Contempt of a fundamental right?


The law of contempt of court is often seen as coming in conflict with the right to freedom of speech and expression as guaranteed by our Constitution. How can these two be reconciled? Which should take precedence? Kamayani Bali Mahabal argues that there is a strong case to scrap the contempt laws from the statute books.

The law of contempt is an excellent example of dichotomy between rationality and mythology surrounding the judiciary. The concept originated in English medieval monarchies as a way to preserve the unchallengeable authority of the king, who was believed to be the fountainhead of justice. The authority of God as the last word was believed to be manifested in him, the human sovereign. Therefore, in this new democratic era, this protection of the judiciary against criticism as well as the procedure for its trial appears problematic.

Freedom of thought and expression have been given the pride of place in our constitutional scheme, as in all democratic societies. Public criticism is essential to the working of a democracy, and this includes criticism of every institution and organ of the state. This freedom certainly takes within it the right to comment upon and criticise judgments.

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case (Attorney General vs. Guardian newspaper, 1987 3 AllE.R.316) “YOU FOOLS”. Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority, why the judges did not take contempt action. Lord Templeman smiled, and said that judges in England took no notice of personal insults. Although he did not regard himself as a fool, others were entitled to their opinion!

The Indian scenario
Now, coming to the law of contempt in India, we find it is uncertain. Nariman described it in a speech as ‘Dog’s Law’. Justice Krishna Iyer captured the problems inherent in the contempt law, in a 1974 judgment, in these colourful phrases: “A vague and wandering jurisdiction with uncertain frontiers, a sensitive and suspect power to punish vested in the prosecutor, a law which makes it a crime to publish regardless of truth and public good and permits a process of brevimanu conviction, may unwittingly trench upon civil liberties…”

The history
The view about the contempt power was first stated in England by Wilmot J. in 1765 in a judgment that was, in fact, never delivered ( R. vs. Almon). Wilmot J. observed that this power in the courts was for vindicating their authority, and it was coeval with their foundation and institution, and was a necessary incident to a court of justice. Successive courts not only in England but also in other countries thereafter followed the above dictum.

The Contempt of Courts Act, 1926 was the first statutory legislation that granted powers to High Courts of Judicature established by Letters Patent to punish contempt of subordinate courts. The Act, however, failed to provide for contempt of courts subordinate to Chief Courts and Judicial Commissioner’s Court, as also for an extra-territorial jurisdiction of High Courts and was therefore repealed by the Contempt of Courts Act, 1952, with the institution of which all the respective Indian states Acts also stood rescinded.

During the time of the framing of the Constitution, it was decided that “contempt of court” be included as an express restriction upon the freedom of speech and expression, as part of Article 19(2) of the original Constitution. When this proposal was first made, it elicited a fierce debate. This is because the term “contempt of court” in itself carries three possible meanings.

The Contempt of Courts Act, 1952, did not confer any new powers on the courts. It, however, made two significant digressions from the prior Act of 1926 in that, one, it redefined ‘High Court’ to include the Courts of Judicial Commissioner, and two, provided for the aforesaid to try for contempt subordinate to them as well. Surprisingly though, the term ‘contempt’ had not been defined in any of the Acts yet and there was a still lot of ambiguity present around the law of contempt. Also, it was realised that the said law needed to be dealt with in light of two fundamental rights granted in the Constitution, namely, freedom of speech and expression and right to personal liberty. Thus, there was set up a committee in 1961 under the chairmanship of late H.N. Sanyal, the recommendations of which took the form of the Contempt of Courts Act, 1971, and overhauled the entire law relating to contempt in the country.

The Indian Contempt Act of 1971 has evolved over time to incorporate amendments that delineated what does not constitute contempt, and framed rules to regulate contempt proceedings, yet inconsistencies remain. In 2006, an important amendment to the 1971 Act provided for truth as a valid defence in contempt proceedings, especially because the law was considered a threat to the fundamental rights to personal liberty and freedom of expression. Not just the doctrine of truth, but public interest must be the cornerstones on which the law must be based.

Types of contempt
Contempt of Court can be a civil as well as a criminal offence under the Contempt of Court Act, 1971. Section 2(a) of the Act, states that contempt means civil or criminal contempt. Section 2(b) of the Act defines civil contempt. Civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court. Criminal contempt has been defined in Section 2(c). It means publication of may matter or may other act which lowers or tends to lower the authority of any court or interferes or tends to interfere in the judicial proceedings or administration of justice.

Section 12 of the Contempt of Court, 1971, provides the punishment for contempt. It states that the offender may be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both. However, the accused maybe discharged or the punishment awarded may be remitted on apology being made to the satisfaction of the court.

