Time for Reform or Repeal?

The Contempt of Court Act, 1971, has sparked extensive debate over its relevance in contemporary society. Questions arise about its necessity: Should it be preserved in its current form, or do specific provisions warrant repeal? The crux of the matter lies in delineating where contempt of court begins and individual freedom of speech ends. Striking a balance between these two is no easy task. Each of these issues presents complex nuances, defying a singular solution.

Critics have raised many concerns regarding the application of contempt of court laws in India, arguing that these powers have led to an environment of judicial overreach. Detractors worry that the judiciary might wield its authority to stifle legitimate dissent, thus undermining democratic values.

A case in point could be the issue of contempt proceedings involving lawyer and activist Prashant Bhushan. In 2020, a three-judge bench of the Supreme Court found Bhushan guilty of criminal contempt after he posted two tweets that criticised the judiciary. 

One tweet featured a photograph of Chief Justice S. A. Bobde riding a motorcycle, which Bhushan used to highlight what he deemed the irony of the situation during a pandemic-related court shutdown. He tweeted, “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice!”

In his second tweet, Bhushan questioned the Supreme Court’s role in allegedly eroding democracy in India over the past six years. He stated, “When historians in the future look back in the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction,

The Contempt of Court Act, 1971, has sparked extensive debate over its relevance in contemporary society. Questions arise about its necessity: Should it be preserved in its current form, or do specific provisions warrant repeal? The crux of the matter lies in delineating where contempt of court begins and individual freedom of speech ends. Striking a balance between these two is no easy task. Each of these issues presents complex nuances, defying a singular solution.

Critics have raised many concerns regarding the application of contempt of court laws in India, arguing that these powers have led to an environment of judicial overreach. Detractors worry that the judiciary might wield its authority to stifle legitimate dissent, thus undermining democratic values.

A case in point could be the issue of contempt proceedings involving lawyer and activist Prashant Bhushan. In 2020, a three-judge bench of the Supreme Court found Bhushan guilty of criminal contempt after he posted two tweets that criticised the judiciary. 

One tweet featured a photograph of Chief Justice S. A. Bobde riding a motorcycle, which Bhushan used to highlight what he deemed the irony of the situation during a pandemic-related court shutdown. He tweeted, “CJI rides a 50 Lakh motorcycle belonging to a BJP leader at Raj Bhavan Nagpur, without a mask or helmet, at a time when he keeps the SC in lockdown mode denying citizens their fundamental right to access justice!”

In his second tweet, Bhushan questioned the Supreme Court’s role in allegedly eroding democracy in India over the past six years. He stated, “When historians in the future look back in the last 6 years to see how democracy has been destroyed in India even without a formal Emergency, they will particularly mark the role of the Supreme Court in this destruction, & more particularly the role of the last 4 CJIs.”

The court found these tweets an attempt to destabilise Indian democracy, asserting that such malice must be addressed with firm action for the greater public good. The judgement emphasised that the courts’ leniency should not be equated with weakness. 

The Supreme Court, in its 108-page ruling, stated that punishing Bhushan was an extreme yet necessary measure to preserve the “streams of justice pure, serene, and undefiled.” It reiterated the judiciary’s critical role as the bedrock of Indian democracy, stating it was the court’s duty to uphold its dignity.

Despite the ruling, Bhushan maintained his stance, refusing to apologise, maintaining that his comments were made in the public interest and that he did not aim to disrespect the court. Ultimately, the court levied a nominal fine of one rupee or a potential three-month simple imprisonment for contempt.

The question of whether Bhushan’s tweets constituted criminal contempt or not ignites a broader debate: to what extent is criticism of the judiciary permissible, and who possesses the authority to define these boundaries in the absence of clear guidelines within the Act?

Many decorated judges in the past have echoed the sentiment that the provisions of the Contempt of Court Act warrant a thorough reevaluation. Justice Madan Lokur, a former Supreme Court judge, articulates this perspective, emphasising the need for a closer examination of the entire Act. He points out that the Act encompasses two distinct aspects: civil contempt, which involves disobeying a court order, and criminal contempt, which pertains to actions that scandalise the court.

Justice Lokur states, “Civil contempt is necessary; otherwise, people will not obey the order of the court. As far as criminal contempt is concerned, I am not particularly in favour of retaining this provision.” 

Balancing Judicial Integrity and Free Speech

Many lawyers have found themselves on the receiving end of contempt provisions, yet some have successfully challenged these rulings through legal avenues. A notable example is advocate Mehmood Pracha, whose case highlights the complexities involved. 

In 2022, the Supreme Court overturned a contempt ruling issued by the Central Administrative Tribunal (CAT) against Pracha, stating that the tribunal failed to conduct a proper trial to substantiate the charges against him.

