempt plea in the court against Advocate Bhushan. The Narendra Modi government had followed suit and filed a plea of its own seeking similar contempt action against Prashant Bhushan. The Supreme Court bench of two judges observed that Contempt cases should not be used ordinarily yet issued a notice to Bhushan and accepted such a frivolous plea. The tweets were direct questions to the government not in any manner ‘scandalizing the court’ or ‘interfering in the administration of justice.’ If the court begins exercising contempt jurisdiction in such instances where the government and its functionaries are accused of lying, the distrust towards the judiciary will grow alongside the Government.

Timely justice has always been a challenge in front of the Indian Judiciary yet the judiciary has been very active in the cases regarding Contempt of Court like the Prashant Bhushan case. The Supreme Court has shown a lax attitude towards dissent cases and numerous social activists are in jail waiting for their hearings. The number of cases pending in front of courts creates an alarming picture. The role of safeguarding the fundamental rights of freedom of speech and expression of citizens seems to have taken backstage.

The inconsistent approach in deciding contempt cases

Mr. Bhushan is part of the elite society of Delhi having the support of imminent Jurist and Advocates. His father is a lawyer-activist and a former Union Law Minister in the Morarji Desai government. Though punishment imposed on Advocate Prashant Bhushan is of one rupee, this conviction and symbolic punishment set a bad precedent. There is a class and caste bias apparent on the face of it as other social activists did not ever get the same symbolic punishment for a similar degree of an offence under the Contempt of Court Act. Justice C.S. Karnan had made allegations of Corruption against 20 judges of the Judiciary in a sealed envelope – letter to the Prime Minister. He had not made any public allegations against any judge and yet he was convicted in 2017 and given the highest punishment under the Act i.e. 6 months of Imprisonment. The Supreme Court had passed a gag-order on case reporting of Justice Karnan contempt case and his side of the story was not allowed to be shared with the general public.

Lack of Transparency in Judicial Enquiries

Advocate Bhushan was held guilty for sharing his opinion about the judiciary on social media platform Twitter which was found to be the wrong procedure for raising the concerns.

In the 2009 contempt case on Prashant Bhushan, Judiciary was of the opinion that an In-house mechanism of dealing with corruption complaints and inquiry is in place and should have been resorted to. But there have been instances where the inquiries under the in-house mechanism were either cut short or bore no results. The question of what is the correct procedure for questioning and holding the judiciary accountable arises in the mind of people.

Let us not forget that Justice Karnan had raised his concern about corruption in judiciary in the letter to Prime Minister Narendra Modi in 2017, and instead of starting an investigation or establishing an Enquiry Body (under in-house mechanism) to probe the matter of Corruption in Judiciary to find out the correctness of allegations; but the Prime Minister referred the case to Justice Khehar and CJI chose to constitute a constitutional bench against Justice Karnan wherein he was convicted with 6 months of Imprisonment by the Judiciary. There is a need for a transparent system to deal with corruption charges against sitting and retired Judges.

Justice D.V. Shylendra Kumar of Karnataka High Court in 2010, had raised the question on Corruption in the Judiciary and said “Judges in superior courts (Supreme Court and High Courts) routinely misuse the power to punish for contempt of court more to cover up their own misdeeds than to uphold the majesty of law,”

Judges are not above the law

The colonial thought process of not holding the authority (in this case judiciary) accountable and presumption of the supremacy of the Institution is not a part and parcel of Free Democratic Society. Judges are humans; capable of making mistakes, being corrupted, manipulated, and not working for the welfare of people and upholding the Constitution. Judiciary cannot have blanket immunity from the questions raised by the Citizens. Citizens have a right to know what is happening in the Judiciary.

It is a known fact that the National Emergency by Prime Minister Indira Gandhi was wrong but legalized. In 1973, Prime Minister Indira Gandhi appointed a pliant Judge as Chief Justice of India’s Supreme Court by passing over three senior judges. Two years later, after a high court barred her from holding office because of election irregularities, she declared a national emergency. Civil rights and liberties were suspended, and her opposition party members were jailed. When her actions came before the Supreme Court, a bench of five justices, led by her pliant CJI appointee, sided with her. The emergency lasted for nearly 21 months.

Justice Felix Frankfurter in Bridges v. California said “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities. There have sometimes been martinets upon the bench as there have also been pompous wielders of authority who have used the paraphernalia of power in support of what they called their dignity. Therefore, judges must be kept mindful of their limitations and their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt.”

Justice Hope observed, “The truth is of course that public institutions in a free society must stand upon their own merits: they cannot be propped up if their conduct does not command the respect and confidence of the community; if their conduct justifies the respect and confidence of a community they do not need the protection of special rules to protect them from criticism.”

Conclusion

Most importantly, the judiciary should be mindful of actions that may create fear in the mind of people and stop them from voicing their bonafide opinion. The confidence and respect of citizens in the judiciary can be achieved only by fair judgments and not fear of contempt proceedings. Instead of focusing on curbing or restricting criticism, the Supreme Court should rather focus on speedy disposal of cases, protecting the rights of the citizens, and take accountability for its actions. There is a need for more transparency in judicial proceedings of Inquiries against the sitting and retired judges. The public has the right to be aware of such proceedings. There is a need for law reform in the Contempt of Court Act to decriminalize the criticism of courts. In current times of social media, there is a need to re-evaluate the definition of criminal contempt.

The utmost priority should be to uphold the principles of the Constitution and safeguard the rights of people.