The chilling effect of criminal contempt

The chilling effect of criminal contempt

By, Justice A.P. Shah is retired Chief Justice, Delhi and Madras High Courts, and former Chairperson, Law Commission of India

Context

• Supreme Court of India have dozens of constitutional cases that need to be desperately addressed, such as the constitutionality of the Citizenship (Amendment) Act, the electoral bonds matter, or the issue of habeas corpus petitions from Jammu and Kashmir.
• It is disappointing that instead of taking up matters of absolute urgency in these peculiar times, the Supreme Court chose to take umbrage at two tweets. It said that these tweets “brought the administration of justice in disrepute and are capable of undermining the dignity and authority of the institution... and the office of the Chief Justice of India in particular….” Its response to these two tweets was to initiate suo motu proceedings for criminal contempt against the author of those tweets, the lawyer and social activist, Prashant Bhushan.

Origin of criminal contempt of court:

• This need to “respect the authority and dignity of the court” has monarchical origins from when the King of England delivered judgments himself.
• But over the centuries, with this adjudicatory role now having been handed over to judges, showing extreme deference to judges does not sit well with the idea of a democracy.
• The U.K. Law Commission in a 2012 report recommending the abolition of the law of contempt.

A wide field in India

• The objective for contempt is stated to be to safeguard the interests of the public, if the authority of the Court is denigrated and public confidence in the administration of justice is weakened or eroded.
• But the definition of criminal contempt in India is extremely wide, and can be easily invoked.
• Suo motu powers of the Court to initiate such proceedings only serve to complicate matters.
• And truth and good faith were not recognised as valid defences until 2006, when the Contempt of Courts Act was amended.
• Nevertheless, the Delhi High Court, despite truth and good faith raised as defences, proceeded to sentence the employees of Mid-Day for contempt of court for portraying a retired Chief Justice of India in an unfavourable light.
• It comes as no surprise that 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.
• A law for criminal contempt is completely asynchronous with our democratic system which recognises freedom of speech and expression as a fundamental right.
• An excessively loose use of the test of ‘loss of public confidence’, combined with a liberal exercise of suo motu powers, can be dangerous, for it can amount to the Court signalling that it will not suffer any kind of critical commentary about the institution at all, regardless of how evidently problematic its actions may be.
• Besides needing to revisit the need for a law on criminal contempt, even the test for contempt needs to be evaluated.

Obsolete abroad

• Already, 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.
• Canada ties its test for contempt to real, substantial and immediate dangers to the administration, whereas American courts also no longer use the law of contempt in response to comments on judges or legal matters.
• In England, too, from where we have inherited the unfortunate legacy of contempt law, the legal position has evolved.
• After the celebrated Spycatcher judgment was delivered in the late 1980s by the House of Lords, the British tabloid, the Daily Mirror, published an upside-down photograph of the Law Lords with the caption, “You Old Fools”.
• Refusing to initiate contempt action against the newspaper, one judge on the Bench, Lord Templeton, reportedly said, “I cannot deny that I am Old; It’s the truth. Whether I am a fool or not is a matter of perception of someone else.. There is no need to invoke the powers of contempt.”
• Even when, in 2016, the Daily Mail ran a photo of the three judges who issued the Brexit ruling with the caption “Enemies of the People”, which many considered excessive, the courts judiciously and sensibly ignored the story, and did not commence contempt proceedings.
• But Indian courts have not been inclined — or at least, not always — to display the same maturity and unruffled spirit as their peers elsewhere.
• It is regrettable that judges believe that silencing criticism will harbour respect for the judiciary.
• On the contrary, surely, any efforts to artificially prevent free speech will only exacerbate the situation further. As was pointed out in the landmark U.S. case of Bridges v. California (1941), “an enforced silence would probably engender resentment, suspicion, and contempt for the bench, not the respect it seeks”. Surely, this is not what the Court might desire.

Two observations and a link

• Simultaneous with the Indian Supreme Court’s decision to commence contempt proceedings against Mr. Bhushan, the Pakistan Supreme Court hinted at banning YouTube and other social media platforms, for hosting what it termed ‘objectionable content’ that ‘incited hatred’ for institutions such as the army, the judiciary, the executive, and so on.
• The eerie similarity between the two sets of observations raises concerns about which direction the Indian Supreme Court sees itself heading. One can only hope that these fears are unwarranted.