Judicious Scandal – Relooking into the Criminal Contempt Jurisprudence
February 23, 2022
The concept of criminal contempt has gained recognition in recent times with the Prashant Bhushan case where the need to consider the criminal contempt law and the scandalizing the court was put forward focusing on the need for a new law concerning the same. The conviction of the civil rights lawyer, Mr. Prashant Bhushan in the contempt case has raised serious concerns over the whole judicial system focusing on the law of contempt.
It is said that the “Power of judiciary lies not in deciding cases, nor in imposing sentences, nor in punishing for contempt, but in the trust, confidence, and faith in the common man” which tells about the need to have a proper functioning system to ensure the welfare of the people and the society at large. While dealing with such aspects, it is important to analyze the present condition of the judicial system with the help of case laws and legislation to understand the changes that have to be made to create a change in the overall functioning.
Criminal Contempt Jurisprudence in India
The concept of criminal contempt can be analyzed by focusing on the contempt petition filed against Prashant Bhushan in the case where the Supreme Court (SC) initiated “suo moto criminal contempt proceedings” against the Advocate Prashant Bhushan and Twitter India for the tweets posted by the Advocate on the Twitter which is an important social media platform used by a lot of people across the globe. InRe Prashant Bhushan & Anr, the main issue raised was whether the tweets posted by Prashant Bhushan on the 27th and 29th of June, 2020 resulted in criminal contempt of court.
The tweet was about the Chief Justice of India (CJI) along with the picture of CJI Bobde on a motorcycle which was claimed as something which “inspired a feeling of no-confidence” in the independence of the judiciary which resulted in the “scandalizing the court”. The court held that the act of the person resulted in contempt of the court as the particular tweet was not appropriate to be posted online which can be viewed publically by a lot of people and hence a fine was imposed on Prashant Bhushan for his act.
As per Section 2(c) of the Contempt of Courts Act, 1971, criminal contempt is defined as “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 scandalizes or tends to scandalize, 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”.
In addition to it, it is said that the interpretation of the word “scandalizing” is done based on the discretion of the court where the facts and circumstances of the case are analyzed which leads to widening the scope of the same. The court concluded the tweets made by Mr. Prashant Bhushan as contemptuous as those tweets brought “disrespect to the dignity, the authority, the administration of justice of the Court and to the office of CJI in the eyes of the public at large. In Dr. DC Saxena v. Hon’ble CJI, the SC held that for “preserving the democratic health of public institutions, constructive public criticism may slightly overstep its limits” where the uncertainty and vagueness in the legal provisions were explained based on the facts and circumstances of the case.
The contempt law in India is based on English law where the provisions of the English Contempt of Courts Act, 1981 are applied to establish cooperation with the requirements mentioned under the European Convention on Human Rights. In addition to it, the contempt about the scandalizing the court is abolished in the United Kingdom (UK) to protect the administration of justice along with the protection against any kind of general comment made on courts and judges.
Hence while analyzing the legal framework in England, it can be seen that the main factor which is considered to charge a person of contempt is to see if the publication of any matter creates any risk of influencing any pending hearing. The demand for the “willful disobedience” principle, defined as the purposeful violation or neglect of a recognized legal obligation with or without malice and incorporating something more than knowledge, and the abolition of the “scandalizing the court” rule as a ground for contempt cases, has erupted on several occasions in India. The Department of Justice addressed the Law Commission in 2018 requesting that it look into the above-mentioned Act modification. The Law Commission, on the other hand, rejected this advice, claiming that weakening the provision would jeopardize the judiciary’s dignity and reputation. As a result, the “scandalizing the court” criterion needs to be revisited.
Relooking into the Contempt Jurisprudence
After examining all facets of India’s contempt statute, the writers concluded that it is draconian and causes prejudice to those charged. While delivering his address on the theme “The Legislation of Contempt: Is it Being Stretched Too Far?” the leader of the Indian Bar, Mr. Fali Nariman, also stated his perspective on the wide nature of the contempt law, calling it a “mercurial jurisdiction” with no fixed set of rules and restrictions. If public trust in the Justice system is low now, it is partially due to the amount of time it takes for issues to be resolved. If courts rehabilitate themselves rather than muzzling the outspoken, public trust in the system will be revived. The writers agree that the current law needs to be updated to address some of the issues raised above.
The nature and notion of criticism have evolved in the modern world, thus what would have “shaken the public’s faith in the judiciary” when the contempt statute was enacted may now be regarded as a reasonable criticism. As a result, while revisiting the law, the legislature should keep this in mind. Incorporating the notion of “willful disobedience” will also help to defend the “fair comment” defense used against contempt charges. To maintain the prestige of a democratic nation, an establishment like the SC should be obedient to constitutional values of open criticism and wide shoulders.
The power of constitutional courts to penalize citizens for contempt impacts two key fundamental rights of citizens which include the right to personal liberty and the right to freedom of speech and expression that are often discussed as issues of concern due to the importance of the same. As a result, the implementation of such provisions must create a careful balance between two opposing interests to ensure the smooth functioning of the system. Even the Supreme Court has acknowledged the need for moderation when using its “powers concerning contempt of court”.
The SC stated in Re: S Mulgaolkar v. Unknown, that the court cannot be immune from reasonable criticism. The contempt action should only be undertaken when an evident untruth is made with malicious intent to undermine public trust in the courts or to intimidate the courts. The claim simply emphasizes the importance of a reasonable interpretation of constructive judicial criticism.
While civil contempt is limited under the conduct to willful violation of court orders or breaches of undertakings given to a court, criminal contempt seeks to punish attempts to scandalize the court, bring its authority into disdain, or act in a way that obstructs due judicial procedure. Acts that scandalize the court include making false claims against the judiciary or specific judges, associating motive to judgments and judicial functioning, and launching baseless verbal attacks on the conduct of judges. Criminal Contempt covers a large portion of the cases brought under the Act. In India, the application of criminal contempt has taken a broad approach, from sentencing renowned persons who have held high judicial positions to prominent social activists. While such thoughtful approaches are widely praised, it is also critical to guarantee that judicial interpretation is fair.
While dealing with the issues concerning the judicial system of the country, criminal contempt takes one of the topmost places as it is a problem that needs to be resolved to ensure the smooth functioning of the country in all aspects which will result in the overall development of the people and the society at large. If the whole system is analyzed, it can be seen that it is the need of the hour to relook on the contempt jurisdiction of Indian courts to support the system from falling and to enhance the functioning of the same to ensure justice to all the citizens of the country.
Even in a world where major jurisdictions have systematically removed the crime of criminal contempt, the Indian system’s resistance to reform is particularly worrying. Although this placement of a small punishment on Prashant Bhushan represents a partial success for the lawyer-cause, activists much more work remains to be done to strike a reasonable balance in the judicial method to contempt actions. This balance is essential for the smooth functioning of the overall system where each minute aspect has to be considered and regulated for the same.