UPSC CSE Mains Syllabus: GS-2- Structure, organization and functioning of the Executive and the Judiciary Ministries and Departments of the Government; pressure groups and formal/informal associations and their role in the Polity.
- The initiation of contempt proceedings by the Supreme Court, suo motu, against lawyer-activist Prashant Bhushan for his tweets is worrisome.
- Bhushan’s comments on Twitter, the court has said in the notice issued to him on Wednesday, “have brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution … and the office of the Chief Justice of India in particular”.
An anachronism in a democracy:
- Contempt of court is more and more an anachronism in a democracy — it has been circumscribed and rejected in the US and UK.
- In India, it remains a sweeping and vaguely worded offence which is at odds with the Supreme Court’s own record on expanding the scope and ambit of the fundamental right to freedom of speech.
- And yet while the courts have made some effort to narrow the remit of sedition, they have not insisted on a similarly demonstrable link with obstruction of justice of the contemptuous act or speech.
In India, the Contempt of Court Act of 1971 recognizes two types of contempt:
- Civil contempt
- Criminal contempt.
Civil contempt is defined as willful disobedience of any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given by a court.
Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or
(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or
(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.
- There is general consensus over this part of the law.
- The controversy arises in understanding criminal contempt.
- Section 2(c)(i) makes publication in any form that ‘‘scandalizes the court” a criminal offence.
- To elaborate, any “scurrilous abuse” directed at a court or judges which tends to lower the authority of the courtis treated as a criminal offense under the Act.
In one of the judgements (In re: Arundhati Roy, 2002), the 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.”
There can be no doubt that the Judiciary as a public institution needs to be respected in a civilized society.
However a pertinent question remains if public institution should be propped up through laws or command respect through their conduct.
Contempt of Court and freedom of expression
- A major criticism of the Contemptlaw is that it can potentially suppress public criticism and hence undermines freedom of speech and expression.
- The contemptof 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 Constitution does not provide supremacy to freedom of expression over contemptof court.
A case for freedom of speech:
- The contemptof court provision most often serves to keep the judiciary outside the ambit of public opinion.
- The judiciary’s view that such insularity is necessary to ensure its credibilityas an impartial arbiter is understandable.
- But in times when the courts are playing an active role in shaping public policy— and also because the public has a general interest in the administration of justice — there are bound to be demands for making judges more accountable. These demands have acquired weight with charges of corruption against individual judges in the last five years or so.
- In 2013, in another poll by Transparency International, 45 per cent of those surveyed described the judiciary as corrupt.
- That year, Justice P. Sathasivam, before taking over as the Supreme Court Chief Justice, regretted that “the judiciary is not untouched by corruption”.
- The Indian contemptlaw has inherited the concept of scandalising of court from the English law during colonial period.
- An argument can also be made against embracing this colonial legacy.
- On the other hand, in 2013, the United Kingdom abolished scandalizing 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.
- At least the scope of controversial section of “scandalizing the court” can be narrowed down if not completely abolished. The Indian Judiciary needs to come out of a siege mentality of perennial threat if it is to be perceived as protector of truth.
Five years ago, in Shreya Singhal, the apex court expanded the contours of freedom of speech and Article 19. The Supreme Court’s contempt case against Bhushan shrinks that space — and itself.
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