A need for breaking the archaic shackles

Introduction

The Supreme Court of India has held Senior Lawyer and Activist, Prashant Bhushan guilty of the offence of contempt of court for his tweets, through which he criticised the Chief Justice of India and questioned the court’s silence in times when its actions were demanded the most. He has been charged a fine of Rupee 1 which he has graciously accepted. The court held that the remarks have brought the administration of justice in disrepute as it has undermined the dignity of the institution. The Bench referred to the case of Rex v Almon (1765), to hold that the authority of the Court extends to the ‘deference and respect that is paid to Judges for their acts’. But this begs the question: Is the notion of the infallibility of the Supreme Court so brittle to be eroded by constructive criticism?

The reverence of authority and the constitutional sanctity of the court need to be upheld for the sustenance of the faith system. The faith people put in the highest institution is crucial as the court is the guardian of the law. And it is in this light that the court has been bestowed with the power to hold people in its contempt if through their actions or speech they aim to destabilise the trust it has been built upon.

But it becomes imperative to consider that the sanctity of the court shouldn’t be only attached to the faith the citizenry puts in it, but also to the conduct and decisions of the judges who are constitutionally empowered to represent the apex court under Article 124 of the Constitution.

Historical Perspective

The idea of contempt of court dates back to the early twelfth century, wherein the reign of Henry I, contempt of king was a recognized offence. ‘Order is Heavens’ first law’ – the belief that divine law passes down to earth and becomes ‘the first law of nature’ dominated early English jurisprudence. The king was believed to be the fountainhead of justice who delegated it to judges, and so to disrespect or question the court became a challenge to the wisdom and the superiority of the King himself. The underlying principles of this system are the theory of the divine origin of the king and the theory of social contract. The judiciary was thought of as a force capable of ensuring adherence to the King’s mandate and consequently, the order in society.

Even in India, in the governance manual Arthashastra, Kautilya firmly advocated that the person who speaks ill of the king shall be severely punished. The concept of ‘contempt of court’ in India was introduced through the colonial system. It was a mechanism to suppress the dissent that the courts may face at the hands of the people they were exploiting. The power in this regard was voluntarily adopted by the country after it gained freedom from its colonial masters. In 1960, a Bill was introduced to amend the law relating to Contempt of Court. Observing the law on the subject to be uncertain, undefined and unsatisfactory, and in the light of the constitutional changes in the country, the Government appointed a Special Committee. The Sanyal Committee submitted its report in 1963, which inter alia defined and limited the powers of certain Courts in punishing for Contempt of Courts and provided to regulate the procedure in relation thereto.  After the aforesaid deliberations the Contempt of Courts Act, 1971 came to be enacted.

Philosophical Perspective

The criticism of the establishment of the judiciary and the judges which preside over it is discouraged to uphold the larger faith system that ensures its smooth functioning. But the question stands that does it give an absolute safety cover to the judicial system against any criticism even if passed in the interest of the larger public good? While Article 19(2) of the Constitution provides a limitation to the freedom of expression guaranteed under Article 19(1)(a) of the Constitution, a criticism of the inaction of the judiciary when its dynamism is required the most cannot be seen as an expression beyond the prescribed limitation but an evidence of the expectation attached to the highest judicial office.

Philosophy’s most famous defense of the freedom of speech was articulated by John Stuart Mill in his 1859 work, On Liberty. Mill put forth the idea that truth drives out falsity, therefore the free expression of ideas, true or false, should not be feared.  Free discussion is necessary to prevent the “deep slumber of a decided opinion”. But this freedom cannot be absolute. A bench of J. Dipak Misra and PC Pant stated,

“Freedom of speech and expression has to be given a broad canvas, but it has to have inherent limitations which are permissible within the constitutional parameters. [T]he said right is a right of great value and transcends and with the passage of time and growth of culture, it has to pave the path of ascendancy, but it cannot be put in the compartment of absoluteness. There is constitutional limitation attached to it.”

Political Philosopher Brian Leiter lays the argument against this freedom of speech. Leiter elucidates his viewpoint by explaining how people are governed by their environment. The desires and thoughts of people are governed by social, economic, and psychological forces. He criticises the ideas of John Stuart Mill by stating that the background conditions for the process of discovering truth, namely educated and mature citizenry, does not suffice for a marketplace of ideas to be conducive to truth.

So there has to be a balance of this right to freedom of speech. Stanley Fish rightly suggested that there is a need to find a balance in which “we must consider in every case what is at stake and what are the risks and gains of alternative courses of action”. So this freedom must prevail in a delicate balance. And the resulting balance should support the interpretation which favours the larger social good.

Legal Framework

Art 129 of the Constitution defines that the Supreme Court shall have the power to punish for its contempt. Furthermore, the Contempt of Courts Act, 1971 provided statutory recognition to this concept. Sec 2(b) defines civil contempt, which essentially ensures compliance with the orders of the court and identifies wilful disobedience of judgement as contempt. Sec 2(c) elucidates criminal contempt. There are three elements to criminal contempt. Words, whether written or spoken, signs and actions – (a) that “scandalize” or “lower” the authority of the court, (b) prejudices any judicial proceeding, and (c) obstructs the administration of justice.

