CRIMINAL CONTEMPT AND INDIAN JUDICIARY

This article was written by Prakriti Singh, a student of HNLU. 

INTRODUCTION

Criminal Contempt of Court in the recent times is considered as a relic of a bygone age. On several instances, the Indian judiciary by invoking this provision has intensified the wrangle on criminal contempt. The criminal contempt provision is often criticized for being an unreasonable restriction on the freedom of speech and expression and a weapon in the hands of judiciary to muzzle dissent. There is a lack of uniformity in the approach adopted by the judiciary in interpreting criminal contempt law. This article will analyze the vagueness prevalent in the criminal contempt provisions, the inconsistency in the approach of the judiciary in interpreting this provision and the blurred line of distinction between fair criticism and scandalous remarks. It will also make some suggestions regarding how the judiciary can revise its approach so that the freedom of thought and expression is properly balanced with judicial integrity.

CRIMINAL CONTEMPT AND SCOPE OF MISUSE

The criminal contempt of court is a legal provision replete with the scope of misuse due to its vagueness. Section 2(c) of the 1971 Act does mention the words “scandalize, prejudice or interfere”, but the nomenclature is undefined and ergo dons the veil of uncertainty. The original branch of law known as “contempt of court” has been described in several books as “dubious and controversial”.[i]

Fali Sam Nariman, the legal luminary has drawn an analogy of the criminal contempt law with Jeremy Bentham’s “Dog Law”. Jeremy Bentham called the Common Law as “Dog Law” because it condemned the offenders after the event has taken place in much the same way that the owners punish their dogs after they have erred. In case of criminal contempt of court also, there is a lack of constraint or precise circumstances.

INCONSISTENT APPROACH OF THE JUDICIARY

The Indian judiciary has failed to give a uniform interpretation of the criminal contempt law. There are large scale differences in the verdict for cases with similar circumstances. In E.M.S. Namboodiripad v. T.N. Nambiar, the apex court held Mr. Namboodiripad guilty of contempt of court for his scandalizing remarks that judges in the Indian Judiciary are grappled with their own idiosyncrasies, strongly influenced by class prejudices. In P.N. Duda v. P. Shiv Shankar, the apex court declined to initiate contempt proceedings against P. Shiv Shankar for his remarks criticizing the apex court for showing differential treatment for different classes and disregarding the rule of law. Justice Sabhyasachi Mukherji held such statements to be covered under “fair and reasonable criticism”.

Criminal contempt of court is a restriction on the freedom of speech and expression which is guaranteed to the Indian citizens by the Indian Constitution. The apex court of India has recognized the importance of freedom of speech and on several occasions, acted as its custodian from the abuse and arbitrary restrictions of the executive and the judiciary. In Kedar Nath v Union of India, the apex court had laid down a high level of precision in a law aimed at safeguarding the security of the state. The apex court had established several safeguards against the infamous Section 124A (Sedition) of the Indian Penal Code and developed a robust test to be followed in order to label an act as “sedition”. Section 124A is in conflict with the freedom of speech and expression, which is subject to reasonable restrictions. The criticism of government and its policies is permitted under the Indian Constitution and cannot be termed seditious. Sedition is an act which has the potential of creating “Public disorder”.

In Shreya Singhal v. Union of India, Section 66-A of the Information Technology Act, 2000 was held null and void by the apex court of India. Section 66-A was a wide scoped criminal provision which could subject any person “sending offensive messages through communication service” to punishment. The Bench held that a vague penal law violates the principle of freedom, as enshrined under the Indian Constitution and the “due process of law”. A law must have a reasonable level of definiteness. A vaguely worded law gives unbridled authority to police and judges and leads to discrimination and arbitrariness. However, while striving to maintain itself from scandalizing statements and prejudices, the judiciary itself has failed to give a definite and uniform interpretation of the criminal contempt of court.

