Limits of the law on contempt of court: Expanding or shrinking?

Adrita Goswami

(The writer can be reached at adrita1goswami@gmail.com.

The comments made in this article are of the writer)

The law relating to contempt of courts in India has lacked consistency and often reflects the contemporary disposition of the court. What is included or excluded from the definition of contempt has varied from time to time as well as based on circumstances. Contempt of court can generally be defined as conduct which defies the authority or dignity of a court. While the Contempt of Courts Act, 1971 (referred to as the Act) classifies contempt into civil and criminal, and expressly restricts its application, the provision relating to criminal contempt is in itself vast and vague. It refers to civil contempt as 'wilful disobedience' to a process of a court or 'wilful breach' of an undertaking thereto and criminal contempt as the publication of any matter or doing anything which does or tends to scandalize or lower the court's authority, interferes with any judicial proceeding or obstructs the administration of justice in any manner.

The law relating to contempt of courts can be seen to be a product of the archaic English concept of sovereign immunity, 'the King can do no wrong'; a concept that has been categorically refuted by Courts around the world. The King, the adjudicator of the time, enjoyed immunity and, by extension, so did the judges who were later appointed by him. An attack on the judiciary would be seen to be an attack on the honour of the king himself. This law later took firm roots in India. The Constitution of India not only empowers the Supreme Court and High Courts to punish contempt of them but also identifies contempt of court as a reasonable restriction on the freedom of speech and expression of the citizens – a restriction added through a last-minute proposal by T.T. Krishnamachari, member of the Drafting Committee, and supported and argued in favour by Dr. B.R. Ambedkar himself.

Justice Deepak Gupta, who retired from the Supreme Court earlier this year, said that dissent is an integral part of democracy and that the judiciary is not above criticism itself. The foundations of democracy, among others, lie in the freedom of the individual. One of its key components is the right to dissent. It is said that the history of progress of mankind is a history of informed dissent. Much of the world as we know today has been shaped by the dissenting views of a minority which has over a period of time formed the majoritarian view. The ambiguity of the terms used in the provision for criminal contempt can stifle the logical dissenter. The 274th Law Commission Report indicated that there was no reason to amend the law relating to contempt of courts and that the high number of related cases pending in the Supreme Court and High Courts suggested the efficacy of the Act. By reporting that the law is clearly established on the matter, it failed to identify the discrepancies in practice.

The provision on the criminal contempt ambiguously identifies the publication of any matter or doing of any act that does or tends to scandalize the court or lower its authority. It has been seen over numerous instances that criticisms do not consistently invite the similar applicability of the law. The historic 2018 press conference by some of the then senior-most Judges of the Supreme Court questioning the then Chief Justice of India's exercise of powers was not perceived as a threat to the authority of the Court. In an earlier case, the proceedings against a former High Court Judge and minister of law and justice were dropped and the Court went to say that fair criticism in good faith and in public interest does not amount to contempt. Similarly in the case of Justice Krishna Iyer, the criticism was considered as well-informed and in public interest. In contrast, the Court has taken a far stricter view in other instances, a case in point being the 2002 Arundhati Roy case. This raises the question whether the law distinguishes between contemptuous acts of those within the legal fraternity and those outside.

Another striking aspect here is the relation between the Bar and the Bench, both equally important to the justice delivery mechanism. In a 2019 judgment, the Supreme Court while highlighting the importance of the role of the Bar observed, "If lawyers have the fear of the judiciary or from elsewhere, that is not conducive to the effectiveness of judiciary itself, that would be self¬-destructive". Voices of the Bar, even when they are a critique, have to be considered in this light. In the same judgment, the Court observed that the law on contempt must be used sparingly in order to remain effective. As officers of the Court, lawyers may raise objective criticisms which ought not to be stifled as attacks on the Court itself.

In England, the House of Lords agreed to abolish 'scandalizing the judiciary' as a form of contempt of court. They agreed that the judiciary did not require a 'protection from insults' which could as easily be shrugged off, much less make out a criminal offence from it. However, they have had the practice of disregarding comments on the judiciary even before the amendment. In India, the need for a relook into this law persists. The law regarding the contempt of courts may be treated as a necessary evil to preserve the confidence of the public on the institution and to refrain from any interference to judicial proceedings – to that extent it must be streamlined and strictly construed. The respect and faith on the Indian judiciary is the product of an extensive and organic process guided by the Court's protection of the fundamental rights of the people and its disposition to protect their lives and liberties beyond the civil and political rights to their socio-economic welfare. Constructive criticism of the institution acts as the building blocks for the Indian judiciary's next generational progress rather than weaken the confidence rested on it. The role of the judiciary will be critical in influencing the future dynamics of Indian democracy.