By Rakesh Choudhary
On 9 February 2017, Calcutta High Court (HC) Judge C S Karnan failed to appear before the Supreme Court (SC) in connection with contempt proceedings initiated against him by the SC. A bench led by Chief Justice of India (CJI) J S Khekar had initiated the contempt proceedings against Justice Karnan. Justice Karnan had made multiple unsubstantiated allegations against the Madras HC Chief Justice and other judges.
The Contempt of Court doctrine
The Contempt of Court doctrine has been described by Joseph Maskovitz as “the Proteus of the legal world, assuming an almost infinite diversity of forms.” The recent SC contempt proceedings initiated against a sitting High Court Judge aptly exemplifies Maskovitz’s often quoted phrase. This was the first time that a constitutional body had initiated a contempt of court proceeding against a sitting SC or HC Judge. Earlier, in another first in judicial history of the country, former SC Judge Markandey Katju was served contempt notice for writing a blog. The SC had called the blog “an attack on the judges”. Indeed, Indian Contempt of Court law continues to expand its jurisdiction.
The law explained
In India, the Contempt of Court Act of 1971 recognizes two types of contempt: civil contempt and criminal contempt.
Civil contempt is defined as willful disobedience of any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given by a court. There is general consensus over this part of the law.
The controversy arises in understanding criminal contempt. Section 2(c)(i) makes publication in any form that ‘‘scandalizes the court” a criminal offence. To elaborate, any “scurrilous abuse” directed at a court or judges which tends to lower the authority of the court is treated as a criminal offense under the Act.
“Scurrilous abuse” is subjective enough for potential misuse and suppression of freedom of expression.
For example, in EMS Namboodivipad v. TN Nambiar, 1970, the SC upheld the conviction of EMS Namboodivipad, the Chief Minister of Kerala for “lowering the prestige of Judges and Courts in the eyes of the people.” Namboodivipad had made a public statement accusing judges of class bias.
Objective treatment of the law?
In one of the judgements (In re: Arundhati Roy, 2002), the SC had reasoned that contempt of court is the only weapon to restore public confidence in the independence of the judiciary and maintain the rule of law. According to the SC, “… the Judiciary in the country is under a constant threat and being endangered from within and without. The need of the time is of restoring confidence amongst the people for the independence of Judiciary.”
There can be no doubt that the Judiciary as a public institution needs to be respected in a civilized society. However a pertinent question remains if public institution should be propped up through laws or command respect through their conduct. As Hope J stated in the Australian case of Attorney-General for NSW v. Mundey, “public institutions need to stand on their own merit. They cannot be propped up through laws if their conduct does not command respect and confidence.”
There are counter-arguments to above that unlike other public figures such as politicians & bureaucrats, judges cannot respond to public criticism through public debate. Hence, “scandalizing a court” offence is a must. However, for such personal criticisms, defamation laws can be used.
Contempt of Court and freedom of expression
A major criticism of the Contempt law is that it can potentially suppress public criticism and hence undermines freedom of speech and expression. The contempt of court enters the Indian Constitution under Article 19(2) as a reasonable restriction to the right of freedom of speech and expression granted under Article 19(1). It is clear that Constitution does not provide supremacy to freedom of expression over contempt of court.
The Indian contempt law has inherited the concept of scandalising of court from the English law during colonial period. An argument can also be made against embracing this colonial legacy. On the other hand, in 2013, the United Kingdom abolished scandalizing the court offence after recommendation of the Law Commission. Even prior to 2013, this law was rarely used in Britain. In fact, for more than six decades there was no successful conviction in UK under this law.
There is a strong case for the Indian Judiciary to review the contempt law.
At least the scope of controversial section of “scandalizing the court” can be narrowed down if not completely abolished. The Indian Judiciary needs to come out of a siege mentality of perennial threat if it is to be perceived as protector of truth.
While we discuss at length the contempt case against Justice Karnan, the allegations made by him were silenced. As Vinod Bobde wrote aptly:
“In contempt proceedings, the truth or otherwise of the allegation against a judge is irrelevant…fact-finding is an anathema because the truth is happily irrelevant and all that the court is concerned with is the effect or tendency of the allegation.”