In the previous post, we discussed all the facts relevant to Prashant Bhushan’s Contempt Case—In this post, I will analyse the Supreme Court’s jurisdiction of Contempt and try to make an objective effort to draw a line between free speech and the law of contempt as in the recent times’ judiciary has exercised its power of contempt which led to a burning debate. The premise for the law of contempt of Court stems from the accountability of Courts. Although the law of contempt has originated from English law, it is not entirely an imported concept. The age-old systems to protect courts or assemblies (sabhas) point to the indigenous development of contempt law. Kautilya wrote in Arthashastra that, “any person who insults the King, betrays the King’s council, makes evil attempts against the King… shall have his tongue cut off”. Although it is not similar to the modern-day law of contempt but it shows that there was an attempt at protecting the sanctity of the images of justice.
Supreme Court: Court of record and power to punish for contempt of itself
Under in the Indian Constitution, Article 129 states that “The Supreme Court 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 provision defines the position of the Supreme Court. Dr B.R. Ambedkar explained the meaning of “Court of Record” in the Constituent Assembly on 27.05.1949 as, “A court of record is a court the records of which are admitted to be of evidentiary value and they are not to be questioned when they are produced before any court.”
And, the power of contempt follows from the fact that the Supreme Court is a court of record, as the High Courts. The provisions of contempt were included in the Constitution itself because, in England, this power is largely derived from Common Law and as we have no such thing as Common Law in India, we felt it better to state the whole position in the statute itself. The power of contempt is extraordinary and is exercised only to uphold the majesty of the judicial system. On the question of contempt, the Supreme Court has a summary jurisdiction to punish contempt of its authority. In the case of Om Prakash Jaiswal v. DK Mittal (2000), the Supreme Court emphasised the need for the concept of contempt as follows:
“Availability of an independent judiciary and an atmosphere wherein Judges may act independently and fearlessly is the source of existence of civilisation in society. The writ issued by the Court must be obeyed…..Any act or omission which undermines the dignity of the Court is therefore viewed with concern by the society and the Court treats it as an obligation to zealously guard against any onslaught on its dignity.”
The logic behind the contempt jurisdiction is that if the confidence in judiciary shakes, the due administration of justice suffers. But is there any definite meaning of contempt? The Contempt of Courts Act, 1971 defines criminal contempt as that which ‘scandalizes the court’ or ‘prejudices judicial proceedings’ without providing any explanation of these key terms. An attempt was made in Jaswant Singh’s case and it was held that the offence of criminal contempt is committed when a court is scandalised by casting “unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice”. This is an extremely wide definition and it should not be read apart from the goals set forth by the Founding fathers under the Constitutional provisions. Even though uncertainty makes a law flexible but we cannot ignore the evils that come with this.
Also, according to Justice Mukherjea in a Brahma Prakash case, there must be two primary considerations when dealing with contempt of court amounting to “scandalisation of the court” – Firstly, whether the act is within the limits of fair and reasonable criticism, and secondly, whether the act is a mere libel or defamatory in nature or contempt of court and if, it is a mere defamatory attack on the judge and is not calculated to interfere with the due course of justice, it is not proper to proceed by way of contempt. The accused must be held guilty only after these two considerations are adjudicated upon. Furthermore, in an interesting case where the accused- U.K. Krishna Menon charged the judiciary as “instrument of oppression”, and then he raised an interesting three-fold contention in his defence that: [a] the law of contempt must be read without encroaching upon the guaranteed freedom of speech and expression under Article 19(1)(a); [b] the intention of the contemnor in making his statement should be examined in the light of the political views as he was at lastly to put them before people and, [c] Lastly the harm done to the court by his statement must be apparent. Although it was rejected by the Court and he was held guilty for stating that judges are “guided and dominated by class hatred” and favours “rich against the poor” as these words weakens the authority of Courts, and have the effect of lowering the prestige of judges and courts in the eyes of the people. Here, two questions arise: what does the court aim to protect from this law and what image of justice the Court seeks to preserve? A definite answer must come from the Apex Court.
Another question which arises is what are the “standards” of criticisms? According to Perspective Publications judgment, a fair, reasonable, temperate and legitimate criticism of the Judiciary or the conduct of a Judge in his judicial capacity is permissible – but what about the tweet/comment of lawyer-activist Bhushan on the CJI – isn’t that a fact that the Hon’ble CJI was “riding” a Harley Davidson without a mask? Should the reasonable restriction of contempt of court overshadow the freedom of speech and expression? Herein a quote by Justice Felix Frankfurter is relevant:
“Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions…..therefore judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candour however blunt.”
A way forward
When should the power of contempt be exercised by the Courts? The courts must remember that “Speech is duty and silence cowardice”. The power of contempt is to be availed to aid in the administration of justice and not to shut out voices that solicit accountability from the Court for its fallacy of omissions and commissions. To suppress constructive criticism- or demand for accountability- is not and cannot be a ‘reasonable restriction’. As Prashant Bhushan replied in his affidavit before the Supreme Court, “power of contempt cannot be initiated “into service to stifle bonafide criticism” from citizens who are well-informed about the omissions and commissions of the Supreme Court”. The power must be exercised cautiously, wisely and with circumspection. The Constitutional Courts must protect our free speech even “against judicial umbrage”. Lord Atkin has observed, “Justice is not cloistered virtue”, hence, every judgment and conduct of judges must be open to public discussions and criticisms as they hold constitutional trust, confidence and faith of ‘The People’.
Further, Justice Brenan has observed in Sullivan’s case, “it is a prized privilege to speak one’s mind, although not always with perfect good taste, on all public institutions and this opportunity should be afforded for vigorous advocacy no less than abstract discussion.” Justices should not enter into public or political controversy instead they should rely on their conduct itself “to be its own vindication” and their lordships must have broad shoulders when someone criticises the Courts with an informed opinion.
The Courts must understand that the power of contempt is needed just for the administration of justice and punish those who disobey the order of the courts, not to gain respect. A more relaxed system is something we should strive for – remember post-Skycatcher judgment the British media banner published the photos of judges upside down calling them “You Fools”. Senior Advocate Fali S Nariman asked one of the judges, why they did not initiate contempt against the media, the Court replied “it is just an opinion. We do not agree.”
In conclusion, it is for us, as citizens, to think whether the court will be able to instil institutional greatness by this flourishing law of contempt- or whether this will lead to, as observed in Barnette’s case, the “compulsory unification of opinion [that] achieves only the unanimity of the graveyard.”
[Note: I would like to thank the editorial board, Manasi Bhushan and Diksha Dadu for their comments]