The special nature of contempt proceedings is that it is not the state against the individual, but the very court against the person. From the very outset, it hints that this discretionary power vested with the court is arbitrary and results in an unfair trial of the accused, who is at the beck and call of the court. It makes a mockery of the principles of natural justice under the pretext of protecting and demanding respect for the court of law.

Section 13 of the Contempt of Court Act, 1971 provides that the court shall not hold an individual in contempt unless it is satisfied that the contempt is of a nature to substantially obstruct due course of justice. So it implies that the contempt of court has to be of a nature which has the effect of destabilising the institution. There is a gravity attached to its inference and cannot be exercised with arbitrary discretion.

Through the arbitrary application of the provision of contempt, the court has criminalized free speech and expression exercised by Sr. Advocate Prashant Bhushan. Constructive criticism and due check on the functions of the judiciary is much called for. The concept of divinity and the regal air that surrounds the institution shall not mitigate the fact that every social institution is disallowed to enjoy protection motivated by arbitrariness. In the case of R. Rajagopal v. State of Tamil Nadu, the Supreme Court observed that,

“The doctrine of John Sullivan states that the public must be open to strict comments and accusations as long as made with bonafide diligence, even if it is untrue.”

In the case of Shri Baradakanta Mishra v. The Registrar of Orissa High Court, Krishna Iyer, J. observed,

A law which permits a process of brevi manu conviction may unwittingly trench upon civil liberties and so the jurisprudence bearing on contempt power must be operated with serious circumspection by the higher judicial echelons. So it is that as the palladium of our freedoms, the courts must vigilantly protect free speech even against judicial umbrage – a delicate but sacred duty whose discharge demands tolerance and detachment of a high order.”

The idea that flows from these judgements is that the power to punish for the contempt is not to be exercised in a vague fashion, but delineated with deliberation and the spirit to promote free speech for the greater good of the public. If faith is the currency of the judiciary, open criticism is the lifeblood of democracy. Faith shall not be commanded from the people, but it shall be gained through judicious use of the powers the institution is bestowed.

In the present case, one of the tweets was targeted at the Chief Justice of India referring to the indifference the highest judicial officer has shown to the vulnerable sections of the society while taking delight in his luxuries. The court has held that such remarks have shaken the foundation of the institution and provoked a sentiment that ruptures the faith system. In the case of P.N. Duda v. V.P. Shiv Shankar, the court observed that,

“The judges cannot use the contempt jurisdiction for upholding their dignity. Our country is the free marketplace of ideas and no one could be restricted to criticise the judicial system unless this criticism hampers the ‘administration of justice.”

The observation promotes the viewpoint that the power shall not be used by the judges to favour their interests.

Conclusion

The honour and the prestige that the court commands shall not find its root in a system of faith, but on the strength exhibited through judicial actions taken in the spirit to advance the society, and ameliorate the factions which look up to the institution for consideration. Hope J. stated in the case of Attorney-General for NSW v. Mundey that,

“Public institutions need to stand on their merit. They cannot be propped up through laws if their conduct does not command respect and confidence.”

Criticism of the judiciary shall not be criminalized as it runs contrary to the established notions of democracy. The US has almost no contempt law. UK and Canada have opted for a liberal approach by acknowledging it to be archaic, and only bringing it into operation when there is a substantial danger to the administration of justice.

It becomes imperative to acknowledge that the whole notion of employing punitive measures when a person criticizes the authorities has stemmed from the monarchy system. A system where kings needed protection from criticism, so that the public does not endeavour to overthrow them. The archaic nature of its jurisprudence makes it irrelevant in today’s time.  Every power, and the institution which enjoys the power, need to be checked and criticised if it fails to serve the public good. In these hard times when the world is in the clutches of a pandemic crisis, people look up to the institution of the judiciary to look at their plight and take necessary recourse. While there were actions enforced by the Supreme Court for migrant workers and prisoners, prompt actions were only witnessed in high profile cases. The tweets were used as a medium of expression to question the accountability and inaction of the court, and they were nothing but a form of constructive criticism. No one, not even the court shall be allowed to get off scot-free from accountability. The court cannot choose to hold a person in contempt if he questions its glaring inaction. Krishna Iyer, J. said once that,

“The court is a magnanimous institution, majestic and glorious, and it sustains the confidence of the nation. But if the judiciary behaves as an elite upper sector and denies the rights of the common masses, criticism is what it earns.”

The constitutional validity of the power to hold for contempt is checked through the test of arbitrariness. In the present case, the power was evidently used in an arbitrary manner as no sound reason has been given in the judgement to justify how the criticism destabilised the institution. This invokes a sentiment amongst the people that the conduct and actions of the judiciary cannot be questioned. And this notion shall not prevail in a democratic edifice. The archaic source of this provision vociferously advocates the viewpoint that it should be done away with or shall be exercised with strict deliberation.


ABOUT THE AUTHOR

Mili Budhiraja

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Mili is a second-year student at the Faculty of Law, University of Delhi.

2 thoughts on “A need for breaking the archaic shackles

  1. I am thankful to you because your article is very helpful for me to carry on with my research in the same area. Your quoted examples are relevant to my research as well.

    Like

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