Home >Opinion >Columns >Opinion | The court has an opportunity to lay down the limits of contempt

It would be useful to let the current contempt of court proceedings against senior counsel Prashant Bhushan reach a logical and well-enunciated judicial conclusion. There are actually two contempt cases involved. One relates to a 2009 statement made by Bhushan to Tehelka that eight of 16 former Supreme Court judges were (or had been) corrupt, which is being heard by a three-judge bench. The other case relates to a series of tweets by Bhushan about the current chief justice and the judiciary in general. One case comes up for hearing on 4 August and the other the next day.

A statement signed by some retired judges and prominent Left-liberal politicians, activists and intellectuals has called on the Supreme Court to withdraw the contempt case against Bhushan. The statement may or may not be politically motivated, but the only way to deal with it is by actually going into the merits of the contempt case, and the validity of various contempt laws. If needed, the three-judge bench can be expanded to make it a constitutional bench, for what is under contention here is the constitutionality of the contempt law itself.

The Supreme Court and various high courts have powers under Articles 129 and 215 to act against contemnors. Article 129 says that “The Supreme Court shall be a court of record and shall have all the powers of such a court, including the power to punish for contempt of itself." Article 215 says much the same thing in regard to the powers of high courts. In addition, there is the Contempt of Courts Act, 1971, which seeks to define what constitutes contempt. There are broadly two types of contempt, civil and criminal. The former includes defiance of court orders or judgments or refusal to honour undertakings given in court. The latter includes publication (by words, signs or visible representation) that would “scandalize" or “tend to scandalize", “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".

Common sense tells us that phrases like “tends to scandalize" can be interpreted in multiple ways by different courts and judges. The wording needs to be more precise, and standards set to differentiate between what really demeans the judicial process and what merely offends some judges.

The liberal view is that courts should not resort to the use of constitutional and legal provisions to stifle free speech, but this argument is too general and can, in many circumstances, result in courts not having any remedy against abuse and vilification. Just as free speech provisions cannot be absolute, so too comments on the judiciary cannot be an open licence to malign it, especially if done by powerful people. Courts can be lenient against ordinary individuals who may occasionally rant over an unfavourable judgment, but should prominent lawyers have the same privilege? Power comes with responsibility. It is one thing to criticize the content of judgments or court proceedings, and quite another to impute motives and bias. If these exist, they must be framed as charges against specific judges and proven in a court or Parliament.

In the past, matters relating to contempt have tended to result in apologies ending the matter. Bhushan himself apologized to the court last year after he admitted that he had made a “mistake" in alleging that the government had submitted “fabricated" minutes of a meeting of the high-powered selection committee that appointed M. Nageswara Rao as interim director of the Central Bureau of Investigation. In another case, though, the Supreme Court went the whole hog and ordered the arrest of a sitting high court judge, Justice C.S. Karnan, for misconduct in alleging that members of the judiciary were guilty of nepotism, corruption and casteism.

In the Bhushan case, there is an additional point to consider. After the court started hearing the contempt case pertaining to his statements to Tehelka, his father Shanti Bhushan intervened and offered alleged “evidence" against eight former chief justices of corruption. The names and “evidence" were offered in a sealed cover. The problem with offering information in sealed covers is simple: Since there is no transparency in what is being said, the public has no way of knowing whether what was given was really evidence, or some other form of communication aimed at a few individuals. Sealed cover information is no substitute for filing an actual case of corruption against specific judges in courts. It appears to display a lack of concern for the public’s right to know what exactly is being alleged, and is equally easy for the judiciary to suppress the same.

A final constitutional view on punishment and remedies for contempt of court may be useful at this juncture, not only because it involves the highest courts of the land, but also because Parliament and state legislatures have similar powers to act against contempt.

What we need in the Bhushan case is a clear verdict with good reasoning that sets a worthy precedent.

R. Jagannathan is editorial director, ‘Swarajya’ magazine

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