Why in the news?

• The Supreme Court initiated suo motu proceedings for criminal contempt against Prashant Bhushan, the lawyer and social activist for his tweet criticising Chief Justice of India and the role of Chief Justices in the last 6 years.

Need for contempt power

• Contempt power is needed 
  • To punish wilful disobedience to court orders (civil contempt), as well as interference in the administration of justice and overt threats to judges. 
  • To insulate the institution from unfair attacks and prevent a sudden fall in the judiciary’s reputation in the public eye. 

Arguments against contempt of court

Democracy defeated

• The need to “respect the authority and dignity of the court” has monarchical origins from when the King of England delivered judgements himself. 
• But over the centuries, judges playing this adjudicatory role, showing extreme deference to judges does not sit well with the idea of a democracy. 

A wide scope of contempt

• The definition of criminal contempt in India is extremely wide, and can be easily invoked. 
• Also, Suo motu powers of the Court to initiate such proceedings only serve to complicate matters. 

Against civil liberties

• A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
• Justice V.R. Krishna Iyer famously termed the law of contempt as having a vague and wandering jurisdiction, with uncertain boundaries; contempt law, regardless of public good, may unwittingly trample upon civil liberties. 

Chilling effect

• Liberal exercise of suo motu powers amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all.
• In this manner, the judiciary draws resemblance with the executive, in using laws for chilling effect.

Obsolete abroad

• Contempt has practically become obsolete in foreign democracies, with jurisdictions recognising that it is an archaic law, designed for use in a bygone era, whose utility and necessity has long vanished. For example, 
  • England abolished the offence of “scandalising the court” in 2013.
  • Canada ties its test for contempt to real, substantial and immediate dangers to the administration.
  • American courts also no longer use the law of contempt in response to comments on judges or legal matters.

Arguments favouring contempt of court

Power from constitution

• The powers of contempt of the Supreme Court and High Courts are independent of the Act 1971.
• The contempt powers of the higher courts are drawn from the Constitution itself.
• So to delete the provision relating to ‘criminal contempt’ particularly ‘scandalising of courts’ will have no impact on the power of the Superior Courts to punish for contempt (including criminal contempt) in view of their inherent constitutional powers, as these powers are independent of statutory provisions.

Impact on subordinate judiciary

• The Act empowers the High Court to act if someone is in contempt of the subordinate courts. Diluting the Act would expose the subordinate judiciary to acts of contempt of court.

Adequate safeguards

• The 1971 Act contains “adequate safeguards to exclude instances which may not amount to criminal contempt” as defined under Section 2(c) of the Act 1971 which means that not all cases of contempt are considered.

Conclusion

• Examining an amendment to the Act to nix “scandalising the court” as a ground for contempt and restrict contempt to only “wilful disobedience” of directions/judgements of the court can be considered.
• Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated. It should not be allowed to be used as a means to prevent any and all criticism of an institution.

References:

1. https://www.thehindu.com/opinion/editorial/scandalising-as-contempt-the-hindu-editorial-on-proceedings-against-prashant-bhushan/article32198126.ece
2. https://www.thehindu.com/opinion/lead/a-motorcycle-and-the-art-of-court-management/article32198142.ece
3. https://www.thehindu.com/opinion/lead/the-chilling-effect-of-criminal-contempt/article32198138.ece
4. https://www.thehindu.com/opinion/op-ed/reviewing-the-contempt-of-courts-act/article23606610.ece