Let there be fresh look at contempt laws

Let there be a fresh look at contempt law

(The article was published in A review of Indian journalism critique)

By Deepak Parvatiyar

Mae West was an American actress, playwright and screenwriter known for her bawdy double entrendres.  The author and star of “Sex”, a big hit up on Broadway, she was booked for obscenity and hustled away into an interim cell before being packed off in the morning to 10 days at the Women’s Workhouse on Welfare Island. “Miss West,”   the presiding judge at Jefferson Market Courthouse had inquired at a late hour on February 7, 1927, “are you trying to show contempt for this court?”

“On the contrary, Your Honor,” Mae sweetly responded. “I was doin’ my best to conceal it.”[i] 

It is no exaggeration to say that contempt of court is feared largely because of its varied interpretations by the courts. No wonder that Mae’s statement nine decades ago still sounds very contemporary.

In India too, it’s no different. The allegations of corruption against some Supreme Court judges by eminent lawyer Prashant Bhushan that invited contempt proceedings against him in the apex court is a case in point. Prashant had made such allegations in an interview in September 2009 and the managing editor of the magazine, Tehelka, that carried the interview too is facing charges for publishing this interview. The case took a curious turn when former Union Law Minister Shanti Bhushan - Prashant's father - attempted to implead himself in the case by repeating the same allegations. The senior Bhushan had told the Court that he would rather “face imprisonment than apologise” for levelling corruption charges against the higher echelons of the Indian judiciary. The Supreme Court, though, had already brushed aside his application to be impleaded as a party in the contempt proceedings pending against Prashant Bhushan.

Noted jurist Fali S. Nariman, in his book India’s legal system: Can it be saved? ( Penguin 2006) pointed out that while criticisms and complaints are sometimes voiced by journalists and by the electronic media, “there would be many more such suggestions, but for the fear of ‘contempt’.” According to Nariman while civil contempt “is a necessary power to ensure compliance with orders…in the jurisdiction in what is known as ‘criminal contempt’—contempt for utterances and publications that are said to undermine the judiciary and judicial administration (‘scandalising the Court’) – our courts must proceed with extreme caution.”

The contempt jurisdiction has largely remained a contentious issue universally. While many consider the contempt of courts laws as an attack on the freedom of expression, the contempt jurisdiction is expected to uphold the dignity of law courts. However, although scandalising the court is an offence in many Common Law jurisdictions, there is no simple, universally accepted definition of the offence.

Take the example of the United States of America. Here the power of the courts to punish for contempt by publication is extremely limited and a publication cannot be punished for contempt unless there is a “clear and present danger” to the administration of justice.[ii] The test requires that “the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” [iii] In practice, this has allowed the media to report on pending judicial proceedings with little or no restriction and provide extensive (and often controversial) coverage of high profile cases.[iv]

The American experience appears to contradict the speculation by the

European Court that long-term exposure to the “spectacle of pseudo-trials in

the news media” will result in a rejection of the courts as “the proper forum for

the settlement of legal disputes.” The American public has now been subject

to such exposure for decades, but there is no evidence to suggest that people

are rejecting the courts as the proper forum for settling legal disputes. In fact,

Americans continue to be perhaps the most litigious people in the world.[v]

Yet, the major international and regional human rights instruments on civil and political rights — the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), the American Convention on Human Rights (ACHR), and the African Charter on Human and People’s Rights (ACHPR) — all protect both freedom of expression and the administration of justice.

In India, the world’s largest democracy,  the scandalising offence though, is not legally subservient to any rights of freedom of speech or expression. Article 19(1)(a) of the Indian Constitution establishes the basic human right to freedom of speech and expression but  Article 19(2) permits reasonable restrictions to be imposed by statute for the purposes of various matters including ‘Contempt of Court’.  Articles 129 and 215 give the power of Contempt of Court to the higher judiciary, and this power limits the freedom granted by Article 19(1)(a).

Legally speaking, it is therefore inaccurate to suggest that the right to freedom of speech overrules contempt of court laws in our country.

The 200^th report of the Law Commission, Trial by Media: Free Speech Vs. Fair Trial Under Criminal Procedure (Amendments to the Contempt of Court Act, 1971) , has dwelt at length on the issue of the Freedom of Expression and the limitations of the media: “Our Constitution does not separately refer to the freedom of the press or of the electronic media in Part III but these rights are treated by the law as part of the ‘Freedom of speech and expression’ guaranteed by Article 19 (1)(a) of the Constitution of India. The guarantee is subject to ‘reasonable restrictions’ which can be made by legislation to the extent permitted by Article 19(2).”

These provisions  offer a scope for a larger debate on the issue of the contempt jurisdiction – should the people and their Right to the freedom of expression be above the contempt jurisdiction. “In my opinion once it is accepted that India is a democracy, and that in a democracy the people are supreme, the reconciliation can only be affected by treating the right of the citizens of free speech and

expression under Article 19(1)(a) to be primary, and the power of contempt to be subordinate,” retired Supreme Court Judge and the present chairman of the Press Council of India, Justice Markandey Katju, had argued in a paper“Contempt of Court: The Need for a Fresh Look”.  He had stated: “…the people are free, and have the right to criticize Judges, but they should not go to the extent of making the functioning of the judiciary impossible or extremely difficult. Thus in my opinion the test to determine whether an act amounts to Contempt of Court or not is this : does it make the functioning of the Judges impossible or extremely difficult? If it does not, then it does not amount to Contempt of Court, even if it is harsh criticism.”

Contempt laws are envisaged to be the protector of the seat of justice, more than the person (judge) sitting on that seat. But what lends ambiguity to these laws is that there is a very thin line of demarcation between the criticism of a judgment and criticism of the judge who pronounced the judgment. 

