Introduction

Contempt in the form of Scandalizing the court comes in the way of an individual’s right of exercising Freedom of Speech and Expression. Recently, the Supreme Court (“SC”) initiated Suo moto criminal contempt proceedings against advocate Prashant Bhushan under Section2(c) of the Contempt of courts Act,1971(“the Act”). This issue arose when Prashant Bhushan in one of his tweets accused the previous 4 Chief Justice of India (“CJI”) for playing a role in destroying the democracy during an undeclared emergency during the past six years. Further, in another tweet, Bhushan accused the sitting CJI of shutting the SC during the lockdown and violating the basic right to access to justice for common people. This critical tweet was posted last month on photographs showing CJI sitting on a heavy bike parked in Nagpur.

Therefore, this issue of contempt in the form of scandalizing the court has been brought into light once again. This article examines the (A) the position of contempt law in England and the present usage of contempt law in India and(B)an analysis on whether contempt law in India is required.

Comparison between English and Indian Contempt Law: A Historical to Present Day Outlook

The Law of Contempt grants the judges the right to punish those who disdain the court. The law was developed in England, to preserve the dignity and integrity of the jurisdiction of the Court to compensate for the disrespect offered to the court. In essence, this law is used to prevent the acts that can undermine the proper day to day functioning and dignity of the court.

Starting from the year 1800, in England there were certain cases of contempt of court which were decided, where it was found that contempt in form of scandalizing the court was used in a sparing way. For instance, one of the most famous case of contempt in England came in the year 1987 when a daily in England published an upside picture of three senior judges with a heading “YOU FOOLS”. Nonetheless, this newspaper article, which indicated the judges were thinking upside down, did not result in any action of contempt. Lord Templeman, one of the three judges whose inverted picture was published, when asked that why a case of contempt against the publishers was not filed, said that Judges in England took no notice of personal insults and also this act took place outside the court room which does not harms the decorum of the court. This shows that contempt in form of scandalizing the court was used in a sparingly way.

In the year 2011, a similar case of contempt came in India were a politician of Kerala was convicted for contempt as he called two High Court Judges “Fools”. The politician’s comment was a response to a High Court order which banned public demonstrations and protests. In his comment, he also said that judges are “living in glass houses” and that their “judgments have a value of grass”. The Judges did not have much objection with these statements rather they were not able to accept the comment which called them as “fools”. The court said that such statements may influence a ”rustic, illiterate” crowd to have feelings against the judiciary. Thus, the SC sentenced the politician to an imprisonment of four months. This is one of the many cases which shows that how contempt in form of scandalizing has been used in India.

In England, judges considered that when a statement is made outside the courtroom and it does not directly affect the day to day court proceedings, then the offense of Contempt in the form of scandalizing is not attracted. But in India, considering the pattern of cases, we can notice that the judges use the power of contempt in the form of scandalizing the court in an excessive way. A person can be charged for a making a statement against a judge which does not affects the decorum and the daily functioning of the court. It seems as if, in some occasions, the judges have used contempt of court for a contempt of themselves. Further, in the year 2013, England abolished scandalizing the court as the form of contempt but India has still retained the law.

An Analysis on whether Contempt in the form of Scandalizing is required in India?

In India, it is essential to have laws that punishes a person for contempt of court, as it is a mechanism to punish people who knowingly disobeys any decision or deliberately violates any promise rendered to a court, or attempts to interfere with, the proper operation of any judicial proceeding, or interferes with the administration of justice. But contempt in the form of scandalizing the court should be abolished as it has very far-reaching effects. As per section 2(c)(1) of the Act, scandalizing the court and lowering the authority of the judiciary is a very wide term and it depends on how the judge wants to interpret a statement made and can be brought within the ambit scandalizing the court. Additionally, if a judge accuses a person for Contempt then that person is at the mercy of the judge as it is then completely on the discretion of the judges that whether the judge accepts criticism as fair and legitimate or as scandalous. It must be understood that the statements made outside the courtroom which are merely an opinion of and does not hampers the day to day proceedings of the court should not be considered as Contempt in the form of Scandalizing the Court. Lord Denning of England said that (referring to the judges) we should not use contempt of court to protect our dignity, rather our dignity must rest on a much stronger foundation. Countries such as United States of America abolished Contempt Laws and England in 2013 abolished contempt in form of scandalizing the court.

Conclusion

For a citizen who is simply exercising his right to free speech to put forth his/her opinion and is charged for contempt, seems to be harsh. The excessive use law on scandalizing the court directs restricts the dissent and harms the essence of democracy. In India, judges can follow the alternate practice started in England by the judges which is to file a defamation case against the person who had made some remarks about the judge which is perceived to be defamatory. Considering, many countries have abolished the practice of Contempt in the form of Scandalizing the Court, India should also do the same. It is important to note that in India, courts/judges should retain limited powers to punish people who scandalize the Court which is necessary to preserve the decorum and the day to day court proceedings. In other words, this means that if someone shouts at a judge and makes abusive remarks in the courtroom, which affects the decorum of the court, then the judges should have the power to deal with such contempt. In this light, whether the statements made by Advocate Prashant Bhushan have an impact on day to day proceedings of the court is a question which needs to be answered. Also, India needs to ascertain  that whether or not we need a law on Scandalizing the Court.

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ABOUT THE AUTHORS

Ramit Singh

Ramit Singh is a third-year student at Institute of Law, Nirma University. His interests lie in Constitutional Law and Arbitration Law.

Rishi Bhargava

Rishi Bhargava is a third-year student at Institute of Law, Nirma University. His interests lie in Constitutional Law and Criminal Law.