Editor’s Note: In this post, Sahiba Vyas and Varun Litoriya* critically evaluate India’s criminal contempt law against the backdrop of the recent Prashant Bhushan case. They point out that the criminal contempt law is vague, its “scandalising the court” standard needs a relook, and there is danger of criticism of individual judges also being adjudged as contempt. On this basis, they argue that the law needs to be changed.  

Introduction

Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence and faith in the common man

Chief Justice Marshall of the American Supreme Court

The recent conviction of civil rights lawyer Mr. Prashant Bhushan in the contempt case has again raised the issue at the heart of the debate around the law of contempt. The three-judge bench of the Hon’ble Supreme Court (hereinafter SC) in the impugned case precluded the fact that the contemnor was trying to bring the serious shortcomings of the judiciary to the notice of public so as to demand systematic correction of the same. The SC in the case of Dr D.C. Saxena vs. Hon’ble CJI held that for preserving the democratic health of public institutions, constructive public criticism may slightly overstep its limits. The contradiction in both the judgments by the SC is due to the uncertain definition of criminal contempt as provided in Section 2(c)(i) of the Contempt of Courts Act, 1971 (hereinafter Act). Further, the interpretation of the word “scandalising” is based on the discretion of the court which widens the ambit of the said provision. The uncertain demarcation of the said provision makes it vague, thus failing it on the test of manifest arbitrariness and proportionality and impeding the rights enshrined in Article 14 and 19 of the Constitution of India.

The Judiciary’s Wrath Over Tweets

The SC found a couple of tweets by Mr. Bhushan contemptuous, i.e., bringing disrepute to the dignity, the authority, the administration of justice of the Court and to the office of Chief Justice of India (hereinafter CJI) in the eyes of the public at large. He commented on the failure of the last four CJIs in protecting democracy from getting destroyed and also provided reality checks to the Hon’ble CJI S.A. Bobde for not following the pandemic protocols and not providing access to justice to the migrant labourers during the pandemic. Earlier, Mr Bhushan had taken the cause of the migrant workers before the SC, pointing towards the mismanagement of the lockdown by the government that created a humanitarian crisis. However, instead of looking into the matter, the court stated, “You don’t have faith in the judiciary. This institution is not a hostage of government”. In a 2019 press conference, four sitting judges of the SC stated that the democracy won’t survive if the SC does not maintain equanimity. These are just a few examples. In recent times, eminent persons have made critical comments regarding the SC. Thus, it is important for the judiciary to take such criticism with magnanimity.

The Problem of Wide Discretion

The Prashant Bhushan conviction throws light on the vagueness of the Act. Justice V.R Krishna Iyer found the contempt law in India to be a vague law having wandering jurisdiction with uncertain boundaries. The curious cases of Shivshankar and Namboodripad further substantiate this vagueness. In the former, terming the judges of the SC as “anti-social elements, foreign exchange violators, bride burners” was held not to be contemptuous. In contrast, in the latter case, Namboodripad was convicted of contempt for a solely conceptual comment from a Marxist perspective on the role of the judiciary. This variation itself talks about the scope of contempt being too uncertain. Additionally, the statutory defences of truth and fair comment or criticism as given under Section 13 of the Act have been held to apply numerous times by the SC in cases where publication was in public interest. However, whether to accept these defences or not is on the full discretion of the victim (the court) which is prudently visible in Bhushan’s case.

In the Bhushan case, raising a fair concern regarding the SC’s ignorance towards important matters and failure of the four CJIs in using their powers does not amount to “scandalising or lowering the authority of the court”. The exhaustive inherent power of the SC to punish for contempt under Article 129 should be given limited scope by the judiciary. The vague and subjective definition of scandalizing the court must be clarified and given precise definition as this provision entails serious criminal consequences. Often, this vagueness of the law is used by the Court to broaden the sphere of contempt. The judiciary should not believe in silencing the criticism, which will ultimately exacerbate if people are not given reasonable freedom of speech. Earlier, many retired judges of the SC and eminent jurists had pointed it as an act of stifling criticism. The SC had itself rebuked the MP High Court and opined that judiciary’s dignity is not so shatterable that it might crash when a judge’s integrity is being questioned. Hence, the Court is hampering its own dignity by terming tweets as contemptuous, since there are instances in the recent past where the court has abdicated from its constitutional mandate by failing to check on the government excesses and violation of fundamental rights.

