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(Aryan Bhat is a second year student of National Law University, Delhi) INTRODUCTION On July 21, the Supreme Court found itself in yet another controversy after it instituted suo moto contempt of court proceedings against distinguished lawyer Prashant Bhushan for his tweets questioning the current Chief Justice of India for not wearing masks or gloves and not following the prescribed social distancing norms while riding a bike in Nagpur. He further tweeted that the past four Chief Justices’ role in destroying the democratic ethos of the country would be well-noted by historians in future. The contempt notice became quite contentious as prominent citizens, including retired Supreme Court judges, issued a public statement urging the Court to reconsider the contempt proceedings against Bhushan as the notice reflected an attempt to “stifle criticism” from every stakeholder in Indian democratic and constitutional polity. On 14 August 2020, the Court found Prashant Bhushan guilty of contempt of court. The episode rekindled the debate on the controversial contempt of court law in India. Similar instances have also been witnessed where the Supreme Court and High Courts have initiated contempt proceedings for remarks on the judiciary which were condemned for being an attack on the freedom of speech.
In this article, the author argues that the law of contempt of court in India is an unreasonable restriction on the fundamental right of the freedom of speech and expression as enshrined in the Constitution and suffers from judicial over-breadth as the wall separating legitimate speech from illegitimate is vague and lacks any clear standard. Additionally, the exercise of its contempt of court powers by Indian courts has been a matter of judicial subjectivity and arbitrariness. The author also suggests possible reforms to the law so as to harmonise it with our constitutional values. OBSCURITY OF THE PRECEDENTS The Contempt of Court in India is a civil as well as a criminal offence. The Contempt of Court Act, 1971 (‘Act’) defines civil contempt as the wilful disobedience of any judgement, decree, order, direction or any other process of the court. This offence is highly necessary as it equips the courts to ensure compliance of the directives it passes. Criminal contempt, on the other hand has long been a contentious one. Section 2(c) of the Act defines criminal contempt as any publication which, “scandalises or tends to scandalise, lowers or tends to lower the authority of the court, prejudices or interferes or tends to interfere with the judicial proceedings or obstructs or tends to obstruct the administration of justice in any other manner.” The word “or” after every sub-clause can be interpreted to mean that any publication that is likely to scandalise the court is an offence in itself, regardless of whether it necessarily causes any maladministration of justice. Judiciary has consistently favored this interpretation in a string of judgements.[i] This is problematic as the wording of Section 2(c)(1) is quite vague which renders the exercise of the power of criminal contempt under the section arbitrary since it is influenced more by the predilections and opinions of the individual judge rather than any objective standard established by law. In Arundhati Roy, In Re the respondent, a renowned author expressed resentment over the Supreme Court’s judgement in the Narmada Bachao Andolan (‘NBA’) case , where the Court’s order to raise the height of the dam could have caused displacement of the local population. Along with the NBA, she held a “dharna” outside the Supreme Court against which contempt petition was filed by an advocate and a notice was issued to the respondents by the Court. In her affidavit, the respondent expressed disappointment over the notice, writing that the impugned notice was an attempt by Court to stifle criticism and dissent and to harass and intimidate those who disagree with it. The Court, initiated suo moto proceedings against her in this regard and found her statements contemptuous as she intended to malign the institution of judiciary by weakening the public confidence in it. It sounds quite counterintuitive that few lines in an affidavit, though strongly worded, could undermine the confidence of the wider public in the judiciary. Critics assailed the Court for not reading Roy’s affidavit in its entirety which would have made it clear that the same was not meant to lower the reputation of the judiciary but only to criticise the Court’s functioning.[ii] Another infamous judgement in this regard was delivered by the Supreme Court in EMS Namboodiripad v T.N Nambiar, where the appellant was the Chief Minister of Kerala. In a press conference, he quoted Marx and Engels to describe the judiciary as an instrument of oppression. He accused the judges of being guided by class hatred, class interests and class prejudice. The Supreme Court, upheld his conviction by the Kerala HC on grounds that his statements were calculated to attack the judges and raise a general disaffection and distrust of judicial decisions in minds of people. The Court further held that the law of criminal contempt applies not only to publications which directly interfere with the administration of justice but also those which may have a tendency to produce the same result. In S.Mulgaokar,In Re, the respondent was an editor who, in an article asserted that the Supreme Court was “packed” with “submissive and pliant” judges by former Prime Minister, Indira Gandhi. Interestingly, the Court, dropped the proceedings against the respondent. It held that the criticism in the publication was fair and legitimate. This was because to criticise the judiciary, howsoever fiercely is a necessary right and that courts should limit their contempt jurisdiction only in cases where a grave and unfounded attack is