The apex court observed that while Pracha denied making any contemptuous remarks, the CAT did not adhere to the procedural requirements set forth in Section 14(1)(c) of the Contempt of Court Act and Rule 15 of the CAT’s contempt rules. The Court deemed that the absence of a formal trial and supporting evidence led to a miscarriage of justice. Justices K. M. Joseph and Hrishikesh Roy, who comprised the bench, said that the determination of such cases should hinge on evidence, particularly when the accused contests the allegations.

While the Supreme Court had previously encouraged Pracha to issue an apology in 2021, he remained steadfast, asserting his innocence. In a conversation with The Probe, Pracha notes, “Not all judges, but most judges feel that since they are judges, they are above the law. Judges are not people we have to revere. It is just a formality that we say ‘honourable justice’ to show respect. But they are also doing public service like any other public servant, which they don’t realise. But more often than not, they think that they are superhumans and people who are standing opposite them are lesser humans. That is the biggest flaw in our system. They get carried away when we use terms like ‘my lord’ and ‘your honour.’ They should stay grounded, understanding it is public service.”

Some lawyers have approached the court itself to reconsider certain contentious provisions of the Act, raising concerns about the inherent conflict of interest that arises when a judge becomes both the victim and the decider of a case. This situation casts doubt on the impartiality that is expected from the judiciary.

The Contempt of Court Act, 1971, is also frequently criticised as being outdated due to the ambiguity present within its provisions. The Act employs vague terminology such as “scandalising the court,” which can lead to subjective interpretations and inconsistent applications of the law.

Section 2(c)(i) of the Contempt of Courts Act, 1971, defines “criminal contempt” as an act that “scandalises or tends to scandalise, or lowers or tends to lower the authority of any court.” This clause aims to prevent actions or statements that could potentially harm the judiciary’s authority or reputation.

Senior advocate Mathews J. Nedumpara, who has practised for nearly four decades, filed a writ petition in the Kerala High Court in 2016 challenging the Contempt of Court Act.

In his petition, Nedumpara highlighted the hypocrisy in the law, stating, “The public at large could criticise the President of India, the Prime Minister, but cannot utter a word even against the lowest judicial officer. The power of contempt, particularly of scandalising the court by criticising it and its judges, has a very disquieting consequence. In this country, there is no literature, no drama, no cinema, no poetry, no prose, and no caricature in any shape where the judiciary—one of the most important wings of the government—could be critically discussed and deliberated. If Charles Dickens were born and wrote ‘Bleak House’ in India instead of the U.K., there would have been numerous contempt of court proceedings against him, and I am certain that the majority would have been initiated by the legal fraternity. There is no other jurisprudence that has been subjected to as much abuse as the ‘in terrorem’ jurisprudence of contempt of court; the only other jurisprudence being that of Public Interest Litigation.”

Nedumpara argues that the concept of contempt of court represents a regressive legal doctrine rooted in Canon Law, specifically from the Dark Ages, a time when offences against the Church led to extreme punishments, including being burned alive at the stake. He believes that the power of contempt is often wielded against the voiceless, outspoken individuals, and those who uphold the noble duty of speaking the truth instead of remaining silent when compelled to speak out.

In his petition, Nedumpara challenges the constitutionality of the Contempt of Courts Act, 1971, seeking to declare the phrases “scandalises or tends to scandalise, or lowers or tends to lower the authority of any court” in Section 2(c)(i) void, as he contends they infringe upon the freedom of speech.

Speaking to The Probe, Nedumpara asserts, “I have stated before the court that the Contempt of Court Act is curtailing my freedom of speech. The problem lies with criminal contempt. If a lawyer or litigant obstructs legal proceedings, there are penal laws to address that. If someone submits false documents in court, they can be prosecuted for perjury. Civil contempt may be necessary to enforce court orders, but what is the need for criminal contempt?”

Conversely, lawyer Mehmood Abdi offers a different perspective, emphasising the significance of maintaining the court’s majesty.

Abdi states, “Maintaining the decorum of the court is also in the interest of all people, not just the judges. If people do not respect the courts, there will be chaos. There must be decorum in the court; people must behave appropriately. Courts typically do not misuse contempt provisions unless something grave occurs. The fundamental reason the contempt of court act was enacted was to ensure that court orders are upheld. Judges occupy a higher podium because they dispense judgments and are treated as demigods. Fair criticisms are acceptable, but outrightly scandalising the court or a judge is unacceptable.”

The ongoing discourse and differing views surrounding the Contempt of Court Act shows that we may never arrive at a single conclusion, but the sheer diversity of opinions provokes a compelling case for reexamining the Act. Most critics are not fundamentally opposed to the Act; indeed, certain provisions are essential for upholding the integrity of judicial orders. However, when the Act stifles freedom of speech, we must seek a balance that allows for fair criticism of the judiciary. It is crucial that the judiciary remains accountable and does not misuse the provisions of the Act, which can inadvertently grant them unwarranted powers. The challenge lies in ensuring that while the judiciary is protected from genuine contempt, it also remains open to constructive dialogue and critique in a way that both justice and free speech coexists.