Last year, when the Supreme Court was hearing a controversial case about judicial appointments, a senior advocate exhorted the judges to step outside the court in a burqa to know what people were saying about them behind their backs. This was not an entirely outlandish suggestion. If you speak to journalists and editors today, most of them will tell you that their reporting on the judiciary is constrained by the fear of being pulled up for “contempt of court”.
Like many other artifacts of the Indian legal system, “contempt of court” has its origins in early-modern England. At that time, courts were considered to be more a wing of the state, than as a check upon executive power. It was widely believed that, much like the king and the fledgling parliament, the good name of the courts had to be protected from too-severe criticism.
Consequently, the crime of “scandalizing the court” made its appearance. This evolved alongside the offences of sedition and criminal defamation, all of which were aimed at protecting established power from public criticism.
During colonial rule, the British imported the concept into India. The offence of scandalizing the court, at that time, was defined in common law as “any act done or writing published calculated to bring the court into contempt, or to lower its authority”. As can be seen, this framing is rather broad, and leaves much to the discretion of individual judges.
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. It is quite uncontroversial that the courts need to be clothed with the power to punish infractions of this sort.
The second type of contempt is to say or do things that might prejudice a fair trial, or negatively affect justice (for instance, sensationalized media reporting of an ongoing trial).
The third is our familiar concept of “scandalizing 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 “scandalizing the court” was to be treated as an offence, then it would unduly stifle the freedom of speech and expression.
For example, 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”.
Very soon, however, the courts got into the act, and made it clear that contempt included the offence of scandalizing.
Soon after Independence, the Supreme Court held that “if an impression is created in the minds of the public that judges in the highest court in the land act on extraneous considerations in deciding cases, the confidence of the whole community in the administration of justice is bound to be undermined and no greater mischief than that can possibly be imagined”.
In short, the Supreme Court drew a connection between a speech that accused the court of improper motivations, a consequent lowering of the authority and prestige of the courts and, ultimately, disobedience of its orders.
This tenuous link was stretched to near-breaking point in the famous case of E.M.S. Namboodiripad, where the communist leader from Kerala made a public speech invoking Marx and Engels in support of the proposition that the judiciary was an engine of class oppression.
Despite Namboodiripad emphasizing that at no point had he attributed motives to any individual judge, or called for disobedience of court orders, he was convicted for contempt of court.
The Supreme Court upheld the conviction, again holding that “an attack upon judges... which is calculated to raise in the minds of the people a general dissatisfaction with, and distrust of all judicial decisions... weakens the authority of law and law courts”.
The generality of “general dissatisfaction” is perhaps a generally dissatisfactory approach to the freedom of speech and expression.
Taking its cue from the court, Parliament enacted the Contempt of Courts Act in 1971, making it an offence to scandalize, or tend to scandalize, or lower, or tend to lower, the authority of any court.
In the succeeding years, the court handed down a series of judgements that effectively equated scandalizing with the threat of the breakdown of justice, through the assumption that if people were to believe the scandalous statements, they would be encouraged to disobey court orders.
This approach perhaps reached its peak in 2002, with the conviction of Arundhati Roy for contempt of court. The controversial writer had accused the Supreme Court of “stifling dissent”. With exquisite irony, she was booked for scandalizing the court.
After noting that the image of the court could not be tarnished at any cost, the bench held that it was not permitted “to cast an injury to the public by creating an impression in the mind of the people of this backward country regarding the integrity, ability and fairness of the institution of judiciary”.
It went on to observe that one had to keep in mind “the ground realities and prevalent socio-economic system in India, the vast majority of whose people are poor, ignorant, uneducated, easily liable to be misled. But who have the tremendous faith in the dispensers of justice”.
Because of this, the court held, there was no need to establish that a particular speech or statement had actually contributed to a breakdown of law and justice: “the well-known proposition of law is that it punishes the archer as soon as the arrow is shot no matter if it misses to hit the target. The respondent is proved to have shot the arrow, intended to damage the institution of the judiciary and thereby weaken the faith of the public in general and if such an attempt is not prevented, disastrous consequences are likely to follow resulting in the destruction of rule of law, the expected norm of any civilised society”.
Well, if the stakes are so very high—the destruction of the very rule of law, the basis of civilization itself—then who could fault the court for treating such infractions severely?
In 2006, Parliament amended the Contempt of Courts Act, limiting its application to situations where there was substantial interference with the course of justice. It is unclear, however, whether this has changed anything. The recent case of a Kerala legislator who was hauled up for contempt for calling judges “idiots” in a public speech indicates not.
The problem, of course, is that the contempt jurisdiction is a classic case of judges being judges in their own cause. While this is inevitable in the nature of things, it also calls for a very high degree of circumspection, a degree that has not yet been achieved.
A very clear Supreme Court ruling that limits instances of contempt to alleging personal bias or corruption against a specific, individual judge, might be a good start.
Gautam Bhatia is a New Delhi-based lawyer. His book Offend, Shock, or Disturb: Free Speech Under the Indian Constitution is available on Amazon.
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