Contempt Of Court – Time To Let Go?
October 6, 2021
The Victorian era law has run out of legs or so we would like to believe. Today, contempt of court can land us in jail. So should we stop commenting on the cases, the judges and the court? If yes, why so? If no, how far can we? What can be called “contempt of court”?
Answers to some tricky questions can avoid us jail time. We may not even get jail time. Just a heavy fine sometimes! The question is- do we really want to face unnecessary punishment? Does it deserve a punishment at all? But before that, should it even be an offence? NO!
“Power to punish for contempt is a constitutional power vested with this court which cannot be taken away even by a legislative enactment”, said the bench of Justices SK Kaul and MM Sundresh of the Hon’ble Supreme Court while holding Rajiv Daiya, chairperson of Suraz India Trust guilty of contempt for allegations against judges and court staff a few days ago. While this maybe one apt case for punishing the contemptuous offence, but on the stance that punishment for contempt is itself provided by the constitution, can it never be taken away? Surely constitution has kept pace with changes in the society and changes in law. So it begs the larger question, shouldn’t we be more forward looking and get rid of the out-dated ‘contempt of court’ as offence that has become redundant and reeks of intolerance to free speech. Isn’t the Constitution of India a ‘living document’ anymore?
Perhaps one of the few remaining British legacies that seem important in India today, Contempt of Court was originally a Common Law principle which acted as guard to preserve the King’s judicial power in England. And judges’ panel acting in his name. It made its way to India with the colonial master at the helm.Initially only High Courts of Calcutta, Bombay and Madras were vested with powers of contempt in the pre-independence era. And then, the High Court of Allahabad too. So it has never been ever-present at all.
Only in 1926, The Contempt of Court Act was first enacted. Several princely states like Hyderabad, Madhya Bharat, Saurashtra, Pepsu etc. still had a corresponding state enactment on contempt regardless, possibly to wield their authority. In 1927, while deciding the Muslim Outlook Lahore case, the 5-judge bench of Lahore High Court (now in Pakistan) reaffirmed its earlier decision in The Crown v. Sayyad Habib rendering that every High Court had an inherent contempt jurisdiction.Courts in India have latched on to it ever since.
Yet, the constitutional framers did not provide for power of contempt in the Draft Article 108 (now Article 129). However, during the Constituent Assembly debate, Dr. B. R. Ambedkar made a technical contention that, primarily contempt power lies with a court of record. Although “court of record” is undefined in the Indian Constitution but as per Jowitt’s dictionary of English law it is “where judicial proceedings are enrolled for perpetual memorial and testimony. ” However, courts in England get power of contempt from the British Common Law. A technical argument shouldn’t have sown the seeds of permanence!
In India however, Article 129 of the Constitution was framed and worded as, “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.” Similarly High Courts can wield the sword of Article 215. To further and more specifically protect the court’s sanctity, The Contempt of Courts Act, 1971 was enacted, defining and penalising civil and criminal contempt. By virtue of Section 2(b) and 2(c) respectively, constitutional courts have authority to punish anyone wilfully disobeys its judgment, order, direction or writ, or who tries to scandalize the court or interfere or obstruct its proceedings. It serves many goals.Reinforceauthority. Forbid suggestion of malice or wrong doing against judges or their judgments.Boost public confidence in judiciary. Lastly and more importantly, ensures courts are not brought into disrepute: by words or actions. The principle has become inviolable.
But dangers lurk. Courts can suomoto institute contempt proceedings. On its own it can decide if something said or done is ‘contemptuous’. A question upon the neutrality of the bench, serious allegations against the judges, fairness of trial, hint of bias, financial impropriety, political proximity, appointment and promotion of judges, independence of judiciary, and even correctness of a judgment can sound like an attempt to intentionally defame a judge or lower court’s authority. But aren’t these questions legitimate? Can these issues not arise? Can these questions remain untouched? How long?
Some glaring examples, even one per year, answer everything. It was 2018, four senior-most Supreme Court judges holding a press conference from the residence’s front lawns of Justice Chelameswar levelling allegations of ‘Bench fixing’ i.e. allocation of cases to particular judges-against the then Chief Justice of India Dipak Misra had the country laughing at the never before scenes of the ‘Collegium’ turning on its head. Other infamous examples like allegations of sexual harassment against former CJI Ranjan Gogoi in 2019 , allegations of corruption by Andhra Pradesh CM Jagan Reddy against the present CJI, Justice N. V. Ramanain 2020 are still fresh in memory.
To avoid frivolous petitions, when a private party initiates contempt, consent from Attorney General is a precondition. Sometimes the consent is declined, Swara Bhaskar was fortunate despite ‘controversial’ tweet on Ayodhya judgment. It was said, the tweet by the former was “factual and perception of the speaker”. Activist lawyer Prashant Bhushan and cartoonist Rachita Taneja were not as lucky . This tip-toeing between giving and declining consent is marginal, often subjective, ending with extremely different consequences. Dissent, criticism and freedom of speech and expression are fundamental to a vibrant democratic. If so, then how could a tweet hurt the majesty of the courts so easily? In other countries like United States and Canada, only direct obstruction results in contempt. Contempt of Court can’t be a ‘reasonable restriction’ on freedom of speech anymore!
