What Amounts to Contempt in a Civilised Democracy Such as Ours?
Issue 9 | August 15, 2020
“Rex Non Potest Peccare”, or the king could do no wrong, laid the foundation for contempt jurisdiction centuries ago, where an imputation against the judges was considered to be one against the king. Devised to protect the sanctity of the courts, and administration of justice from scandals, the provision became a discretionary tool with the judges in absence of guidelines and India has not been an exception to it. After a series of legislative developments, contempt of court in India is currently dealt with under the Contempt of Courts Act, 1971 (hereinafter, “the Act”), apart from constitutional provisions. The Act deals with civil and criminal contempt, the former resulting from wilful disobedience of a court order, while the latter concerns itself with instances of scandalising the court or obstructing the administration of justice by any means. While the former is necessary, in absence of a cogent implementation mechanism, the court’s approach with respect to criminal contempt has from time to time raised doubts on the constitutional guarantees of free speech, transparency and fair criticism.
In the words of Beg CJ, “The judiciary cannot be immune from criticism” Re Mulgaokar, (1978) 3 SCC 399, which was opined considering the counter-majoritarian spirit of the judiciary, but subsequent developments have not only failed to adhere to this principle, instead, theyhave entangled contempt of court with contempt of judge. In a growing and civilised democracy such as ours, the court deals with an array of PILs and other matters which are bound to draw public attention and criticism. In absence of a clear interpretation of “scandalising the court” or an act which “obstructs the administration of justice”, bona fide criticism and public opinion often succumb to the contempt narrative, which is not desirable for civilised democracies. The fact that the legislation has developed along its British counterpart, it may well be noted that the British courts have, since long, in practice parted ways with contempt jurisdiction, which warrants a reference to the judgement of R v. Commissioner of Police Metropolis (No. 2) (1968) 2 QB 150, wherein the court held that no criticism, however vigorous it may be, shall amount to contempt provided it has been made in good faith. On the contrary, the Act which aimed to preserve the sanctity of the court has been used by the judges at their discretion to curb dissent.
Though the Supreme Court has iterated, a mere defamatory remark against a sitting judge is not actionable, but it does amount to contempt when it has the potency to interfere with the administration of justice, in all probability. Irrespective of the ruling, personal attacks on judges which were not related to administration of justice in any way, have been brought under the ambit of criminal contempt which not only destroys the ethos of the legislation, but raises apprehensions that administration of justice is subverting free speech and constructive criticism. This leads us to the recent contempt proceedings wherein the alleged contemnor had alleged over social media, that the highest court had played a role in destroying the democratic fabric over the last couple of years and alleged involvement of previous CJIs and targeted the CJI for his appearance without a mask, via two separate posts. Shortly thereafter the contemnor was issued a contempt notice and the proceedings followed. On examining the two posts, while the former does per se amounts to scandalising the court the latter appears more of a personal attack and warrants defamation proceedings, which was also iterated in B R Reddy AIR 1952 SC 149. However, the court’s ambiguous approach itself has paved the way for such instances, as over several years contempt of court has been interpreted in a way to include subtle remarks made against sitting judges of the court.
A prolonged state of ambiguity regarding a legislation, which possibly involves curbing free speech and transparency, must be dealt with by the utmost priority. While powers of contempt vested in the courts are necessary for preserving the sanctity of the institution, pervasive usage is not sustainable for a civilised and growing democracy. The Indian constitution boasts the status of the lengthiest and one of the most well drafted constitutions, but unparalleled powers originating from the same, as observed in Subramanian Swami v. UOI (2014) 12 SCC 344, dilutes the counter-majoritarian character of the court and threatens the very democracy it was established to protect. The preceding observation mandates a reference to the constitutional provision of seeking permission from the nation’s highest law officers, which can either be crystallised by the court or the lawmakers, to prevent not just continuous assault on free speech but to uphold the rule of natural justice, “Nemo Debet Essse Judex in Propria Causa”.