Criminal Contempt: Should It Be Unconstitutional?

Criminal contempt is not only an unreasonable restriction on free speech, but also fails to achieve its objective of protecting the integrity of the judiciary.

contempt of court

Last week, a petition was filed before the Supreme Court challenging the constitutionality of a criminal contempt provision. This was filed by Advocate Prashant Bhushan, former Minister Arun Shourie, and senior journalist N Ram, who have all had contempt proceedings initiated against them in the past. The petition challenges the constitutional validity of one category of ‘criminal contempt’ under the Contempt of Courts Act, 1971, arguing that the vague and arbitrary provision violates Articles 14 and 19 of the Constitution.

The offence of ‘criminal contempt’ is defined in Section 2(c) of the Act, which states; ““criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which— (i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or (ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner”.

Also Read: Alarming Pattern of ‘Contempt’ for Activists and their Advocates

The petition filed before the Supreme Court has specifically challenged the ground under Section 2(c)(i); of ‘scandalizing’ or ‘lowering the authority’ of any court, as being unconstitutional. Earlier too, many academics and advocates have argued for the removal of contempt under Section 2(c)(i). In April 2018, the Law Commission also considered this issue and published a detailed report on it. The Law Commission considered whether contempt should be restricted to “wilful disobedience of directions/judgment of Court” (which is defined as ‘civil contempt’ under Section 2(b) of the Act). In conclusion, the Commission recommended against narrowing down the definition of contempt. The report cited constitutional provisions, colonial jurisprudence, and policy reasons in support of retaining the offence of criminal contempt in India.

It is indisputable that the Constitution does grant power to courts of record to punish for contempt and that Article 19(2) allows for reasonable restriction of the freedom of speech and expression on the ground of contempt. However, the Constitution does not define or delineate the scope of ‘contempt of court’; it is precisely to resolve this ambiguity and uncertainty that the 1971 Act was framed. The laying down of a definition of ‘contempt’ through a central legislation cannot in itself be considered as impinging upon a court’s inherent jurisdiction to punish contempt.

The Law Commission Report noted that “the suggestion to delete the provision relating to ‘criminal contempt’ inter alia ‘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” . But this argument that the constitutional power of the court to punish contempt cannot be restricted in any manner, if taken to the extreme, would imply that the courts have complete discretion to decide what amounts to ‘contempt’ and may prescribe any punishment they like.

While the Constitution allows courts to punish contempt, there is nothing in the Constitution which restrains the legislature (or the Supreme Court) from narrowing down the definition of contempt. The inherent power of a court to enforce its verdicts and administer justice need not necessarily extend to punishing anything which scandalises or lowers the authority of the court. Therefore, the Law Commission’s reliance on constitutional provisions to retain the current definition of contempt (as under the 1971 Act) is weakly founded, if not misplaced. The Supreme Court can strike down Section 2(c)(i) as unconstitutional if the Court is convinced that this provision is an arbitrary and unreasonable restriction on freedom of speech.

Furthermore, it can also be argued that treating this category of contempt as a criminal offence is unnecessary and disproportionate. For example, it is not clear why direct or ‘wilful disobedience’ of a judgment of the court is considered ‘civil contempt’ but the publication of matter which tends to interfere with the administration of justice is treated as a criminal offence; it is certainly plausible that the former may be more disruptive to delivering justice than the latter.

The arbitrary manner in which this offence of contempt could be used was highlighted when serious allegations of sexual harassment were made against the ex-CJI, Ranjan Gogoi. In relation to these sexual harassment allegations, the Court released a statement, advising “the media to show restraint, act responsibly…as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary”. By equating his own reputation with that of the judiciary, Justice Gogoi effectively avoided an in-depth investigation into his actions and escaped the consequences of his alleged misconduct. This brings the light the deeply dangerous implications of criminalising any matter which ‘scandalises’ or ‘lowers the authority’ of the court.

Moreover, the reputation of the judiciary cannot be protected by silencing opinions or facts which may be damaging to the institution; this in fact contributes to its corruption. Instead of stifling criticism, we must realise that it is only by exposing the judiciary’s corruption and allowing criticism of its actions that the integrity and independence of the judiciary will be ensured. However, the offence of contempt on the ground of ‘scandalising’ the court serves precisely to suppress such criticism or discussion about the courts. Therefore, this offence of contempt is not only excessively repressive on citizens’ free speech, but also fails to achieve its objective of protecting the integrity of the judiciary. It would do us well for this provision to be struck down as unconstitutional.

 

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