In a speech delivered on 1.12.2001 in Jaipur on the topic “The Law of Contempt – is it being stretched too far?”  Fali Nariman, had said that the offence of `scandalizing the Court’ is a mercurial jurisdiction in which there are no rules and no constraints. 

Similarly, Daniel Snyder & Dr.Jayaprakash Narayan in a report on the Offence of Scandalizing the Court in India[vi], had stated, “the scandalising offence is controversial, because it potentially suppresses public criticism of the Judiciary or judicial system.”  Illustrating the point, the report stated: “For instance, suggestions that a judge has been corrupt, or swayed by political considerations, are potentially punishable as contempt of court. Even more generalized criticism, such as suggesting that the Judiciary has a general predisposition to ignore certain views, is theoretically punishable.”

It has been the interpretation of the Contempt law by the courts from time to time that continues to generate heated debate on whether ‘contempt of court’ is blocking justice?

In the Indian case of EMS Namboodiripad v. TN Nambiar,96 the

Chief Minister of Kerala made a public statement accusing judges of class

bias:

Marx and Engels considered the judiciary an instrument of oppression and even

today… it continues so…. Judges are guided and dominated by class hatred, class

interests and class prejudices and where the evidence is balanced between a well

dressed pot-bellied man and a poor ill-dressed and illiterate person the Judge

instinctively favours the former.[vii]

The Supreme Court upheld his conviction for contempt of court, reasoning

that “the likely effects of his words must be seen and they have clearly the

effect of lowering the prestige of Judges and Courts in the eyes of the

people.”[viii]

By contrast, in the Australian case of Attorney-General for NSW v. Mundey,

Hope J. suggested that an imputation of bias is not necessarily contempt of

court:

It does not necessarily amount to a contempt of court to claim that a court or judge had been influenced, or too much influenced whether consciously or unconsciously, by some particular consideration in respect of a matter which has been determined. Such criticism is frequently made in academic journals and books and the right cannot be limited to academics….[ix]

Given the controversies it has generated over the years, the contempt law in India itself has been amended a number of times to ensure that the court doesn’t act with any bias and that “truth” prevails.

The first Indian stature on the law of contempt i.e., the Contempt of Courts Act was passed in 1926. It was enacted to define and limit the powers of certain courts in punishing contempt of courts. When the Contempt of Courts Act, 1926 (XII of 1926) was in existence in British India, various Indian States also had their corresponding enactment. State enactments of the Indian States and the Contempt of Courts Act, 1926 were replaced by the Contempt of Courts Act, 1952 (32 of 1952). Thereafter,  a Bill was sought to be introduced in the Lok Sabha in April, 1960  to consolidate and amend the law relating to Contempt of Courts. On an examination of the Bill, government appeared to have felt that the law relating to Contempt of Courts is uncertain, undefined and unsatisfactory and that in the light of the constitutional changes which have taken place in the country, it would be advisable to have the entire law on the subject scrutinized by a Special Committee set up for the purpose. In pursuance to that decision a Committee was set up on 29th July, 1961 and it submitted its report on 28th February,1963 to define and limit the powers of certain courts in punishing contempt of courts and to regulate their procedure in relation thereto. Joint Select Committee of Parliament on Contempt of Courts went in detail and a new Bill, The Contempt of Courts Bill, 1968 was prepared by the Joint Select Committee  and The Contempt of Courts Act, 1971 (70 of 1971) was passed by the Parliament in December 1971 and it came into force w.e.f. 24th December, 1971.

The law was amended in 1976 and once again it was amended in 2006 with a new section which provided that Truth should be the new defence in contempt of court proceedings if it is in public interest and is bona fide.

The 2006 amendment has been largely lauded as a right step forward, but the issue requires a closer scrutiny. While it is still too early to assess the impact of the amendment to the contempt law, it is for the judiciary itself to interpret contempt more liberally.

To sum up, it is apt to quote Justice Katju from his paper on “Contempt of Court: The Need for a Fresh Look”: “As a Judge in three High Courts (Allahabad, Madras and Delhi) I would often tell the lawyers in open Court that they could criticize me as much as they liked, inside the Court or outside it, to their heart’s content, but I would not initiate proceedings for Contempt of Court. Either the criticism was correct, in which case I deserved it, or it was false in which case I would ignore it…. I would often say in Court “Contempt power is a `Brahmastra’ to be used only on a `patra’ (deserving person)…”

Do others in the judiciary endorse his views?

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[i] http://thevillager.com/villager_39/9thstdrama.html

[ii] Bridges v. California, 314 US 252 (1941); Pennekamp v. Florida, 328 US 331 (1946); Craig

v. Harney 331 US 367 (1946); Wood v. Georgia 370 US 375 (1962).

[iii] Bridges, Ibid., p. 263.

[iv] M. Chesterman, ‘O.J. and the Dingo: How Media Publicity Relating to Criminal Cases Tried

by Jury is Dealt with in Australia and America’ (1997) XLV AJCL 109.

[v] Background Paper on Freedom of Expression and Contempt of Court for the International Seminar on

Promoting Freedom of Expression With the Three Specialised International Mandates Hilton Hotel London, United Kingdom 29-30 November 2000

[vi] This report was prepared as a submission before  the Standing Committee On Personnel, Public Grievances, Law And Justice, the Standing Committee having invited suggestions on the Contempt of Courts (Amendment) Bill 2004

[vii] AIR 1970 SC, p. 215-16..

[viii] Ibid., p. 2024.

[ix] [1972] 2 NSWLR 887, P. 910.