Contempt of court can be seen as a concept and as a legal mechanism that seeks to protect judicial institutions from motivated attacks, unwarranted criticism and to punish those who lower its authority, is again in the news in India. This was triggered with the initiation of contempt proceedings by the Supreme Court of India, on its own motion, against advocate-activist Prashant Bhushan.
Who is Prashant Bhushan?
- Prashant Bhushan is a public interest lawyer in the Supreme Court of India whose work has contributed to various legislations.
- He was one of the members of the India against Corruption(IAC) movement known as Team Anna which supported Anna Hazare’s campaign for the implementation of the Jan Lokpal Bill in India.
- He helped Team Anna form the Aam Aadmi Party after a split in IAC.
- He made several allegations against the party’s leadership, its functioning and its deviation from the core ideology, values and commitments in 2015.
- He is one of the founding members of Swaraj Abhiyan and Sambhaavnaa, an Institute of Public Policy and Politics. He has also been an outspoken critic of some of the drawbacks of Judiciary.
- Thus he can be categorized as a lawyer-activist
What is this case all about?
- Bhushan had tweeted about the “role of the Supreme Court” in the “destruction” of democracy during the last 6 years, and had also mentioned the “role of the last 4 CJIs” in it.
- He had also questioned the Chief Justice of India (CJI) S.A Bobde for riding a bike without a helmet and a face mask, while “he keeps the SC in lockdown mode” in another tweet.
- The Supreme Court has initiated Suo Moto proceedings for criminal contempt against Advocate Prashant Bhushan for these tweets.
- Thus He stands accused of the Criminal contempt.
What is the observation and judgment of SC in this case?
- The Supreme Court has recently found civil rights lawyer Prashant Bhushan guilty of criminal contempt of court.
- The court has observed the tweets prima facie contempt.
Key takeaways from the judgment:
- The tweet scandalized the SC as an institution.
- It held that being the epitome of the Indian judiciary, an attack on the SC can lead to ordinary litigants and judges of High Courts across the country losing the confidence in the SC.
- It acknowledged that its contempt powers could be used only to uphold the majesty of law
- The powers cannot be used to vindicate an individual judge against whom a defamatory remark is made.
- It said that the prior consent of the Attorney General (AG) is not required to suo moto initiate the inherent contempt powers of the SC. The suo moto contempt powers are drawn from Article 129 of the Constitution.
- Otherwise, The Attorney General’s nod is a must before filing a contempt petition in the top court
- The SC has also asked Prashant Bhushan to reflect on his actions and possibly modify a statement in which he refused to apologize for his tweets.
What is meant by Suo Moto Cognizance?
- It is a Latin term which means an action taken by a government agency, court or other central authority on their apprehension.
- A Suo Moto Cognizance of a legal matter is taken up by the Supreme Court when it receives information about the violation of rights or breach of duty through any media or a third party’s notification.
- Article 32 of the Indian Constitution and Article 226 of the Indian Constitution lay down the provisions for filing Public Interest Litigation (PIL) in Supreme Court and High Courts respectively, which has given rise to the court’s power to initiate legal action on their cognizance of a matter.
- The Supreme Court is vested with original jurisdiction over any dispute arising between the states or between the centre and state under Article 131.
- The Supreme Court has the power to take up such cases straight instead of going through a lower court or reviewing a lower court’s judgment is drawn from this article.
- Suo Moto’s actions by Indian courts are a reflection of Judicial Activism.
How did the concept of contempt come into being?
- The concept of Contempt is several centuries old.
- In England, it is a common law principle that seeks to protect the judicial power of the king, initially exercised by him, and later by a panel of judges who acted in his name.
- Violation of the judges’ orders was considered an insult to the king himself.
- Gradually any kind of disobedience to judges, or obstruction of the implementation of their directives, or comments and actions that showed disrespect towards them came to be punishable.
What is Contempt?
- It is one of the most controversial elements in the Indian legal context.
- While the basic idea of a contempt law is to punish those who do not respect the orders of the courts, in the Indian context, contempt is also used to punish speech that defames the dignity of the court and interferes with the administration of justice.
Why courts need contempt powers?
- To ensure their orders are implemented.
- To sustain the independent nature of the judiciary.
- While the judiciary issues orders, they are implemented by the government or private parties.
- If the courts are unable to enforce their orders, then the rule of law itself will come to grinding halt.
- Ensures Public Trust: It insulates the institution from unfair attacks and prevents a sudden fall in the judiciary’s reputation in the public eye.