made against the judiciary and that it is calculated to obstruct the judicial process. It is pertinent to observe that while the Supreme Court did not consider unsubstantiated allegations of executive dominance over the judiciary as contemptuous, similar allegations of class bias and stifling dissent were held guilty of contempt of court. This clearly establishes how the law governing criminal contempt is inherently vague and manifestly arbitrary as per the test laid down in Shayara Bano v Union of India. The test laid down that a piece of legislation can be “manifestly arbitrary” if it is capricious, whimsical and not guided by sound reasoning .Section 2(c)(1) of the Act, as discussed above, is a sufficient ground to form an offence of criminal contempt of court, though the word “scandalise” is of a wide import and grants excessive discretion to the judiciary to determine what content could be said to have scandalised the reputation of judiciary. The same argument also applies to the defence of “fair and legitimate” criticism under the Act as what speech shall amount be considered contemptuous while the one that shall be a fair and legitimate criticism under article 19(1)(a) can be said to be determined more by the subjective interpretation of the sitting judges than any well-established standard laid by law as can be established by the aforementioned case laws. While contempt of court is indeed a restriction imposed on freedom of speech and expression under Article 19(2), the same shall also meet the test of reasonability. Reasonability of restrictions, is inextricably linked with the principle of proportionality. In Justice K.S. Puttaswmay v Union of India, it was observed that proportionality is an essential facet against arbitrary state action because it ensures that the nature and extent of the restriction of right is not disproportionate to the purpose of law. Inability of a law to adhere to the test of reasonability or proportionality would make the law suffer from judicial overbreadth i.e the law is worded very broadly such that it also includes the speech in its scope that is not only ultra vires to the purpose sought to be achieved but is also otherwise considered legitimate. Though, the Court, in S.Mulgaokar, In Re, did observe that a balance needs to be struck between the freedom of speech and criminal contempt of court but the Court did not prescribe a test for the same. A glaring example of such an over-breadth was when the Meghalaya HC last year imposed a hefty fine upon the editor of a local daily newspaper for having committed the offence of criminal contempt of court because the editor had published about a recent court order that demanded better retirement facilities for its judges. The judgement was widely denounced for undermining the freedom of press and was subsequently stayed by the Supreme Court. SUGGESTIONS FOR REFORM The law of criminal contempt certainly is in dire need of reform. The law of Contempt of Court is an archaic provision which traces its genesis to the era of monarchy when courts functioned as representatives of the monarch. Any criticism of the court was hence, considered to be a veiled criticism of the monarch.[iii] In a constitutional democracy however, freedom of speech and expression is a cardinal principle and public institutions cannot escape scrutiny simply on grounds to preserve their reputation and dignity. In United Kingdom, the offence of criminal contempt of court was decriminalised in 2013 upon recommendation of the Law Commission. The Commission, opined inter alia that prosecution for this offence is counterproductive as enforced silence is likely to create more ill-will than original publication as the conviction might be seen as an attempt at cover-up. However, in India, abolishing the offence by repealing section 2(c)(1) would not be the solution as the power of contempt of court is granted to Supreme Court and High Courts under articles 129 and 215 of the Constitution. Hence, the contempt powers exist independent of the impugned Act. Besides it has been suggested that offence of criminal contempt, instead of complete abolition shall rather be restricted to exceptional circumstances where publication poses a very proximate and substantial risk of obstruction to the judicial process or misadministration of justice.[iv] Cue can be taken from the decision of the United States Supreme Court in Bridges v California, where the court applied the “clear and present danger” test to overrule the contempt conviction of the appellants. The test prescribed that only a publication that is likely to interfere with the impartial administration of justice with a high degree of proximity and certainty shall be treated contemptuous. In Canada, the Ontario Court of Appeal, in R v Kopyto,[v]restricted the scope of criminal contempt to a narrow set of cases where a serious, real and substantive risk is posed by the publication to interfere with the administration of justice in a sub-judice matter. Setting of a similar standard by Supreme Court for criminal contempt of court would also be consistent with India’s free speech jurisprudence as has been laid down in Arup Bhuyan and Shreya Singhal, where the Court established the necessity of a proximate causal link between the speech and the undesirable result it is likely to produce, as a condition for a valid restriction upon one’s free speech. [i]Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution, Oxford University Press(2016). [ii]SP Sathe, NBA Contempt of Court Case, Economic and Political Weekly Vol 36, No,46/47. [iii] Rahul Donde, Uses and Abuses of the Potent Power of Contempt, Economic and Political Weekly, Vol.42,No.39. [iv]Gautam Bhatia, Offend, Shock or Disturb: Free Speech under the Indian Constitution, Oxford University Press(2016). [v]1987), 19 O.A.C. 390 (CA).
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