The Problematic “Scandalising the Court” Standard

Contempt law in India has its roots in English law. But after the advent of English Contempt of Courts Act, 1981 the paramount objective of the concerned law is to establish cooperation with the requirements of the European Convention on Human rights. Further, to strengthen  the concept of freedom of speech and expression, contempt on account  of scandalising the court has been abolished in the United Kingdom, as its erstwhile existence not only protected the administration of justice as an ongoing process but also provided protection against any general comment on courts and judges. Thus, in England, the prime element to convict or charge someone of contempt is only to see if the publication in question creates a substantial risk of prejudicing any pending hearing.

The demand for embedding the “wilful disobedience” principle i.e. intentional violation or disregard of a known legal duty with or without malice involving more than just knowledge, and nixing the “scandalising the court” standard as a ground for contempt cases has been ignited several times in India. In 2018, the Department of Justice wrote to the Law Commission asking it to examine the above mentioned amendment to the Act. However, the Law Commission denied this recommendation, saying that diluting the said provision will expose the judiciary to loss of dignity and disrepute. Hence, the threshold of “scandalising the court” itself needs a relook.

Safeguarding the Judges v. Safeguarding the Institution

The English Contempt of Courts Act, 1981 condemns only the acts which are contemptuous towards judges in their judicial capacity, as the power to punish for contempt of the court is to protect the functions performed by judges and not for the safeguard of judges as persons. The American courts also embody the concept of “eminent danger” to public safety. As per this standard, for imposing charges of contempt,  the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. The idea of safeguarding judges from fair criticism is abhorred in the US and hence no law can be enforced which abridges the guarantee of free speech enshrined in the First Amendment of the US Constitution. The law in Canada says that contempt case will be initiated when there is “a real and substantial risk to the fairness of the trial” and there are no alternatives to prevent the risk, and where the benefit of such a ban outweighs the deleterious effect to the freedom of speech and expression. According to Australian jurisprudence, no one is charged for contempt if, any contempt so is an “incidental and unintended by-product of the discussion of public affairs” i.e. it is in interest of public. In India the SC in the Brahma Prakash case stated that a reflection on the conduct of an individual judge or in reference to discharge of duties by an individual judge would not amount to contempt, if done in exercise of the right of fair and reasonable criticism. However, the same was not considered in Bhushan’s case.

The SC is a public institution to uphold the administration of justice, and raising a fair concern regarding the CJIs’ failure to uphold the constitutional value and serve the SC, is in public interest and doesn’t amount to scandalising or lowering the authority of the court. Ironically, such concern will be helpful to look after proper functioning of the court. Therefore, equating the CJI as the SC is in itself a flawed analogy and is not in line with the contempt law in other parts of the world. Thus, from the comparison with all these foreign jurisdictions, the conclusion can be drawn that the 1971 Act has become obsolete and there is a need for establishment of threshold to fence the scope of contempt law in India and to preserve the constitutional freedoms accordingly.

Need to Revisit the Authoritarian Law

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. We do not fear criticism, nor do we resent it. For there is something far more important at stake it is no less than freedom of speech itself.”

Lord Denning

After analysing all the aspects of contempt law in India, the authors have found this law to be draconian in nature which causes prejudice to the one charged. The doyen of the Indian Bar Mr Fali Nariman while delivering his speech on the topic “The Law of Contempt: is it being stretched too far?” also expressed his opinion regarding the extensive nature of the contempt law stating it to be a “mercurial jurisdiction” with no definite set of rules and constraints. If public confidence in the Indian judiciary today is low, this is partly because of the time it takes for cases to be decided. Public confidence in the judiciary will be restored if courts reform themselves instead of muzzling the outspoken. The authors share the view that the present law must be suitably replaced to remedy some of its problems highlighted above. The nature and concept of criticism has evolved in contemporary world i.e. what might have “shaken the public’s confidence in the judiciary” at the time of advent of contempt law, may just be considered as a fair criticism now. Thus, the legislature should be mindful of the same while revisiting the law. Further, incorporating the principle of “wilful disobedience” will also aid in protecting the defence of “fair comment” used against the charges of contempt. An institution like the SC should be subservient to the constitutional values of free criticism with broad shoulders to keep the esteem of a democratic nation alive. 

* Sahiba Vyas and Varun Litoriya are fourth year students of National Law University, Orissa, India.