- The Supreme Court and High Court draw powers from Article 129 and 215 of the Constitution of India respectively to punish people for their respective contempt.
- To punish the contempt of its subordinate courts, High Court draw powers from Section 10 of the Contempt of Courts Act of 1971
- Under Article 19, along with elements like public order and defamation the Constitution also includes contempt of court as a reasonable restriction to the freedom of speech and expression.
Contempt of Court Act of 1971
- The Act was passed after the recommendations of H.N. Sanyal Committee on its report on contempt of courts.
- According to the Contempt of Court Act of 1971, contempt of court is of two types:
- Civil that is the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.
- Criminal, that is written or spoken words or any act that scandalizes the court or lowers its authority or prejudices or interferes with the due course of a judicial proceeding or interferes or obstructs the administration of justice.
Punishment: The Contempt of Court Act of 1971 punishes the guilty with imprisonment that may extend to six months or fine of ₹ 2,000 or both.
- It was amended in 2006 to include “truth and good faith”as a defence.
- It was added that the court may impose punishments only if the act of the other person substantially interferes, or tends to interfere with the due course of justice
- Fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary through some publication and distribution of matter does not amount to contempt of court.
Contempt laws in other countries:
- Contempt has practically become obsolete in foreign democracies already.
- Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
- American courts no longer use the law of contempt in response to comments on judges or legal matters.
- In England, the legal position has evolved.
What are the Arguments in Favour?
High Number of Contempt Cases:
- There still exist a high number of civil and criminal contempt cases pending in various High Courts and the Supreme Court.
- The high number of cases justifies the continuing relevance of the contempt of court law.
Affecting Judiciary’s Reputation:
- Amendment in the definition of contempt may reduce the overall impact of the law and lessen the respect that people have for courts and their authority and functioning.
- Also by abolishing the offence in India would leave a legislative gap.
Constitutional Source of Contempt Power:
- Supreme Court and High Courts derive their contempt powers from the Constitution. The Contempt of Court Act, 1971, Act merely mention the procedure for investigation and punishment for contempt.
- Therefore, deletion of the offence from the Act will not impact the inherent constitutional powers of the superior courts to punish anyone for its contempt.
- These powers will continue to remain, independent of the 1971 Act.
Impact on Subordinate Courts:
- The Constitution allows superior courts to punish for their contempt.
- The Contempt of Court Act also allows the subordinate courts to be punished by High Courts
- Thus, if the definition of contempt is removed, subordinate courts will suffer as there will be no remedy to address cases of their contempt.
- The Commission noted that there are several safeguards built into the Act to protect against its misuse.
- For instance, the Act contains provisions which lay down cases that do not amount to contempt and cases where contempt is not punishable.
- These provisions suggest that the courts will not prosecute all cases of contempt.
What are the Arguments against it?
Against Civil Liberties:
- A law for criminal contempt gets in conflict with India’s democratic system which recognises freedom of speech and expression as a fundamental right.
- In this manner, the judiciary draws resemblance with the executive, in using laws for a chilling effect on freedom of speech.
- R. Krishna Iyer, Former Justice of Supreme Court, famously termed the law of contempt as “having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of the public good, may unwittingly trample upon civil liberties”.
Wide Scope of Contempt:
- The definition of criminal contempt in India is extremely wide and can be easily invoked. Also, suo moto powers of the Court to initiate such proceedings only serve to complicate matters.
- Further, the Contempt of Courts Act was amended in 2006, to add truth and good faith as valid defences for contempt, but they are seldom entertained by the judiciary.
International Disuse of Contempt Doctrine:
- Already, contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law. For example:
- England abolished the offence of “scandalising the court” in 2013.
- Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
- American courts also no longer use the law of contempt in response to comments on judges or legal matters.
What is the way forward?
- Along with the test for contempt needs to be evaluated, There shall be a revisit the need for a law on criminal contempt
- There is a need to check whether the remarks in question actually obstruct the Court from functioning and to proceed further
- To prevent any and all criticism of an institution, Contempt Power should not be allowed to be used as a means
- Our Constitution recognises freedom of speech and expression as a fundamental right.
- A law for criminal contempt is completely asynchronous with this.
- An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo moto powers, can be dangerous, for it can amount to the Court nodding clearly that it will not bear any kind of critical commentary about the institution at all, regardless of how evidently problematic, its actions may be.
- The judiciary could find itself at an uncanny parallel with the executive, in using laws for chilling effect in this manner.
Practice question for MAINS
1) A law for criminal contempt is completely asynchronous with our constitution. Comment(200 Words)