What is the aim of this law?
During the time of the framing of the Constitution, it was decided that “contempt of court” be included as an express restriction upon the freedom of speech and expression, as part of Article 19(2) of the original Constitution. When this proposal was first made, it elicited a fierce debate. This is because the term “contempt of court” in itself carries three possible meanings. One is active and open disobedience of court orders, failure to appear when summoned and so on. The second type of contempt is to say or do things that might prejudice a fair trial, or negatively affect justice (for instance, sensationalised media reporting of an ongoing trial). The third is our familiar concept of “scandalising the court”.

The framers of the Constitution strongly disagreed with each other about which versions of contempt were covered by Article 19(2) of the Constitution. Many of them voiced concern that if “scandalising the court” was to be treated as an offence, then it would unduly stifle the freedom of speech and expression. For instance, R.K. Sidhva observed that “judges have not got two horns; they are also human beings. They are liable to commit mistakes”. Ultimately, the framers decided to leave the matter ambiguous, simply by adopting the omnibus phrase “contempt of court”.

In one of the judgements (In re: Arundhati Roy, 2002), the Supreme Court (SC) had reasoned that contempt of court is the only weapon to restore public confidence in the independence of the judiciary and maintain the rule of law. According to the SC, “… the Judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of Judiciary.”

The conflict
A major criticism of the contempt law is that it can potentially suppress public criticism and hence undermine freedom of speech and expression. The contempt of court enters the Indian Constitution under Article 19(2) as a reasonable restriction to the right of freedom of speech and expression granted under Article 19(1). It is clear that the Constitution does not provide supremacy to freedom of expression over contempt of court.

The Indian contempt law has inherited the concept of scandalising of court from the English law during the colonial period. An argument can also be made against embracing this colonial legacy. On the other hand, in 2013, the United Kingdom abolished scandalising the court offence after recommendation of the Law Commission. Even prior to 2013, this law was rarely used in Britain. In fact, for more than six decades there was no successful conviction in UK under this law.

Even the amended law, as it stands today, is highly unsatisfactory. Section 13 (b) by using of the expression “the court may” confers a discretion on the court to permit or not to permit the defence of justification. And this is so even if the court is satisfied that it is in public interest and that the request for invoking the said defence is bona fide.

In Duda’s case AIR 1988 SC 1208, a Union Cabinet minister said that the Supreme Court sympathised with zamindars and bank magnates. He further said, “FERA violators, bride burners, and a whole horde of reactionaries have found their haven in the Supreme Court”, and that Supreme Court judges have “unconcealed sympathy for the haves”. No action was taken against him. However, in an earlier decision, in the case of Namboodiripad (former CM of Kerala), who accused Supreme Court judges of being biased in favour of the rich, (an allegation similar to that of the Union minister in Duda’s case) the court convicted Namboodiripad for contempt (AIR 1970 SC 2015).

Arundhati Roy, the writer, was interested in the result of a litigation pending before the Supreme Court. It was alleged that at a dharna organised in front of the Supreme Court, she had raised improper slogans against the Court. When issued a show cause notice, she denied having raised such slogans. She further stated that the SC could not spare a sitting Judge to hold inquiry into the Tehelka scandal. However, when it came to an absurd, despicable and entirely unsubstantiated petition, it displayed a disturbing willingness to issue notice.

Where the offence of defamation tends to be used against the press most often by public authorities, and increasingly, powerful private players, this tool of contempt of court is used often by courts. Two recent examples, both coincidentally of judges of the Madras High Court, are of Justice Markandeya Katju and Justice C.S. Karnan, who were hauled up for contempt of court.

The right and indeed the desirability to comment upon and criticise judgments is too well established and too sacrosanct to be allowed to be stifled or interfered with. Many judgments leave one totally aghast. To say that such judgments and orders should not be criticised and must be complied with – sometimes under the threat of contempt – is a death blow to the rule of law. Fair and robust criticism should be considered necessary, healthy and welcome. Much worse and more dangerous than any other form of arbitrariness is judicial arbitrariness.

How relevant is the contempt law today in a free country where criticism of the judiciary is inevitable? Judges have vast powers. People cannot and will not remain silent about the exercise of such powers. Just as decisions of other branches incur criticism, judicial decisions should also be subject to the same.

We have two provisions in our Constitution, Article 19(1)(a) which gives citizens freedom of speech, and Articles 19 and 215 which give the Supreme Court and High Court the power of contempt. How are these provisions to be reconciled? In my opinion, since Article 19(1)(a) is the right of the people who are supreme in a democracy, while Articles 129 and 215 are powers of judges, who are servants of the people, the reconciliation can only be done by holding that freedom of speech is primary, while the contempt power is only secondary.

There is a strong case to scrap the contempt laws from the statute books.

Kamayani Bali Mahabal

Advocate Kamayani Bali Mahabal is an expert in gender, health and human rights issues.