Contempt Of Court: An Unconscionable Incantation

The Supreme Court of India has been bestowed with the stature of court of record by virtue of Article 129 of the Constitution. This Article confers the Apex Court with the power to punish for contempt. In ordinary parlance, contempt would mean disrespect or disdain but in the context of judiciary and legality, contemptuous acts are construed very differently. According to the Contempt of Court Act 1971, contempt has been categorised as both civil and criminal.

While civil contempt is stated to mean 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 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, scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner. To oversimplify this, contempt of court has been given such a broad definition that almost anything can be interpreted or discerned as contempt.

Vague And Overbroad 

In Pritam Lal v. High Court of M.P. AIR 1992 SC 904, the Supreme Court held that an advocate making libellous allegations against sitting Judges of High Court amounted to interference with administration of justice. In Dr. D.C. Saxena v. Hon’ble The C.J.I. 1996(5) SCC 216, the top court held that scandalising the Court or a Judge, undermining people’s confidence in administration of justice and bringing or tending to bring the Court into disrepute or disrespect tantamount to criminal contempt. Scurrilous attack on a Judge questioning his authority would amount to contempt. It is quite clear that the invocation of contempt jurisdiction is not predicated upon a well defined framework but can be effectuated at the judges’ own sweet will.

Colonial Vestige

Free speech and the right to dissent is the lifeblood of democracy. In order for a democracy to flourish and prosper, there has to be adequate space for debate, discussion and dissent. While contempt has been hailed as an indispensable facet that preserves the honour and dignity of the higher judiciary, it has also been deprecated as a tool of undue harassment and has been used as a weapon to proscribe freedom of speech and expression. The contempt law and its jurisprudence is a colonial vestige, just like plethora of other legal statutes and provisions. This originated from an undelivered judgment of J Wilmot in 1765, where the judge said that the power of contempt of court was necessary to maintain the dignity and majesty of judges and vindicate their authority.

But the extrapolation of the contempt law in India, with a thriving free speech regimen which our jurisprudence subscribes to, is manifestly misplaced.

In Romesh Thappar v. The State of Madras, the Supreme Court affirmed that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19(2) and thereby made it clear that there could not be any interference with that freedom in the name of public interest.

In another very important judgment, Indian Express Newspaper vs. Union of India, the Supreme Court eloquently established freedom of speech within the realm of Article 19 of the Constitution. The Court held that the freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved. Even though clause (2) of Article 19 was subsequently substituted under the Constitution (First Amendment) Act, 1951 by a new clause which permitted the imposition of reasonable restrictions on the freedom of speech and expression in the interests of sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality in relation to contempt of court, defamation or incitement to an offence, Parliament did not choose to include a clause enabling the imposition of reasonable restrictions in the public interest.

Language Of Statute Is Imprecise

No speech can be made liable for contempt of court, so long as it does not demonstrably constricts the court from conducting its primary task, which is dispensing justice. In absence of a minutely and descriptively demarcated jurisdiction of contempt, it is almost invariably used to throttle free speech. Words like “scandalises” and “interfere” are imprecise and can have multifarious connotations, and thus accord massive leeway to judges if they want to issue contempt. The only reasonable portion of the statute, which states criminal contempt as an act that “obstructs” the administration of justice, appears seemingly fair.

Just like many other employments, judgeship in a democracy is also an employment in which the honourable judges should be deferential towards its actual employer, which is the Constitution. Hence in a democracy there is no need for judges to vindicate their authority or display supremacy and majesty. Their authority is derived not from fear of contempt but from the public confidence, and this in turn depends on their own conduct, integrity, impartiality, and probity.

Justice - Not A Cloistered Virtue

As observed by Lord Salmon in AG vs Bbb (1981) A.C. 303, “The description contempt of court no doubt has a historical basis, but it is nevertheless misleading. Its object is not to protect the dignity of the court, but to protect the administration of justice”.

“Justice is not a cloistered virtue. It must suffer the scrutiny and outspoken comments of ordinary men," said Lord Atkin. 

In R. Vs. Commr. of Police (1968) 2 QB 150 Lord Denning observed, “Let me say at once that we will never use this jurisdiction to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself…All that we ask is that those who criticize us should remember that, from the nature of our duties, we cannot reply to their criticism. We cannot enter into public controversy. We must rely on our conduct itself to be its own vindication”. If a particular judge is criticised unduly or without any merit, the judge should develop shoulders broad enough to shrug off such criticism and not resort to a disproportionate action like contempt.

Spycatcher's Case

Once a British newspaper ran a banner headline calling the majority judges of the House of Lords who decided the Spycatcher case in Attorney General vs. Guardian Newspaper, 1987 3 AllE.R.316 “YOU FOOLS”. Senior Advocate Fali Nariman, who was present in England at that time, asked Lord Templeman, who was one of the majority judges, 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. Such words instil a sense of intellectualism that the judges must command. 

Contempt Should Not Restrict Free Speech

When judges respond by issuing contempt, they digress from the ordinary course of intellectual retaliation, which is to debate. A judge has all the authority and stature, to demolish criticism by showing mere indifference but instead they choose to show power, and while doing that, they overlook the plinth of the constitutional ethos, which breathes its oxygen from freedom of speech and expression. An ordinary man can be expected to be impulsive, temperamental and reflexive but not judges, who are expected to be the wise guiding light for the country. Contempt should be revolutionized to be only opted for against the Executive when the judgments of the court are dishonoured and not against insignificant citizens for their innocuous speech. The Supreme Court’s inclination to invoke contempt must not strike an arrow at the wheels of free speech.