THIN LINE BETWEEN CRIMINAL CONTEMPT AND FREEDOM OF SPEECH

“Whoever would overthrow the liberty of a Nation must begin by subduing the freeness of speech” – Benjamin Franklin

According to Section 5 of the Contempt Act, fair criticism of any judicial act doesn’t tantamount to contempt of court. Article 19(2) of the Indian Constitution does permit “reasonable restrictions” upon the freedom of speech and expression. The line of distinction between “criminal contempt” and genuine but trenchant criticism is a thin one. This thin line of distinction, combined with the inconsistent approach of the judiciary has often led to the imposition of unreasonable restrictions on right to free speech and fair criticism.

The contempt case against Arundhati Roy, the reputed author is one of the most controversial cases of criminal contempt of court. The writer, through an article, had expressed her dissent towards the apex court’s decision of allowing the height of the Sardar Sarovar Dam to be raised. Due to this article and the subsequent protests staged by Narmada Bachao Andolan, the Supreme Court had sent her a show cause notice alleging scandalous remarks made by her against the apex court. The writer in her affidavit denied the allegations as well as criticized the apex court for having time to initiate criminal contempt proceedings against its criticizers but giving the excuse of lack of time for refusing a judicial enquiry into the Tehelka Scandal. The apex court initiated suo motu criminal contempt proceedings against her. In the verdict, the apex court held that the freedom of speech and expression is subject to reasonable restrictions. If any criticism against apex court is made with a mala fide intention and undermines the dignity of the court, it is liable to be punished for criminal contempt of court.   

Justice Hugo Black had once said that a silence enforced by a court merely to maintain the dignity of the court would generate suspicions against the court instead of restoring its dignity. Labour politician and barrister Hartley Shawcross had criticized one of Lord Denning’s judgments by stating, “Denning is an Ass”.  Lord Denning declined to take contempt action because his view was that he should disprove it not by contempt proceedings but by means of performance. The trust and faith of the public in the judiciary will depend upon the order and judgments of the court, rather than the exercise of criminal contempt powers.

Another controversial order related to criminal contempt of court was given by the apex court in Re: Vijay Kurle & Ors. The apex court held that any litigant can never question the capability of the judges of the court. The same will tantamount to a scurrilous attack on the court lower its integrity. Lord Atkin had said that Justice cannot be a cloistered virtue. It must be subjected to scrutiny and unequivocal remarks by the citizens.

CONCLUSION

Judiciary is considered to be a key pillar of Indian democracy. It has been given the status of custodian of the citizens’ rights and liberties. Criminal contempt of court is a law which aims to protect the integrity of this judiciary and keep the administration of justice unpolluted. However, if the custodians adopt a vague approach, how can they safeguard the integrity of judiciary? The Indian judiciary, while interpreting this provision, must approach a consistent and uniform approach. It must ensure that the line of distinction between “fair criticism” and “scandalizing remarks” is thick and clear. The jurisprudence developed in Shreya Singhal and Kedar Nath case should be emulated in criminal contempt cases.

Also, in addition to the adoption of a uniform approach, the Indian judiciary should give primary importance to freedom of speech. India is a ratifying party to the International Covenant on Civil and Political Rights which authorizes any restriction on freedom of speech and expression only on the grounds of maintenance of public order and legitimacy. The judges, instead of being thin skinned, must develop a thick skin. In the Shreya Singhal case, the apex court had recognized that freedom of thought and expression has a supreme importance, as envisaged by the Indian Constitution. A “free marketplace of ideas” must not only be accepted, but also be promoted by the judiciary. The same will provide a strong platform to the citizens to divulge their thoughts and ensure the safeguard of dignity of the judiciary.

[i] Gordon J Borrie et al., Borrie and Lowe: the law of contempt. (2013), http://www.lexisnexis.com/uk/legal/api/version1/sf?sfi=GB03STCmtrySrch&csi=369423&shr=t (last visited May 27, 2021)